THE APPEALS CHAMBER

DECISION ON PROSECUTION APPEAL AGAINST DECISION ON ORAL APPLICATION FOR WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER QUESTIONS ON GROUNDS OF CONFIDENTIALITY

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding Judge, Justice Gelaga King, Justice Emmanuel Ayoola, Justice Renate Winter, and Justice Geoffrey Robertson, QC;

BEING SEISED OF the “Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality” (the “Prosecution Appeal”), filed by the Prosecution on 19 October 2005 pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”);

CONSIDERING the “Decision on the Prosecution’s Oral Application for Leave to be Granted to Witness TF1-150 to Testify without being Compelled to Answer any Questions in Cross-Examination that the Witness Declines to Answer on Grounds of Confidentiality Pursuant to Rule 70(B) and (D) of the Rules,” rendered by Trial Chamber II on 16 September 2005 (the “Impugned Decision”);[1]

NOTING (i) the Order of the President of 24 November 2005 assigning the matter to the full bench of the Appeals Chamber; (ii) the Order Appointing Human Rights Watch as Amicus Curiae filed by the Appeals Chamber on 24 November 2005; (iii) the Order Appointing the United Nations High Commissioner for Human Rights as Amicus Curiae filed by the Appeals Chamber on 28 November 2005; and (iv) the Order Appointing Amnesty International as Amicus Curiae filed by the Appeals Chamber on 2 December 2005, and its Corrigendum of 5 December 2005;

CONSIDERING ALSO:

(i) The “Joint Defence Response to Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify without Being Compelled to Answer Questions on Grounds of Confidentiality” filed by the three Defendants on 27 October 2005 (the “Joint Defence Response to Prosecution Appeal”);

(ii) The “Reply to Joint Defence Response to Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify without Being Compelled to Answer Questions on Grounds of Confidentiality,” filed by the Prosecution on 31 October 2005 (the “Prosecution Reply”);

(iii) The “Amicus Curiae Submission Filed under Rule 74 of the Rules of Procedure and Evidence of the Special court for Sierra Leone on Behalf of Human Rights Watch,” (the “Human Rights Watch Brief”); the “Amicus Curiae Brief of the United Nations High Commissioner for Human Rights,” (the “UNHCHR Brief”); the “Amicus Curiae Brief of Amnesty International Concerning the Public Interest Information Privilege,” (the “Amnesty International Brief”) all, severally, filed on 16 December 2005;

(iv) The “Joint Defence Response to Amicus Curiae Briefs By Human Rights Watch, Amnesty International and the United Nations High Commissioner for Human rights,” filed by the three Defendants on 17 January 2006 (the “Joint Defence Response to Amicus Briefs”);

NOW DETERMINES THIS APPEAL ON THE BASIS OF THE WRITTEN SUBMISSIONS:

I. INTRODUCTION

1. The Prosecution has appealed the Impugned Decision in which a majority of Trial Chamber II declined to issue an order guaranteeing that Witness TF1-150, a human rights officer with the United Nations, would not be compelled to answer any questions in cross-examination identifying his confidential sources.
   
2. Witness TF1-150 is a foreign national who served as a United Nations human rights officer in Sierra Leone from 1998 to 2001. By virtue of his employment, Witness TF1-150 enjoyed immunity from legal process. By letter dated 23 May 2005, the United Nations waived this immunity in order to enable TF1-150 to testify for the Prosecution in a number of cases before the Special Court. Given the sensitive and confidential nature of the witness’s testimony, this waiver was conditioned upon the witness testifying in closed session, a condition that was granted by the Trial Chamber.[2] Prior to calling the witness to testify, the Prosecution requested the Trial Chamber to guarantee that Witness TF1-150 would not be compelled to answer any questions in cross-examination relating to the names of his confidential informants or sources.
   
