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Cour Pénale Internationale International Criminal Court ICC-01/04-01/07-176-AnxA 01-02-2008 1/196 SL PT OA2 Cour Pénale Internationale International Criminal Court Original : English N° : ICC-01/04-01/07 Date: 1 February 2008 THE APPEALS CHAMBER Before : Judge Philippe Kirsch, Presiding Judge Judge Georghios M. Pikis Judge Navanethem Pillay Judge Sang-Hyun Song Judge Erkki Kourula Registrar : Mr Bruno Cathala SITUATION IN THE DEMOCRATIC REPUBLIC OF CONGO IN THE CASE OF THE PROSECUTOR v. GERMAIN KATANGA Public ANNEX A to the Defense Document Providing Additional Details on the "Defense Appeal Brief concerning the First Decision on the Prosecution request for Authorisation to redact Witness Statements" The Office of the Prosecutor Defence Counsel Mr Luis Moreno-Ocampo, Prosecutor Mr David Hooper Ms Fatou Bensouda, Deputy Prosecutor Ms Caroline Buisman Mr Eric MacDonald, Trial Lawyer Mrs. Florence Darques-Lane, Legal Adviser n° ICC-01/04-01/07 1/5 1 February 2008 ICC-01/04-01/07-176-AnxA 01-02-2008 2/196 SL PT OA2 2/5 Authorities 1. In the present filing the Defence, pursuant to authorisation of the Appeals Chamber,1 submits a number of authorities which supports the issue raised in the Defence Application to Request Leave to Provide Additional Details and Authorities on the "Public Defence Appeal Brief concerning the First Decision on the Prosecution Request for Authorisation to Redact Witness Statements "." 2. A brief survey of the jurisprudence of international criminal jurisdictions demonstrates that the Single Judge erroneously enlarged the scope of application of rule 81(2) of the Rules by considering as Prosecution sources those individuals - whose identity and identifying information could be redacted pursuant to the said rule - who, despite not being Prosecution witnesses for the purpose of the confirmation hearing, have been or are about to be interviewed by the Prosecution: (ICC) The Prosecution v. Lubanga Dyilo, ICC-01/04-01/06-T-71-ENG ET WT 18-01-2004 4/12 NBT, pages 4, 10. The Prosecution v. Katanga, Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, ICC-01/04-01/07-160, 23 January 2008, para. 29. (ICTY) Prosecutor v. Blaskic, Decision of Trial Chamber 1 on Prosecutor's Requests of 5 and 11 July 1997 on the Protection of Witnesses, Decision of 10 July 1997, http://www.un.ora/ictv/blaskic/trialcl/decisions-e/70710PM1133Q4.htm Order in relation to the Defence Application to Request Leave to Provide Additional Details and Authorities, ICC-01/04-01/07-164, 24.01.08. 2 Defence Application to Request Leave to Provide Additional Details and Authorities on the "Public Defence Appeal Brief concerning the First Decision on the Prosecution Request for Authorisation to Redact Witness Statements", ICC-01/04-01/07-150, 21.01 08. ICC-01/04-01/07 1 February 2008 ICC-01/04-01/07-176-AnxA 01-02-2008 3/196 SL PT OA2 3/5 Prosecutor v. Blaskic, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures, 11 November 1997, para. 10, http://www.un.org/ictv/blaskic/trialcl/decisions-e/71113PM113320.htm Prosecutor v Blaskic, Decision on Prosecutor's request for Authorization to Delay Disclosure of Rule 70 Information, 6 May 1998, para. 14, http://www.un.org/icty/blaskic/trialcl/decisions-e/80506DE113452.htm Prosecutor v. Kordic & Cerkez, Order on Motion to Compel Compliance by the Prosecutor with Rules 66 (A) And 68, 26 February 1999, page 3, http://www.un.org/ictv/kordic/trialc/order-e/90226EV55547.htm Prosecutor v. Brdanin & Talic, Decision on Motion by Prosecution for Protective Measures, 3 July 2000, para. 29-30, http://www.iin.org/ictv/brdjanin/trialc/decision- e/OQ703PM213035.htm Prosecutor v. Brdanin & Talic, Decision on Second motion by the Prosecution for Protective Measures, 27 October 2000, para. 31, http://www.un.org/ictv/brdianin/trialc/decision-e/Q1027PM213940.htm Prosecutor v. Brdanin & Talic, Decision On Fifth Motion By Prosecution For Protective Measures, 15 November 2000, paras. 5-6, http://www.un.org/ictv/brdianin/trialc/decision-e/01115PM213937.htm Prosecutor v. Brdanin & Talic, Decision On Prosecution's Request For Variation Of Third Protective Measures Decision, 29 November 2000, para. 14, http://www.un.Org/icty/brdianiiVtrialc/decision-e/Q1129PM214121 .htm Prosecutor v. Milosevic, Decision On Prosecution Motion For Provisional Protective Measures Pursuant To Rule 69, 19 February 2002, para. 29, http://www.un.org/ictv/milosevic/trialc/decision-e/20219PM517175.htm Prosecutor v. Brdanin & Talic, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002, paragraphs 18-19, http://www.un.org/icty/Supplement/supp33-e/brdianin.htm Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Prosecution Motion to