Interaction between Rules 89(D) and 70(G)

Notion(s) Filing Case
Decision on Adding Wesley Clark to Witness List - 20.04.2007 MILUTINOVIĆ et al.

The Prosecution argued that the Trial Chamber erred in not applying Rules 70(G) and 89(D) after the Trial Chamber heard General Clark’s testimony.[1] The Appeals Chamber held that the Trial Chamber correctly applied the Rules.[2] It then held:

18. Furthermore, this analysis does not change simply because the Trial Chamber was considering whether to admit a Rule 70 witness subject to conditions imposed by a Rule 70 provider. While Rule 70(C) and (D) of the Rules refers to certain restrictions on a Trial Chamber in hearing a witness testify to confidential material provided by a Rule 70 provider, those restrictions apply only after the Trial Chamber has determined that the Rule 70 witness testimony “elected” to be presented by a party at trial[3] is admissible under Rule 89 of the Rules. In making that determination, a Trial Chamber is entitled under Rule 70(G) of the Rules to consider whether the Rule 70 restrictions stipulated with respect to that witness testimony would undermine the need to ensure a fair trial and substantially outweigh the testimony’s probative value such as to lead to exclusion of that testimony. A Trial Chamber is not obliged to automatically admit such Rule 70 witness testimony where it is deemed relevant and probative and, only afterwards, asses the actual unfairness caused to the trial by the Rule 70 conditions as applied. The Appeals Chamber recalls that Rule 70 protections on confidential information provided by States have been incorporated in the International Tribunal’s Rules in recognition of the need of States for safeguards with respect to certain State interests. They have also been included to allow and to encourage States to fulfil their cooperation obligations under Article 29 of the Tribunal’s Statute[4] by providing a broad range of information relevant to a particular case.[5] However, this deference to States’ interests does not go so far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial.[6] In sum, under Rules 70(G) and 89(D) of the Rules, a Trial Chamber may, as the Trial Chamber did here, assess the conditions placed upon proposed Rule 70 witness testimony and determine, without hearing that testimony, that it may not be admitted on the basis that the Rule 70 conditions would result in substantial unfairness to the trial, which outweighs that testimony’s probative value.

19. The Appeals Chamber further finds that the Prosecution’s citation to the Martić Decision in support of its interpretation of the test under Rules (70G) and 89(D) of the Rules is inapposite. While in that decision the Appeals Chamber similarly considered whether limitations on the cross-examination of witness testimony would result in substantial unfairness to the trial which outweighs its probative value and thereby requires its exclusion under Rule 89(D) of the Rules, the question arose after the testimony had already been admitted by the Trial Chamber and only because of the unexpected death of the witness prior to the close of cross-examination. The Appeals Chamber in the Martić Decision did not address whether proposed witness testimony may be excluded prior to its admission under Rule 89(D) of the Rules because of the need to ensure a fair trial. Nor did it consider possible exclusion of proffered witness testimony because it was subject to Rule 70 conditions.

[1] Decision, paras 13-15.

[2] Decision, paras 16-17.

[3] See Rule 70(C) and (F) of the Rules.

[4] Article 29(1) of the Statute reads: “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

[5] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR108bis.2, Decision on Request of the United States of America for Review, 12 May 2006 (“Decision of 12 May 2006”), para. 33.

[6] See Article 20(1) of the Statute. See also Decision of 12 May 2006, para. 28, wherein the Appeals Chamber emphasized that “Rule 70 should not be used by States as a blanket right to withhold, for security purposes, documents necessary for trial from being disclosed by a party for use as evidence at trial as this would jeopardize the very function of the International Tribunal, and defeat its essential object and purpose” (internal quotation marks omitted). 

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ICTR Rule Rule 70; Rule 89(D) ICTY Rule Rule 70; Rule 89(D)