Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals

This is the fifth post in my series on the issue of attorney-client privilege in a contempt case in Prosecutor v. Bemba et al. (“Bemba”) at the International Criminal Court (“ICC”). In my first post, I set out the factual background to the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. Wrapping up my discussion of Bemba, in the fourth post, I gave an overview of the crime-fraud exception and an analysis of the legal issues arising from the Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013. and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015. decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence.

One issue that arose in Bemba was whether privileged attorney-client communications could be used as admissible evidence. To elaborate on this question, it is useful to look at the application of other types of evidentiary privileges at the international criminal tribunals.

This blog post is just a sampling of other types of privileges at the international criminal tribunals. It does not list all types of possible privileges, but only gives some illustrative examples of how other privileges apply.

International Criminal Tribunal for the former Yugoslavia (“ICTY”)

The ICTY Rules of Procedure and Evidence (“ICTY RPE” or “ICTY Rules”) only provide an explicit rule covering the attorney-client privilege.3See ICTY RPE, Rule 97. For the application of this rule see Blog Post 3. However, some privileges have been developed through jurisprudence.

Blaškić – State Privilege

In order to gather evidence for the prosecution of crimes, the OTP must often rely on the goodwill and cooperation of States and agencies, international organizations, and other organizations such as NGOs. Under ICTY Rule 39, when conducting its investigation, the OTP may:

(i) Summon and question suspects, interview victims and witnesses and record their statements, collect evidence and conduct on-site investigations;

(ii) Take all measures deemed necessary for the purpose of the investigation and to support the prosecution at trial, including the taking of special measures to provide for the safety of potential witnesses and informants;

(iii) Seek, to that end, the assistance of any State authority concerned, as well as of any relevant international body including the International Criminal Police Organization (INTERPOL); and

(iv) Request such orders as may be necessary from a Trial Chamber or a Judge.

Under Article 29(2) of the ICTY Statute, States have a duty to cooperate with any request for assistance or order issued by the Tribunal, including requests or orders for:

(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.

However, States also have an interest in maintaining confidentiality for national security purposes and may be unwilling to voluntarily disclose information. This raises the question: How broad is the Tribunal’s authority to compel evidence from States and high government officials, and to what extent must States comply with the Tribunal’s orders?

This question emerged in Prosecutor v. Blaškić.4Prosecutor v. Blaškić, IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 18 July 1997. At issue was the validity of a subpoena duces tecum (a subpoena ordering the witness to appear in court and to bring specified documents or things) issued by Judge Gabrielle Kirk McDonald to Croatia and its Defence Minister, Gojko Šušak.5Id., para. 1. Croatia challenged the Tribunal’s legal authority to issue compulsory orders to States and high government officials.6Id., para. 1. Croatia also asserted that the protection of its national security constitutes a privilege, relieving it of any obligation to comply with such orders.7Id., para. 107.

The Trial Chamber upheld the subpoena, holding that there is “a clear obligation on both States and their officials to comply fully with their terms” and that invoking national security interests does not automatically excuse a State or State official from compliance.8Id., para. 150. The Trial Chamber first held that States must comply with requests for assistance or orders issued by the Tribunal.9Id., para. 86. It found that this conclusion was supported by “Articles 19 and 29 of the Statute, Security Council resolution 827, the Secretary-General’s Report, implementing legislation of States, and the status of the International Tribunal as a Chapter VII measure.”10Id.

The Trial Chamber recognized that States enjoy an evidentiary privilege if disclosure “reasonably could been seen as threat to military or diplomatic interest of [a] nation.”11Id., para. 111, quoting Black’s Law Dictionary at pp. 1197 and 1409. However, it held that this privilege is not absolute and that the Trial Chamber must review claims of national security interests before it can decide whether to accept such a claim.12Id., para. 134.

The Trial Chamber found that, though not explicitly provided for, national security interests were contemplated in the ICTY Rules.13Id., paras. 112-15. It noted ICTY Rule 66(C), which, at that point in time provided:

Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-Rule (B). When making such an application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.14ICTY RPE, Rev. 10, 3 December 1996, Rule 66(C). ICTY RPE, Rule 66(C) was subsequently amended. The current Rule 66(C) states: “Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the Rules to disclose that information. When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.”

