Case Name: ICTY, The Prosecutor v. Simic et al.

TRIAL CHAMBER

1. Date: Decision of 27 July 1999

2. Issue: Whether a third party to the proceedings such as the ICRC is entitled to
intervene to prevent a willing witness from testifying?

a) Whether under conventional or customary international law there is a recognition

that the ICRC has a confidentiality interest such that it is entitled to non-disclosure
of the former employee’s testimony?
b) Whether it will impact of disclosure on the ICRC’s ability to carry out its
mandate?
c) Whether the ICRC’s confidentiality interest should be balanced against the
interests of justice
d) Whether protective measures could adequately meet the ICRC’s confidentiality
interest

3. Relevant Law: ICC, Rules of Procedure and Evidence, Rule 73 - Privileged

communications and information
4. Arguments of The Prosecution
a) Whether ICRC has the right to determine whether ICRC employees or former
employees may not give evidence before the International Tribunal despite their
willingness to do so?
b) Does Trial Chamber have the right to determine whether protective measures protect a
relevant confidentiality interest of the ICRC?

5. Arguments of ICRC
a) A violation of principles of international humanitarian law concerning the role of the
ICRC and its mandate under the Geneva Conventions, the Additional Protocols and
the Statute of the ICRC.
b) ICRC is binded by Principles of confidentiality, impartiality and neutrality.
c) Confidentiality outweigh admittance of such evidence.
The ICRC even argued a three elements test: (1)  the crimes charged must be of the
utmost gravity; (2)  the evidence must be indispensable, in the sense that the case
could not be mounted without it; and (3)  admitting the evidence would not prejudice
the work of the ICRC.
6. Fact not disputed by both parties: The need to make distinction between whether
the was information gathered in an official capacity or in private capacity.
7. Contentious Issues:
a) Whether under conventional or customary international law there is a
recognition that the ICRC has a confidentiality interest such that it is
entitled to non-disclosure of the former employee’s testimony
- The ICRC’s mandate under conventional and customary international law. The -
- Trial Chamber noted that the functions and tasks of the ICRC are directly
derived from international law.
- The General Assembly of United Nation has granted the ICRC the status of
observer to the General Assembly.
 b) The impact of disclosure on the ICRC’s ability to carry out its mandate
- Since ICRC needs have access to camps, prisons and places of detention,
and in order to perform these functions it must have a relationship of trust
and confidence with governments or the warring parties. Therefore, it will
hinder to carry out its mandate.
c) Whether the ICRC’s confidentiality interest should be balanced against
the interests of justice
- The court finds out the there is no question of the balancing of interests
arises as it is rule of customary international law does not require balancing of
interest.
d) Whether protective measures could adequately meet the ICRC’s
confidentiality interest
- The court finds that barring it from admitting the Information necessarily
means that the question of the adoption of protective measures does not arise.

8. Decision: Pursuant to Rule 73 of the Rules of Procedure and Evidence of the

International Tribunal, The Trail court had decided that the evidence of the former
employee of the ICRC sought to be presented by the Prosecutor should not be given.

8a. A Separate Opinion of Judge David Hunt is appended to this Decision:

i) While considering whether or not take it evidence the public interest should be
considered as there might be charges of serious violations of international
humanitarian law.
ii) Is the ICRC's protection against disclosure absolute?
iii) The balancing exercise: His opinion the balance is this case lies clearly in
favor of the ICRC.

9. Analysis:

a) Non- disclosure of Information as right under customary international law: The

ICRC goes on to prove that non – disclosure as customary international law. State
practice + Opinio Juris : As the parties have accepted the fundamental principles on
which the ICRC operates, that is impartiality, neutrality and confidentiality, and in
particular as having accepted that confidentiality is necessary for the effective
performance by the ICRC of its functions and the ratification of the Geneva
Conventions by 188 States can be considered as reflecting the opinio juris of these
State Parties, ICRC has a right under customary international law to non-disclosure of
the Information. Yes, the ICTY Trial Chamber infer the ICRC’s absolute immunity
from the customary law resulting from real practice and the opinio juris of States.
b) Principle of Confidentiality :The case is entirely based on the Principle of
Confidentially which refers to its practice not to disclose to third parties information
that comes to the knowledge of its personnel in the performance of their functions.
The case refers it as a “working tool”.

c) Other Subsidiary Principles: Also, the case is subsidiary based on the principles
of humanity, impartiality, neutrality, independence, voluntary service, unity, and
universality. The case describes it as “derivative principles.

d) Testification as a violation of principle of neutrality, impartiality and

independence(Why are confidentiality and the refusal to testify so important in
the eyes of the ICRC?): In the present case yet confidentiality necessarily follows
from the principles of neutrality, impartiality and independence. As the witness could
spell our facts and incidents which will hamper the neutrality of the organization. The
organization such ICRC is an independent organization, which means that does not
require any other organization’s support to fulfill its mandate. But if its information is
leaked through then the people who have worked with them based on those principles
can stop working with them in future collaboration hindering the mandate of ICRC.

e) Don’t the interests of justice take precedence over this principle of non-
disclosure?: Yes interest of justice should always take precedence over this principle
of non-disclosure but the disclosed information should be kept as privileged
information. But based on principle of utility and mandate, the positive effect of
ICRC is greater and on the principle of non-disclosure their entire mandate of ICRC is
dependent, therefore in this case the judges adjudged that principle of non – disclosure
takes precedence over interest of justice.