3. In the Impugned Decision, the Trial Chamber found that Rule 70[3] did not apply to the witness or his testimony because the Prosecution failed to show, as a necessary precondition to the application of Rule 70, that it was in possession of the “initial information” and because the Witness was the recipient and not the originator of the information.[4] Although the Trial Chamber recognized the special relationship between a human rights officer and his informants, as well as the public interest that attaches to the work of human rights officers gathering information in the field, the Trial Chamber found that these factors did not outweigh the rights of the accused persons to a fair trial as guaranteed by Article 17 of the Statute of the Special Court.[5] The Trial Chamber also considered that the protective measure of hearing the witness in closed session pursuant to Rule 79 of the Rules was sufficient to maintain the confidentiality of the witness’s testimony.[6]
   
4. The Prosecution appealed from the impugned decision on three grounds, namely, that:
   
   1. The majority erred in law in the interpretation and construction of Rule 70(B) and Rule 70(D) of the Rules;[7]
   2. The majority erred in law in distinguishing and finding inapplicable the Public Version of the Confidential Decision on the Interpretation and Application of Rule 70 in the Milošević case;[8] and
   3. The balancing exercise to be carried out by the Chamber was incorrectly formulated and that the majority erred in law in balancing the public interest attaching to the work of human rights officers with the rights of the accused to a fair trial.[9]
      
5. The two main issues that arise from these three grounds of appeal are: whether Rule 70(B) and Rule 70(D) are applicable to the Prosecution’s request; and, whether the majority decision was correct in balancing the public interest attaching to the work of human rights officers with the rights of the accused persons to a fair trial.
   

II. SUBMISSIONS OF THE PARTIES AND THE AMICI CURIAE

A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s request?

6. The Prosecution submitted that the Trial Chamber erred in holding that Rule 70 was not applicable to Witness TF1-150 or his testimony on the ground that the witness’s sources were not “information which has been provided” to the Prosecution within the meaning of Rule 70 (B).[10] The Prosecution relied on a decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), which held that “[t]he fact that information is provided in the form of testimony does not exclude it from being ‘information’ or ‘initial information’ provided under the Rule”[11] to argue that the provision of information in the form of witness testimony on a confidential basis constitutes “information ... provided... on a confidential basis” within the meaning of Rule 70(B) triggering the application of Rule 70 in its entirety.[12]
   
7. The Prosecution also drew a distinction between Rule 70(D) and Rule 70(B), submitting that Rule 70(D) deals with a situation in which information is being presented in evidence. Rule 70(B) deals with the basis upon which information is provided to the Prosecution, as opposed to its form or content when it comes to be presented in court.[13] The Prosecution argued that “[t]he fact that a witness may give evidence as to information provided to him by third parties on a confidential basis does not mean that the witness may not remain protected by the provision of Rule 70 insofar as his testimony was provided to the Prosecution, in the first instance on a confidential basis within the meaning of Rule 70(B).”[14] The Prosecution also noted a distinction between witness immunity and testimonial privilege.[15]
   
8. According to the Defence, the Prosecution’s request that the witness be allowed to withhold information which is not even in the possession of the Prosecution is beyond the scope of Rule 70(B).[16] The Defence submitted that the Trial Chamber was correct in determining that the witness, who is only a recipient of hearsay information, cannot rely on Rule 70.[17] The Defence emphasised that the right of the accused to a fair trial enshrined in Article 17(4)(e) of the Statute includes the right “[t]o examine or have examined, the witness against him or her.”[18] The Defence opposed the proposed limitation on cross examination, explaining that without cross-examination on the sources of the information the evidentiary value of the evidence could not be assessed.[19]
   
9. The United Nations High Commissioner for Human Rights (“UN High Commissioner”) urged the Appeals Chamber to adopt an interpretation consistent with the interpretation given to Rule 70 of the ICTY Rules of Procedure and Evidence by the Appeals Chambers of the ICTY.[20] The UN High Commissioner argued that the Trial Chamber was unduly restrictive in limiting the application of Rule 70(B) to cases where the “provider” of the initial information for purposes of Rule 70(B) is also the source of that information.[21] While the Trial Chamber has the authority to assess whether information was provided by the witness in accordance with Rule 70(B), its enquiry is limited to an examination of whether the information was, in fact, provided on confidential basis.[22]
   
10. Human Rights Watch submitted that Rule 70 should be permissively construed to ensure that a human rights officer acting as a witness would not be compelled to answer a question on grounds of confidentiality or privilege in circumstances such as those in the instant case.[23]
    

B. Was the majority decision correct in balancing the public interest attaching to the work of human rights officers with the rights of the accused persons to a fair trial?