The Trial Chamber further noted that ICTY Rule 70(B) protects information the OTP receives in confidence, when used solely for the purpose of generating new evidence.15Id., para. 114. ICTY Rule 70(B) states: “If the Prosecutor is in possession of 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 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.”

Finding that the ICTY Statute and Rules did not resolve the issue of the extent to which a State may claim a national security privilege, the Trial Chamber then analyzed claims of national security interests in international tribunals,16Id., paras. 115-22, 139-40. and national tribunals.17Id., paras. 124-30, 141-46. It concluded that “it is clear that a national security privilege may be invoked in certain circumstances and with certain safeguards,”18Id., para. 130. and that questions of national security may be subject to review by the judiciary.19Id., para. 146. Consequently, the Trial Chamber held that it may hold in camera hearings to determine the validity of national security concerns.20Id., para. 148.

            Furundžija – Medical Privilege

MedPrivMedical professionals, such as doctors, psychologists, and other treatment providers, must be able to communicate freely and in confidence with their patients in order to adequately diagnose their patients’ illnesses. The ICTY, lacking an explicit rule, was confronted with the issue of medical privilege in Prosecutor v. Furundžija.

In Furundžija, after the end of closing arguments, the OTP disclosed a redacted certificate from a psychologist concerning a witness and the treatment she received at the Medical Women’s Therapy Centre in Bosnia and Herzegovina.21Prosecutor v. Furundžija, IT-95-17/1-T, Decision, 16 July 1998, para. 2. The Defence argued that by failing to disclose this evidence, which cast doubt on the witness’s memory, the OTP violated ICTY Rule 68,22Id., para. 4. which states that the OTP shall “as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.” The OTP responded that the decision to withhold the disclosure of the certificate was made on the basis of a professional assessment of its content and that there were concerns that the certificate was inadmissible because its probative value was minimal and the disclosure would have been a gross violation of the witness’s privacy.23Id., para. 10.

The Trial Chamber ordered the proceedings to be reopened to allow the Defence to recall any OTP witness for cross-examination strictly on any medical, professional, or psychiatric treatment or counselling received by the witness, and ordered the OTP to disclose any other documents in its possession relating to the certificate and relevant to her treatment.24Id., para. 21 and disposition, p. 8. The Trial Chamber reasoned that the witness (“Witness A”) was:

the survivor of deeply traumatising events, part of which from the subject matter of the charges against the accused. Her testimony has been pivotal to the Prosecution’s case. In the course of the proceedings leading up to and including trial, it has been obvious that she received either counselling or treatment as a result of the events which she endured. The accused’s defence has been conducted on the basis that Witness A’s memory was flawed. Any evidence relating to the medical, psychiatric or psychological treatment or counselling that this witness may have received is therefore clearly relevant and should have been disclosed to the Defence. The Trial Chamber therefore concludes that the Prosecution failed to comply with its discovery obligations.25Id., para. 18.     

Rejecting a privilege for medical or psychological counselling or treatment seems absurd. As one former ICTY Judge remarked:

This seems paradoxical in view of the special protections afforded rape and sexual abuse victims in the Tribunal rule which excludes evidence of past sexual conduct rules out the need for corroboration of the victim’s testimony and severely circumscribes the occasions on which the defense of consent can be used…. Because witnesses are so vital to the success of any international criminal tribunal, we must be scrupulously protective of their rights, as well as the rights of the accused. I hope that the draft rules for the forthcoming International Criminal Court will take careful note of our experience.26Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court, 5 Wash. U. L. & Pol’y 87, 113 (2001).

            Simić et al. – ICRC Privilege

RCRC-flagsThe International Committee for the Red Cross (“ICRC”) maintains a confidentiality policy in order to “reach out and maintain access to people affected by insecurity, violence and armed conflict.”27ICRC, Confidentiality: Key to the ICRC’s Work but not Unconditional, 20 September 2010, https://www.icrc.org/eng/resources/documents/interview/confidentiality-interview-010608.htm. The ICRC, working in warzones where “outside scrutiny and criticism are often unwelcome,” utilizes a policy of confidentiality that “allows [it] to build trust, open channels of communication and influence change.”28Id. The question of whether the ICRC enjoys a privilege before international criminal tribunals was discussed in Prosecutor v. Simić et al.

