65. Furthermore, the fact that the trial had concluded or that the protected witnesses may have approached Nshogoza did not in any way terminate their protected status. Rule 75(F) of the Rules states that protective measures once ordered continue to have effect in any proceeding before the Tribunal until rescinded, varied, or augmented.[1] In addition, the Kamuhanda Witness Protection Order clearly states that “the [protected] witness does not have the right, without authorization from the Chamber, to disclose his or her identity freely.”[2] This measure was added by the Trial Chamber proprio motu and was not challenged by the Kamuhanda Defence.

66. Although in some circumstances such a measure might be considered onerous, the Appeals Chamber is unable to determine that it was unreasonable or unjustified as a means of ensuring that any waiver is fully informed and voluntary given the information submitted by the Prosecution to the Trial Chamber at the time and the prevailing security climate. Furthermore, Nshogoza has failed to demonstrate why, in the particular circumstances of this case, it would have been impractical or particularly onerous to seek a variation of the Kamuhanda Witness Protection Order before proceeding with further contact with the protected witnesses. Indeed, at the relevant time of the contact, this case remained before either the Trial Chamber or the Appeals Chamber and thus an urgent, and even ex parte, application could have been made.[3]

67. The Appeals Chamber recognizes that such measures might stifle effective Defence investigations where the Prosecution qualifies an excessive number of individuals as potential Prosecution witnesses, in particular without even ascertaining their willingness to appear. However, the Appeals Chamber is not satisfied that this was the case here. Witness A7/GEX was clearly identified to the Kamuhanda Defence as a potential witness willing to appear for the Prosecution on 26 March 2001 shortly before the trial.[4] Nshogoza’s contention that the witness protection measures for Witness A7/GEX should have lapsed at the conclusion of the trial fails to appreciate the Tribunal’s interest in protecting individuals who have agreed to cooperate and provide statements on a confidential basis. Potential witnesses who did not eventually testify may face similar risks as those who did, for instance by virtue of their cooperation with either party. Those who decided not to testify out of fear might also require continued anonymity, depending on the circumstances. In any case, even if Nshogoza were correct that the prohibitions on contact with this particular witness were no longer applicable, it cannot reasonably be argued that he had the right to disclose information, which had been consistently treated as confidential, to third parties without official sanction from a Chamber.