11. The Prosecution submitted that Trial Chamber II erred in balancing the public interest attaching to the work of Human Rights officers, including the privileged relationship between those officers and their informants, against the rights of the accused protected under Article 17 of the Statute.[24] According to the Prosecution, the correct balancing exercise should have been between the public interest attaching to the work of human hights officers and the public interest in having all the relevant information before the Chamber.[25] Applying this test, the Prosecution argued that the balance falls in favour of permitting a human rights officer to refuse to disclose the identities of his sources.[26] The Prosecution submitted that the Rules recognize that non-revelation of some information to the Chamber does not breach the fair trial rights of the accused per se.[27] Moreover, non disclosure of the identities of sources would not prejudice the rights of the accused because the Defence could call other evidence to challenge any information provided by the witness and because the Trial Chamber could determine how much weight, if any, to place on the particular portion of the evidence which was given without a named source.[28]
    
12. The Defence submitted that the rights of the accused should be taken into account and that the issue in this case cannot be equated with other situations involving testimonial immunity or with the special protections accorded to employees of the International Committee of the Red Cross.[29] The Defence argued that the witness cannot seek to rely on the immunities and privileges which have already been waived by the United Nations and that the issue is not one involving freedom of speech.[30] According to the Defence, the protective measure of hearing the witness in closed session is sufficient to safeguard the witness’s informants and the role of the human rights officer.[31]
    
13. The UN High Commissioner explained that confidentiality is an essential element of the working methods of UN human rights officers, and that their work is of fundamental importance to the restoration and maintenance of international peace and security, the rule of law, and the administration of justice.[32] Thus, she argued in favour of a privilege protecting the identities of the confidential sources of a UN human rights officer which is not subject to any balancing of compelling interests, but is subject to a specific exception where exculpatory evidence is involved.[33] In her view, any prejudice to the rights of an accused person could be addressed by reducing the weight to be accorded to the testimony for which the sources are being withheld.[34] The UN High Commissioner submitted that this privilege cannot be waived by the Secretary-General, the High Commissioner, or the human rights officer and that the UN waiver letter did not purport to waive the privilege protecting the confidential sources of a UN human rights officer.[35]
    
14. Amnesty International addressed the public interest in protecting confidential communications concerning human rights violations. According to Amnesty International the public interest information privilege is grounded in the human right to freedom of opinion and expression and, thus, can only be waived by the source and not the human rights officer.[36]
    
15. Human Rights Watch submitted that there is a generally consistent jurisprudence protecting a category of witnesses, including human rights officers, from revealing their sources.[37] Human Rights Watch explained that the accused person would not be prejudiced by expert evidence containing hearsay on factual matters because a court could give appropriate weight to such evidence.[38]
    

III. DELIBERATIONS

16. The Appeals Chamber gratefully acknowledges the extensive and helpful submissions in the briefs.[39] However, this appeal will focus on the two grounds which properly arise from the Impugned Decision, namely: first, the question of the applicability of Rules 70(B) and 70(D) to the Prosecution’s request; and, second, the balancing of the public interest in protecting confidentiality in the work of human rights officers and the public interest in the fair trial of an accused.
    

A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s request?

17. Rule 70 is principally an exception to the disclosure scheme contained in Rules 66 to 69. Rule 70(A) exempts internal documents prepared by a party from these disclosure rules. Rule 70(B) exempts from disclosure “information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence” unless the Prosecutor first gains the provider’s consent. Rules 70(C) and 70(D) recognise the competence of the person or entity providing information under Rule 70 to give evidence but continue to ensure that such person shall not be compelled or required to reveal more than he or she had consented to. Rule 70(E) preserves the right of the accused to challenge the evidence presented by the Prosecution but recognises the limitation to that right in Rules 70(C) and 70(D).
    
18. With regard to the applicability of Rule 70, the Prosecution’s appeal raises two issues: first, did the Trial Chamber err in finding that Rule 70 does not apply because the Prosecution failed to prove that it was in possession of the initial information?; and, second, did the Trial Chamber err in finding that Rule 70(D) did not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information”?
    

1. Did the Trial Chamber err in finding that Rule 70 does not apply because the Prosecution failed to prove that it was in possession of the initial information?