In Simić et al., the OTP sought to call an ICRC employee as a witness.29Prosecutor v. Simić et al., IT-95-9-PT, Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness”, 27 July 1999, para. 1. The OTP acknowledged the ICRC’s general policy that its personnel could not be summoned to testify before tribunals because this could “impair its ability to perform its humanitarian role in armed conflicts.”30Id., para. 2. However, the OTP did not accept that the ICRC was entitled to claim any privilege or immunity that would protect its personnel from testifying before the ICTY.31Id. In support of its argument, the OTP stressed the wide powers of the Trial Chamber to admit evidence under ICTY Rule 89(C).32Id., para. 40. ICTY Rule 89(C) provides: “[a] Chamber may admit any relevant evidence which it deems to have probative value.”

The Trial Chamber held that its discretion to admit evidence under ICTY Rule 89(C) is not unlimited.33Id., para. 41. It explained that ICTY Rule 89(D) provides the power to exclude evidence “if its probative value is substantially outweighed by the need to ensure a fair trial.”34Id. The Trial Chamber also pointed to ICTY Rule 95, which bars the admission of evidence “obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, or would seriously damage, the integrity of the proceedings.”35Id.

In analyzing whether the ICRC enjoys a privilege before the ICTY, the Trial Chamber first found that the ICRC has a “right under customary international law to non-disclosure of the Information.”36Id., para. 74. It explained that the ICRC “has a pivotal role … to guarantee the observance of certain minimum humanitarian standards.”37Id., para. 72. The Trial Chamber considered that the Geneva Conventions and their Protocols “in light of their fundamental objective” give the ICRC certain powers and the means necessary to discharge its mandate effectively.38Id., para. 72. It noted that State Parties to the Geneva Conventions and their Protocols assumed the ICRC’s policies of neutrality and confidentiality and accepted “that confidentiality is necessary for the effective performance by the ICRC of its functions.”39Id., para. 73. “[R]atification of the Geneva Conventions by 188 States can be considered as reflecting the opinio juris of these State Parties, which, in addition to the general practice of States in relation to the ICRC, leads the Trial Chamber to conclude that the ICRC has a right under customary international law to non-disclosure of the Information.”40Id., para. 74.

The Trial Chamber held that the former ICRC employee should not be compelled to give evidence,41Id., Disposition. “The rule, properly understood, is, in its content, unambiguous and unequivocal, and does not call for any qualifications. Its effect is quite simple: as a matter of law it serves to bar the Trial Chamber from admitting the Information.”42Id., para. 76.

            Brđanin and Talić – War Correspondent’s Privilege

WarCoOriginalStuffIn an open society, the public should be informed and provided with accurate information concerning ongoing events. As articulated by the European Court of Human Rights in Fressoz and Roire v. France: “Not only does the press have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them.”43Fressoz and Roire v. France, ECHR App. No. 29183/95, Judgement, 21 January 1999, para. 51. War correspondents who cover conflicts often face the possibility of retaliation. As a matter of public policy, the value of obtaining information (informing the public) has been said to warrant special protection.44Karim Khan & Gissou Azarnia, Evidentiary Privileges, in K. Khan, C. Buisman & C. Gosnell, Principles of Evidence in International Criminal Justice 558 (Oxford 2010). This issue arose in Prosecutor v. Brđanin and Talić.

In Brđanin and Talić, the issue was whether a war correspondent could be compelled to give testimony concerning an interview he conducted while reporting on the conflict in Yugoslavia.45Prosecutor v. Brđanin & Talić, IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002, para. 2. The OTP requested the Trial Chamber to issue a subpoena to a correspondent for the Washington Post about an article that contained quotes from Radislav Brđanin about the situation in Banja Luka and surrounding areas.46Id., paras. 3-4. The correspondent refused to comply with the subpoena.47Id., para. 5. The Trial Chamber upheld the subpoena, refusing to recognize a testimonial privilege for journalists “when no issue of protecting confidential sources was involved[.]”48Id.

In analyzing privilege in general, the ICTY Appeals Chamber held:

In determining whether to issue a subpoena, a Trial Chamber has first of all to take into account the admissibility and potential value of the evidence sought to be obtained. Under Rule 89(C) of the Rules, a Trial Chamber “may admit any relevant evidence which it deems to have probative value,” and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Secondly, the Trial Chamber may need to consider other factors such as testimonial privileges. For instance, Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.” Similarly, in the Simic case, the Trial Chamber made it clear that the ICRC has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.49Prosecutor v. Brđanin & Talić, IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002, para. 32.

