1 Rule 54 of the Rules of Procedure and Evidence respectively of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL); Article 64(6) of the Statute of the International Criminal Court (ICC).

2 Article 29 of the ICTY Statute reads: “Cooperation and judicial assistance – 1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons;-(e) the surrender or the transfer of the accused to the International Tribunal.” (Emphasis added.) The same text appears as Article 28 of the ICTR Statute.

3 See Rule 7bis of the ICTY and ICTR Rules of Procedure and Evidence: “Non-compliance with Obligations: (A) In addition to cases to which Rule 11, Rule 13, Rule 59 or Rule 61 applies, where a Trial Chamber or a permanent Judge is satisfied that a State has failed to comply with an obligation under Article 29 of the Statute which relates to any proceedings before that Chamber or Judge, the Chamber or judge may advise the President, who shall report the matter to the Security Council. (B) If the Prosecutor satisfies the President that a State has failed to comply with an obligation under Article 29 of the Statute in respect of a request by the Prosecutor under Rule 8, Rule 39 or Rule 40, the President shall notify the Security Council thereof.” See also ICTY, Prosecutor v. Blaskic (IT-95–14-AR 108 bis), Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 33–37.

4 SFOR have arrested over two dozen indictees in Bosnia-Herzegovina, including, for example, Naser Oric (IT-03–68), Radovan Stankovic (IT-96–23/2), Radomir Kovac (IT-96–23&23/1). KFOR arrested three indictees in February 2003: Haradin Bala, Isak Musliu and Agim Murtezi (IT-03–066).

5 Article 86 of the Rome Statute of the International Criminal Court, 17 July 1998 (hereinafter “ICC Statute”).

6 Article 93(1)(e) of the ICC Statute.

7 Article 87(5) of the ICC Statute: “(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis, (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.”

8 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, Article 17: “Cooperation with the Special Court: 1. The Government shall cooperate with all organs of the Special Court at all stages of the proceedings. It shall, in particular, facilitate access to the Prosecutor to sites, persons and relevant documents required for the investigation. 2. The Government shall comply without undue delay with any request for assistance by the Special Court or an order issued by the Chambers, including, but not limited to: (a) Identification and location of persons; (b) Service of documents; (c) Arrest or detention of persons; (d) Transfer of an indictee to the Court.”

9 The Special Court Agreement, 2002, (Ratification) Act, 2002, Article 20.

10 ICTY, Prosecutor v. Simic et al. (IT-95–9), Decision on the Prosecution Motion under Rule 73 fora Ruling Concerning the Testimony of a Witness, 27 July 1999 (hereinafter “ICRC Decision”), paras. 72–74. The Court found that the ICRC could discharge its mandate only if it could maintain its practice of not testifying before courts. As the work of the ICRC in the promotion and verification of respect for international humanitarian law and in the provision of assistance to victims of conflict is mandated by the Geneva Conventions, States parties to those Conventions were taken to have accepted this practice. The widespread ratification of the Conventions, along with the practice of a considerable number of States to respect the ICRC's confidential manner of working, was found to have created a right for the ICRC not to testify under customary international law. For a discussion of this decision see Jeannet, Stéphane, “Recognition of the ICRC's long-standing rule of confidentiality”, International Review of the Red Cross, No. 838, June 2000, pp. 403–425Google Scholar; and for the ICRC's position more generally see Rona, Gabor, “The ICRC's privilege not to testify: Confidentiality in action”, International Review of the Red Cross, No. 845, March 2002, pp. 207–219CrossRefGoogle Scholar.

11 Rule 73 entitled “Privileged communications and information” includes the following paragraphs: “4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b) Such information, documents or other evidence is contained in public statements and documents of ICRC. 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees. 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than tCRC, the interests of justice and of victims, and the performance of the Court's and ICRC's functions.”

12 ICRC Decision, paras. 73–74.

13 ICTY, Prosecutor v. Brdjanin & Talic (IT-99–36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002 (hereinafter “Randal Decision”).

14 Randal Decision, para. 38.

15 Randal Decision, para. 42–43.

16 Randal Decision, para. 50.

17 Randat Decision, para. 43.

18 Randal Decision, para. 42 (emphasis added).

19 This sets the decision apart from the ICTY's ruling regarding the ICRC, which was based in large part on the ICRC's tradition of confidentiality.

20 Statute of the ICTR, Article 13(4).

21 Statute of the Special Court for Sierra, Leone, Article 20(3): “The judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda. In the interpretation and application of the laws of Sierra Leone, they shall be guided by the decisions of the Supreme Court of Sierra Leone.”

22 Rule 73, “Privileged communications and information”.

23 Rule 70 of the Rules of Procedure and Evidence of the ICTY, ICTR and SCSL; Article 54 of the Statute and Rule 82 of the Rules of Procedure and Evidence of the ICC.

24 See para. (B) of Rule 70 at the ICTY, ICTR and SCSL and para. (4) of Rule 82 at the ICC, cited below.

25 Rule 68 at all three courts, entitled “Disclosure of exculpatory evidence”, provides that the Prosecutor is under a duty to disclose evidence (“material” at the ICTY) “which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of Prosecution evidence”.

26 ICTY, Prosecutor v. Milosevic (IT-02–54-AR108 bis & AR73), Public version of the confidential decision on the interpretation and application of Rule 70, 23 October 2002 (hereinafter “Milosevic Decision”), para. 29.

27 See para. 5 of Rule 82.

28 ICC Statute, Article 54(3)(e).

29 Milosevic Decision, paras. 20, 25. As mentioned above, the ICTY Appeals Chamber decisions have authority in the ICTR and the Special Court for Sierra Leone.

30 See for example ICTY, Prosecutor v. Blaskic (IT-95–14-T), Decisions of 12 and 13 May 1999.

31 ICTY Statute, Article 22, Rule 75; ICTR Statute, Article 21, Rule 75; ICC Statute, Articles 64(6)(e), Rule 87; SCSL Statute, Article 16(4), Rule 75.

32 The accused has a right to a fair and public trial under international human rights law, confirmed in the Statutes of the ICC (Article 67), ICTY (Article 21), ICTR (Article 20) and SCSL (Article 17). This is also seen as a general safeguard against mistakes in or misuse of judicial systems. Measures to disguise the identity of witnesses are an exception to this principle, and must be proportionate.

33 See for example the closed sessions ordered in ICTY, Prosecutor v. Blaskic (IT-95–14-T), Decisions of 12 and 13 May 1999.

34 ICTY, Prosecutor v. Tadic (IT-94-1-T), Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995.