19. It is the possession of the “initial information” which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence that triggers the protection from disclosure of both the information and its origin in Rule 70(B). However, the ICTY Appeals Chamber has explained that, for the purposes of Rules 70(C) and 70(D), the term “initial information” is not limited to evidence used solely for generating new evidence, since these parts of Rule 70 regulate the use of the previously confidential material in court with the consent of the provider:
    

By definition, the information is by this stage no longer being ‘used solely for the purpose of generating new evidence’. It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on confidential basis (the first option), and not that which was so provided and which has been used solely for the purpose of generating new evidence (the second option). In the opinion of the Appeals Chamber, the Trial Chamber erred in adopting the second option rather than the first.

20. The Appeals Chamber agrees with the opinion of the ICTY Appeals Chamber in the Milošević Decision[40] and finds that “information” referred to in Paragraphs (C) and (D) is information which was provided to the Prosecutor on a confidential basis, without the characteristic that it “has been used solely for the purpose of generating new evidence”. The guiding characteristic of the information provided under Rule 70 is that it was provided on confidential basis. That makes the consent of the person who provided the information on confidential basis a pre-condition to disclosure in paragraph (B); makes additional evidence received from that person protected in paragraph (C); and, makes that person, if called as a witness, not compellable to answer any question that he may decline to answer on the basis of confidentiality in paragraph (D).
    
21. It is not profitable to ask whether the term “information” includes the source of the information for the purposes of Rule 70. It is manifest that Rule 70(B) only requires that the Prosecution be in possession of the “initial information”. Both the initial information and its source are protected by Rule 70(B) from disclosure without the prescribed written consent. Even if the Prosecutor was in possession of the source information, he could not be required to disclose it without the provider’s consent.
    
22. The Appeals Chamber, therefore, finds that the Trial Chamber majority erred in holding that Rule 70 applies only where the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, without noting that the condition that the information “has been used solely for the purpose of generating new evidence” does not apply to sub-Rules 70(C) and 70(D). This deficiency affected the Trial Chamber’s conclusion that the Prosecution had failed to show that it was “in possession of that initial information.”
    
23. The Appeals Chamber, moreover, observes that a Trial Chamber should be conscious of the difficulties in assessing the scope of information provided to the Prosecution on a confidential basis. An assertion by the Prosecution that information has been provided on a confidential basis would normally satisfy the Trial Chamber. Notwithstanding these practical limitations, the Appeals Chamber shares the view of the ICTY Appeals Chamber that the jurisdiction of the Trial Chamber to probe the assertion is undoubted:
    

Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefits from the protection afforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.[41]

24. In the instant case, the Defence was concerned with witness’s confidential sources, since the evidence of the witness himself was already disclosed to the Defence. The Defence did not argue and the Trial Chamber did not find that the information concerning the witnesses sources could not have been provided on a confidential basis. In the view of the Appeals Chamber, the Prosecution’s statement that the information had been confidentially provided and the UN letter referring to the “the sensitive and confidential” nature of the witness’s information were sufficient to demonstrate that the Prosecutor was in possession of initial information provided on confidential basis rather than to the contrary.
    
25. The Appeals Chamber, therefore, concludes that the Trial Chamber erred in finding that Rule 70 did not apply because the Prosecution failed to show that it was in possession of the initial information.
    
26. The Appeals Chamber notes that although the Milošević Decision was cited to the Trial Chamber, the majority considered that it was “distinguishable and therefore not pertinent to the case.”[42] The Appeals Chamber considers that this authoritative and historical exposition of the purpose of Rule 70 of the ICTY Rules, on which the Rules of the Special Court are based, should not have been dismissed as “not pertinent” to a case in which the main issue was Rule 70’s applicability.
    

2. Did the Trial Chamber err in finding that Rule 70(D) did not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information”?

27. The Trial Chamber found that the Prosecution could not rely on the protection offered by Rule 70(D) because the witness was neither the “originator of the initial information nor the person or representative of the entity providing the initial information but merely a recipient thereof.” The Trial Chamber reasoned that “Rule 70(D) applied where ‘the person or representative of the entity providing the initial information’ (i.e. the informant himself) has been called upon to testify.” The Trial Chamber categorized the “originator” of the information as “the informant himself” and the witness as “a recipient”.
    