The Appeals Chamber held that the Trial Chamber may only compel a war correspondent to testify if the evidence sought by the party seeking the subpoena “is direct and important to the core issues of the case.”50Id., para. 48. In upholding a privilege for war correspondents, the Appeals Chamber reasoned that “a vigorous press is essential to the functioning of open societies and that a too frequent and easy resort to compelled production of evidence by journalists may, in certain circumstances, hinder their ability to gather and report the news.”51Id., para. 35. Accordingly, the Appeals Chamber considered that society’s interest in protecting the integrity of newsgathering is “particularly clear and weighty in the case of war correspondents.”52Id., para. 36. It noted that in war zones, accurate information is difficult to obtain and disseminate considering the dangers involved.53Id. The Appeals Chamber also considered that:

in order to do their jobs effectively, war correspondents must be perceived as independent observers rather than witnesses for the Prosecution. Otherwise, they may face more frequent and grievous threats to their safety and to the safety of their sources. These problems remain, contrary to what was held by the Trial Chamber, even if the testimony of war correspondents does not relate to confidential sources.54Id., para. 42.

International Criminal Tribunal for Rwanda (“ICTR”)

Similar to the ICTY Rules, the ICTR Rules of Procedure and Evidence (“ICTR Rules” or “ICTR RPE”) only provide for the attorney-client privilege.55See ICTR RPE, Rule 97. For a discussion of ICTR Rule 97 related to the attorney-client privilege, and for the application of this rule see Blog Post 3. ICTR practice has confirmed the ICTY’s approach regarding the privilege of the ICRC. In Prosecutor v. Muvunyi, the ICTR determined the extent to which a similar privilege would be afforded to national Red Cross societies.

Prosecutor v. Muvunyi – Privilege Afforded to National Red Cross Societies

In. Muvunyi, the Defence requested that Witness TQ’s testimony be excluded because he was a former ICRC employee and could not testify to information he acquired while carrying out the ICRC’s mandate.56Prosecutor v. Muvunyi, ICTR-2000-55A-T, Reasons for the Chamber’s Decision on the Accused’s Motion to Exclude Witness TQ, 15 July 2005, para. 2. The OTP responded that the witness was not an ICRC employee but merely a local volunteer for the Belgian Red Cross Society (“BRCS”), and was never required to sign a pledge of discretion or obligated to respect the ICRC’s policies of neutrality and confidentiality.57Id., para. 7.

The Trial Chamber emphasized that “the ICRC and national Red Cross societies are entirely different organisations in law” and a clear distinction must be drawn.58Id., para. 15. It noted that the BRCS is “a national organisation with a national statute and national arrangements.”59Id. (italics in original). It stated that while the ICRC enjoys an “exceptional privilege of non-disclosure,” this privilege does not extend to national Red Cross societies.60Id., para. 16. It considered that the ICTY’s holding in Simić et al. does not “‘open the floodgates’ in respect of other organizations.”61Id., quoting Prosecutor v. Simić et al., IT-95-9-PT, Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness”, 27 July 1999, paras. 73-74. Having found that there was no evidence to suggest that BRCS was acting on behalf of the ICRC, or that the BRCS was integrated into an ICRC team, the Trial Chamber declined to extend any privilege to Witness TQ.62Id., para. 18.

Special Court for Sierra Leone (“SCSL”)

Like the other ad hoc tribunals, the SCSL Rules of Procedure and Evidence (“SCSL Rules” or “SCSL RPE”) only provide for the attorney-client privilege.63See SCSL RPE, Rule 97. For a discussion of SCSL Rule 97 related to the attorney-client privilege, and for the application of this rule see Blog Post 3. However, the SCSL has found the existence of other privileges to be implicit in its Rules.

Prosecutor v. Brima et al. – Privilege for Human Rights Officers

Like war correspondents and ICRC employees, human rights officers must often work in dangerous conflict zones, facing potential retaliation. Prosecutor v. Brima et al. discusses the privilege afforded to human rights officers.