utilize redacted statement and order of non-disclosure, 29 May 2002, pages 2-3 http://www.un.org/icty/milosevic/trialc/decision-e/020529.pdf Prosecutor v. Mrksic, Case No. Case No. IT-95-13/1-PT, Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposing Party, 7 May 2003, pages 2-3, http://www.un.org/icty/mrksic/trialc/decision-e/0305Q7.htm ICC-01/04-01/07 1 February 2008 ICC-01/04-01/07-176-AnxA 01-02-2008 4/196 SL PT OA2 4/5 (ICTR) Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Decision On The Motions Of The Parties Concerning The Inspection And Disclosure Of A Videotape, 28 April 2003, para. 14, http://69.94.11.53/default.htm The Prosecutor v. Bagosora et al, Case No. ICTR-98-41-T, Decision On Disclosure Of Identity Of Prosecution Informant, 24 May 2006, para. 5, http://69.94.11.53/ENGLISH/cases/Bagosora/decisions/240506b.htm The Prosecutor v. Bagosora et al, Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal's Rules of Procedure and Evidence, 25 September 2006, paras. 9 and 11, http://69.94.11.53/ENGLTSH/cases/Bagosora/decisions/250906.htm# ftn32# ftn32 (ECHR) Al-Nashifv. Bulgaria (Application no. 50963/99), Judgment, 20 June 2002, paras. 94- 98, http://www.bghelsinki.org/upload/resources/al-nashif-eng.doc (National Jurisdiction) United States District Court, S.D. Florida., Al NAJJAR v. RENO, 97 F. Supp. 2d 1329, No. 99-3458-CIV., 31 May 31 2000, http://international.westlaw.com/find/default. wl?spa=inthague- 000&rs=WLIN8.01&fn=_top&sv=Split&findjuris=00001&cite=97f+suppl.2d&utid= %7bl 60ABE67-8A96-4305-91B6- 3374A619CF21 %7d&vr=2.0&rp=%2ffind%2fdefault. wl&mt=InternationalLaw (Other source) - United Nations, Economic and Social Council, Commission of Human Rights, Question of the Human Rights of All Persons Subjected to Any Form of Detention or ICC-01/04-01/07 1 February 2008 ICC-01/04-01/07-176-AnxA 01-02-2008 5/196 SL PT OA2 5/5 Imprisonment (Columbia), E/CN.4/1998/39/Add.2, 30 March 1998, paras. 70 and 71, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/elb44569379d86b0802566 59005262b3?Qpendocument ICC-01/04-01/07 1 February 2008 ICC-01/04-01/07-176-AnxA 01-02-2008 6/196 SL PT OA2 IN THE TRIAL CHAMBER Before: Judge Claude Jorda, Presiding Judge Fouad Riad Judge Mohamed Shahabuddeen Registry: Mr. Jean-Jacques Heintz, Deputy Registrar Decision of: 10 July 1997 THE PROSECUTOR v. TIHOMIR BLASKIC DECISION OF TRIAL CHAMBER I ON THE PROSECUTOR'S REQUESTS OF 5 AND 11 JULY 1997 FOR PROTECTION OF WITNESSES The Office of the Prosecutor; Mr. Mark Harmon Mr. Andrew Cayley Mr. Gregory Kehoe Counsel for the Accused: Mr. Anto Nobilo Mr. Russell Hayman http://www.un.org/ictvfolaskic/trialc 1 /decisions-e/70710PM113304.htm Page lof 10 ICC-01/04-01/07-176-AnxA 01-02-2008 7/196 SL PT OA2 l. On 5 June 1997, the Prosecution submitted to the Trial Chamber a motion "for protective measures" (hereinafter "the motion of 5 June 1997"). On 11 June 1997, the Prosecutor filed a second motion, "special request for hearing date" (hereinafter "the motion of 11 June 1997"). Defence counsel for General Blaskic (hereinafter "the Defence"), in its opposition of 13 June 1997 (hereinafter "the response"), responded to those motions. The Prosecutor replied to the opposition in a brief filed on 16 June 1997 (hereinafter "the reply). The Trial Chamber heard the parties during a hearing on 23 June 1997. The Trial Chamber will first analyse the claims of the parties and then discuss all the disputed points of fact and law. 1. ANALYSIS OF THE CLAIMS AND ARGUMENTS OF THE PARTIES 2. In her request of 5 June 1997, the Prosecutor requested that the Judges of this Trial Chamber take measures to ensure the protection of two witnesses who are "employees of a humanitarian organisation". The measures cover six points: 1) the two witnesses will testify in closed session, but counsel for the humanitarian organisation will be permitted in the courtroom to assist, if so required, the two witnesses and the Trial Chamber regarding questions of confidentiality (hereinafter "measure 1"); 2) the witnesses' names and other identifying information, including their association past or present with the humanitarian organisation will not appear in any record of the Tribunal open to the public, including the transcripts of hearings (hereinafter "measure 2"); 3) the motions of 5 and 11 June 1997, and any measure relating to these applications which identify the witnesses and the humanitarian organisation with which they are affiliated will be placed under seal and will not be mentioned in any index listing the sealed documents or proceedings (hereinafter "measure 3"); 4) the accused, the Defence, the Prosecution and their representatives may not disclose
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