FActs

1. The Prosecutor v. Simic 27 July 1999Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia

2. FActs • Prosecution files an ex parte confidential motion to allow witness testimony about places of detention from a former employee of the International Committee of the Red Cross (ICRC) • The ICRC files an application for leave to appear before the tribunal as amicus curiae(friend of the court) • Tribunal accepts ICRC’s application

3. MAinISSue • Whether the evidence from a former ICRC employee that the Prosecutor seeks to present should be given • At stake: • (1) Importance of testimony for Prosecutor to establish accused’s guilt (2) Impact of information on ICRC’s mandate

4. Sub-issues • (1) Whether conventional or customary international law recognizes that the ICRC has a confidentiality interest entitling it to non-disclosure of its former employee’s testimony • (2) Whether ICRC’s confidentiality interest should be balanced against the interests of justice • (3) Whether protective measures taken by the tribunal could adequately meet ICRC’s confidentiality interest

5. Prosecution’s arguments • (1) Prosecution describes employee as an eye-witness • witness took initiative to contact Prosecution • importance of calling this particular witness to prove guilt of accused • (2) Prosecution doesn’t accept that as a matter of law ICRC personnel are entitled to claim privilege or immunity from testifying before the International Tribunal • Posits issue as whether third parties are allowed to intervene to prevent a willing witness from testifying • Sees privilege as national, narrow legal rules that don’t apply here • Whereas the Rules of the International Tribunal are broad and flexibleand do apply here.

6. ICRC’s Arguments • (1) ICRC contends that evidence of proposed witness belongs to ICRC as it originates from ICRC’s operations. Additionally, the witness signed a pledge of discretion. • (2) ICRC asserts that a testimony regarding its operations would seriously jeopardise its ability to fulfil its mandate because parties (national authorities or warring parties) would likely deny restrict access to prison and detention facilities if they believed the ICRC might subsequently give evidence. • Principles of international humanitarian law • ICRC mandate under the Geneva Conventions and Additional Protocols 3 is to remain neutral and impartial

7. ICRC’s arguments (cont.) • Purpose of mandate: • ICRC is an international body, with its own separate mandate bestowed on it by the international community to better implement international humanitarian law • accordingly, the International Tribunal has no jurisdiction over ICRC • Tribunal has a duty to respect the principle of confidentiality on which ICRC operates and thus not to admit evidence violating that duty • Balancing of interests test: • Tribunal should exclude evidence given without ICRC’s consent unless Prosecution can demonstrate: • (1) crimes charged are of utmost gravity; • (2) evidence is indispensable to case; & • (3) admitting evidence wouldn’t prejudice ICRC’s work.

8. Holding (1) • (1) ICRC’s mandate under conventional & customary international law • Tribunal agrees with ICRC’s reasoning • There is general acknowledgement that the ICRC, an independent humanitarian organisation, enjoys a special status in international law, based on its mandate conferred upon it by the international community • ICRC’s practice not to make public statements about specific acts committed in violation of humanitarian law and attributed to specific persons reflects its fundamental commitment to principle of neutrality • In fragile situations where almost all other humanitarian organisationshave had to leave and ICRC is the only one granted access, it is crucial that it be perceived as independent and neutral

9. Geneva Conventions and Protocols • Humanitarian activities • Article 9 of Geneva Conventions I, II, & III • Article 10 of Geneva Convention IV • Article 81, para 1, of Additional Protocol I • ICRC’s right to substitute for the Protecting Powers • Article 10, para 3, of Geneva Conventions I, II & III • Article 11, para 3, of Geneva Convention IV • System for supervision of internment of prisoners of war & civilians • Articles 126 & 143 respectively of Geneva Conventions III & IV • ICRC’s right of initiative in non-international armed conflicts • Article 3 common to Geneva Conventions

10. Holding (2) • (2) Whether the ICRC’s confidentiality interest should be balanced against the interests of justice. • As ICRC has a confidentiality interest and a claim to non-disclosure of information, no question of balancing of interests arises • Distinction between relationship between International Tribunal and States and relationship between Tribunal & international organisations like the ICRC • Tribunal and ICRC are two independent international institutions, each with a unique mandate conferred by the international community. • Both are based on international humanitarian law and try to better its implementation. • However, their functions and tasks are different. • ICRC’s activities = “preventive” • Tribunal = prosecution of breaches of humanitarian law once committed

11. Holding (3) • (3) Whether protective measures could adequately meet the ICRC’s confidentiality interest • Rule of customary international law bars International Tribunal from admitting the information, thus the question of adopting protective measures doesn’t arise.

12. ratio • The ICRC, an independent humanitarian organisation, enjoys a special status in international law, based on its mandate conferred upon it by the international community • The International Tribunal has a duty to respect the principle of confidentiality on which the ICRC operates and thus not to admit evidence violating that duty