In Brima et al., one of the witnesses worked as a human rights monitor for an international organization in Sierra Leone during the indictment period.64Prosecutor v. Brima et al., SCSL-2004-16, Decision on the Prosecution’s Oral Application for Leave to be Granted to Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality, 16 September 2005, para. 14. The SCSL OTP tendered a letter from the witness’s former employer that waived part of his immunity and granted him permission to appear before the SCSL.65Id., para. 14. However, the letter was conditional. Considering the sensitive confidential information the witness was likely to divulge, his employer requested that he testify in a confidential closed session and that the parties be prohibited from divulging the contents of his testimony to the media.66Id., para. 16. The OTP then sought additional protection, requesting the Trial Chamber not to compel the witness to answer questions on cross-examination if he refused to testify on the grounds of confidentiality.67Id., para. 17.

The Trial Chamber dismissed the OTP’s request.68Id., p. 5. The Trial Chamber held that SCSL Rule 70 did not apply to the witness or his testimony because he was the recipient and not the originator of the information.69Id., para. 19. SCSL Rule 70(B) provides:

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.

SCSL Rule 70(D) states: “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.”

The Trial Chamber stated that “[i]n our view Rule 70(D) applies where ‘the person or representative of the entity providing the initial information’ (i.e. the informant himself) has been called upon to testify.”70Id., para. 19 (italics in original). The Trial Chamber recognized a privileged relationship between human rights officers and their informants, “as well as the public interest that attaches to the work if Human Rights officers [are] gathering confidential information in the field,” but did not consider that the privilege or public interest should outweigh the rights of the accused to a fair trial.71Id., para. 20.

The OTP appealed, arguing inter alia that the Trial Chamber incorrectly balanced the privileged relationship between human rights officers and their informants and the public interest against the accused’s fair trial rights.72Prosecutor v. Brima et al., SCSL-2004-16-AR73(B), Prosecution Appeal Against Decision on Oral Application for Witness TF-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality, 19 October 2005, para. 1. The Appeals Chamber granted the OTP’s appeal, holding:

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.73Prosecutor v. Brima et al., SCSL-2004-16-AR73, 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, 26 May 2006, para. 33.

However, the Appeals Chamber recognized that the probative value of the witness’s remaining evidence may be affected by invoking SCSL Rule 70 protection.74Id., para. 34. Thus, it held that the Trial Chamber must assess the evidence in its totality and afford certain procedural safeguards to ensure the fairness of the trial.75Id. These safeguards include: (1) the Trial Chamber’s limited authority to police SCSL Rule 70 applications in order to prevent misapplication, and (2) the Trial Chamber’s authority under SCSL Rule 70(F) to exclude evidence “if its admission would bring the administration of justice into serious disrepute.”76Id., citing Prosecutor v. Milošević, 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 (applying ICTY Rule 70 mutatis mutandis).

Special Tribunal for Lebanon (“STL”)

The STL Rules of Procedure and Evidence (“STL Rules” or “STL RPE”) provides two explicit privileges: the attorney-client privilege and a privilege for the ICRC.77For a discussion of STL Rule 163 related to the attorney-client privilege, and for the application of this rule see Blog Post 3. STL Rule 164 provides that:

The Tribunal shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of 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 possession of in the course, or as a consequence, of the performance by the ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement.

So far, the STL Chambers have not considered any other evidentiary privileges.

ICC

The ICC has the most comprehensive rule on privileges, presumably drawing from the insights of the ad hoc tribunals discussed above.

ICC Rules 73(2)-(5) state that:

(2) Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that:

(a) Communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure;

(b) Confidentiality is essential to the nature and type of relationship between the person and the confidant; and

(c) Recognition of the privilege would further the objectives of the Statute and the Rules

(3) In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion.

(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

Additionally, the Rome Statute allows the OTP to obtain information on a confidential basis from various information-providers. Article 54(3)(e) of the Rome Statute states that the OTP may “[a]gree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents[.]”

Article 57(3)(c) of the Rome Statute, while not expressly deeming it “privilege”, states that the Pre-Trial Chamber may “[w]here necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information.”