28. The Appeals Chamber finds that this reasoning is flawed in several respects. First, the term “initial information” in Rules 70(B) and 70(C) does not necessarily include all information from which the information provided to the Prosecutor was derived. As explained above, the reference to “initial information” in Rules 70(C) and 70(D) means information provided on confidential basis.
    
29. Second, in Rules 70(B) and 70(C), the Prosecutor is the recipient of the information and the person or representative of the entity who provided the information to him is the “provider”. The actual origin, in the sense of an ultimate originating source, of the information provided to the Prosecutor may not be known or may not be discernable because the information may not have been given to the provider by any single person. More often than not the origin of information gleaned by a provider may be a collection of persons, such as a community piecing knowledge together—a little here a little there—to build up information or an entity collecting facts from different sources to build up information provided to the Prosecutor on confidential basis.
    
30. The category of “originator of the initial information”, coined by the Trial Chamber, is alien to Rule 70 (D). Rule 70(D) grants the person providing or the representative of the entity providing the initial information (“the provider”) protection from compellability in regard to answering questions. Rule 70(D) does not require that the witness is the “originator of the initial information”. Indeed, one of the purposes of Rule 70(D) is to leave to the provider of the initial information the discretion to reveal or not to reveal the source or sources of information provided to the Prosecutor on a confidential basis. The Rules thus enable the witness to remain faithful to the pact of confidentiality, thus preserving the conditions under which the information provided to the Prosecutor may have been obtained.
    
31. The Trial Chamber erred in concluding that Rule 70(D) could not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information”. The Appeal Chamber, thus, finds that the Trial Chamber erred in finding that the provisions of Rule 70 upon which the Prosecution sought to rely were not applicable to the witness or his testimony.
    

B. Was the majority decision correct in balancing the public interest attaching to the work of human rights officers with the rights of the accused persons to a fair trial?

32. Having found that Rule 70 did not apply to Witness TF1-150, the Trial Chamber proceeded to reject the Prosecution’s request on a second basis. While recognizing the privileged relationship between a human rights officer and his informants, as well as the public interest that attached to the work of human rights officers gathering confidential information in the field, the Trial Chamber found that that these considerations should not outweigh the rights of the accused to a fair trial as guaranteed by Article 17 of the Statute of the Special Court. The Prosecution has appealed this finding.
    
33. Since the Trial Chamber has acknowledged the privileged relationship and the public interest arising out of the work of human rights officers, the Appeals Chamber will not delve into these issues in any further detail. However, the Appeals Chamber considers that the special interests of human rights officers who have provided confidential information to the Prosecutor are adequately covered by Rule 70, which can be interpreted as protecting confidential information from disclosure and protecting the provider from certain aspects of compellability. To this extent, a limited testimonial privilege has already been recognized in the Rules. Moreover, insofar as Rule 70 is not focused on the status, office, or profession of the informant, it offers a more general protection. Read purposively, the provisions of Rule 70 can achieve the same purpose as is served by erecting a shield of privilege to protect some categories of persons from compulsion to divulge details and sources of confidential communication or information where appropriate. The purposes served by Rules 70(C) and 70(D) will not be served merely by resort to a closed session. The Rule 70 information provider must be empowered to guarantee anonymity to a confidential source. This guarantee of non-disclosure of identity cannot depend on the chance that a future Trial Chamber might order a closed session hearing or other protective measures.
    
34. However, the probative value of the witness’s remaining evidence may be affected by the invocation of Rule 70 protection. Thus, the fairness of the trial can be ensured by the Trial Chamber’s overriding obligation to assess the evidence in its totality and the following safeguards set out in the ICTY Appeals Chamber’s decision:
    

The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused of their rights to challenge the evidence against them and to receive a fair trial. First [...] the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to ‘exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.’ Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.[43]

35. The Appeal Chamber notes that there is no Rule 70 (G) in the Rules of the Special Court. However, there is Rule 95 which is specifically referred to in Rule 70(F) and which provides that “No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.” This provision is wide enough to cover such cases as would be covered by Rule 70 (G) of the ICTY Rules.
    
36. For these reasons, the Appeals Chamber is satisfied that Rule 70 applies to Witness TF1-150 or his testimony and that the request of the Prosecution should have been granted.
    

IV. DISPOSITION

FOR ALL THE ABOVE REASONS THE APPEALS CHAMBER,

ALLOWS the Prosecutor’s appeal,

QUASHES the Impugned Decision,

AND GRANTS the Prosecution’s oral application for leave to be granted to witness TF1-150 to testify without being compelled to answer questions in cross-examination that the witness declines to answer on grounds of confidentiality pursuant to Rule 70 (B) and (D) of the Rules.

Hon. Justice Robertson is appending his Separate and Concurring Opinion to the present Decision.

Done at Freetown this day 26th of May 2006

[Seal of the Special Court for Sierra Leone]

[1] Pursuant to the Appeals Chamber’s jurisprudence requiring separate and dissenting opinions to be filed together with the related majority decision, the Dissenting Opinion of Justice Doherty filed on 23 September 2006 ought to have been filed on 16 September 2005. See Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris As Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, 8 December 2005, paras. 20–24.
[2] Transcript of 13 September 2005, Oral decision, p. 24.
[3] Rule 70: Matters not Subject to Disclosure
(A)      Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions.
(B)    If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.
(C)    If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. The consent shall be in writing.
(D)    If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality.
(E)    The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to limitations contained in Sub-Rules (C) and (D).
(F)    Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber's power to exclude evidence under Rule 95.
[4] Impugned Decision, para. 19.
[5] Impugned Decision, para. 20.
[6] Impugned Decision, para. 20.
[7] Prosecution Appeal, para. 8.
[8] Prosecution Appeal, para. 9, citing Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002 (the “Milošević Decision”). See also, Prosecution Reply, paras. 2–5.
[9] Prosecution Appeal, para. 10.

[10] Prosecution Appeal, para. 14.
[11] Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002.
[12] Prosecution Appeal, paras. 15–20.
[13] Prosecution Appeal, paras. 21–23. See also, Prosecution Reply, para. 6.
[14] Prosecution Appeal, para. 21.
[15] Prosecution Appeal, para. 22.
[16] Joint Defence Response to Prosecution Appeal, paras. 9–16. See also, Joint Defence Response to Amicus Briefs, paras. 1–26.
[17] Joint Defence Response to Prosecution Appeal, paras. 17–31.
[18] Joint Defence Response to Prosecution Appeal, paras. 32–37.
[19] Joint Defence Response to Prosecution Appeal, paras. 38–43.
[20] UNHCHR Brief, paras. 15–20.
[21] UNHCHR Brief, paras. 17–19.
[22] UNHCHR Brief, para. 20.
[23] Human Rights Watch Brief, paras. 19–26.

[24] Prosecution Appeal, paras. 24–26, 28–54. See also, Prosecution Reply, paras, 7–24.
[25] Prosecution Appeal, para. 26.
[26] Prosecution Appeal, paras. 26–27.
[27] Prosecution Appeal, para. 26.
[28] Prosecution Appeal, para. 55.
[29] Joint Defence Response to Prosecution Appeal, paras. 44–76, 85–93. See also, Joint Defence Response to Amicus Briefs, paras. 27–45.
[30] Joint Defence Response to Prosecution Appeal, paras. 72–76. See also, Joint Defence Response to Amicus Briefs, paras. 48, 52–54.
[31] Joint Defence Response to Prosecution Appeal,, paras. 78–84. See also, Joint Defence Response to Amicus Briefs, paras. 55–65,
[32] UNHCHR Brief, paras. 32–34.
[33] UNHCHR Brief, paras. 21–46.
[34] UNHCHR Brief, paras. 47–63.
[35] UNHCHR Brief, paras. 64–70.
[36] Amnesty International Brief.
[37] Human Rights Watch Brief, paras. 27–57.
[38] Human Rights Watch Brief, paras. 58–63.
[39] As a preliminary matter, the Appeals Chamber notes the Defence objection to the Prosecution’s failure to file copies of jurisprudential authorities referred to in the Prosecution Appeal. The exception created by Article 7(D)(i) of the Practice Direction on Filing Documents before the Special Court, which exempts a party from filing a document when it is “readily available on the internet”, does not include paid or subscription websites. In order to ensure that the parties and the court have access to all necessary authorities, copies of authorities accessed on such websites must be filed pursuant to Article 7(B) of the Practice Direction on Filing Documents before the Special Court.
[40] Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002.
[41] Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002, para. 29.
[42] Impugned Decision, para. 19.
[43] Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002, para. 26.