Prosecutor v. Lubanga – Privilege for United Nations (“UN”) Officials

United-Nations-logo-200x200According to the Convention on Privileges and Immunities of the United Nations (“UN Convention on Privileges and Immunities”), UN officials are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.”78UN General Assembly, Convention on the Privileges and Immunities of the United Nations, 13 February 1946, Art. V. Article VI of the UN Convention on Privileges and Immunities also provides that UN “experts” will receive immunity for words spoken or written done in the course of a professional mission.

In 2004, the UN reached an agreement with the ICC setting out the scope of privileges and governing the relationship between the two bodies.79Negotiated Relationship Agreement between the ICC and the UN adopted by ICC Assembly of States in The Hague, 7 October 2004 and by the UN General Assembly, 13 September 2004, entry into force 4 October 2004.(“Relationship Agreement”). Article 16(1) of the Relationship Agreement provides:

[i]f the Court requests the testimony of an official of the United Nations or one of its programmes, funds or offices, the United Nations undertakes to cooperate with the Court and, if necessary and with due regard to its responsibilities and competence under the Charter and the Convention on the Privileges and Immunities of the United Nations and subject to its rules, shall waive that person’s obligation of confidentiality.

Article 18(3) provides:

The United Nations and the Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.

The issue of the OTP’s use of confidentiality agreements arose in Prosecutor v. Lubanga.

In Lubanga, the OTP obtained over 200 documents containing potentially exculpatory evidence from the UN pursuant to a condition of confidentiality under Article 54(3)(e) of the Rome Statute that it was unable to disclose to the defence.80Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 53(4)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, 13 June 2008, paras. 63-64. The OTP argued that Article 54(3)(e) “guaranteed confidentiality, unless the information-providers authorised otherwise, because many of them did not wish for their co-operation to be revealed in juridical proceedings.”81Id., para. 24. In defending the confidentiality agreements, the OTP submitted that “it depends upon the co-operation of information-providers who were working under very difficult conditions on the ground and who had made a deliberate decision that, in order to protect staff, their information must be confidential.”82Id., para. 26. The Defence argued that these confidentiality agreements could not take precedent over the Rome Statute or the accused’s right to obtain exculpatory material.83Id., para. 35.

The Trial Chamber held that the OTP incorrectly applied Article 54(3)(e) when it entered into agreements with the UN with the consequence that a significant body of exculpatory evidence was withheld from the Defence, “inhibiting the opportunities for the accused to prepare his defence.”84Id., para. 92(ii). The Trial Chamber reasoned that the wording of Article 54(3)(e) is clear: the “restrictions are that the prosecution should receive documents or information on a confidential basis solely for the purpose of generating new evidence – in other words, the only purpose of receiving this material should be that it is to lead to other evidence[.]”85Id., para. 71 (emphasis in original). The Trial Chamber found that the OTP had applied an overly broad and incorrect interpretation, utilizing the provision routinely in inappropriate circumstances such as making use of the materials at trial.86Id., paras. 72-73. The Trial Chamber stated that confidentiality agreements “should not be allowed to operate in a way that subverts the Statute.”87Id., para. 75.

            Prosecutor v. Mbarushimana Clergy Privilege

In Prosecutor v. Mbarushimana, as discussed in my previous post, the ICC Pre-Trial Chamber decided to review of documents that had been identified as potentially privileged.88Prosecutor v. Mbarushimana, ICC-01/04-01/10, Decision Temporarily Suspending Dealings with Transcripts and Original Recordings of Intercepted Communications and Material Seized from the House of Mr. Callixte Mbarushimana, 25 February 2011. In a subsequent decision, the Trial Chamber modified its procedure for reviewing the materials and allowed the Defence to identify the documents it claimed as privileged.89Prosecutor v. Mbarushimana, ICC-01/04-01/10, Second Decision on Matters Regarding the Review of Potentially Privileged Material, 15 April 2011.

In April 2011, Counsel contacted a member of Mr. Mbarushimana’s religious clergy to verify the content of his communications with Mbarushimana.90Prosecutor v. Mbarushimana, ICC-01/04-01/10, Defence Waiver of Privilege and Request to Consider Sanctions for Misconduct, 30 June 2011, para. 6. From the conversation, the Defence discovered that the clergyman had been contacted by the OTP.91Id. The Defence stated to the clergyman that Mbarushimana would be claiming privilege in respect to their communications.92Id. The clergyman agreed that his conversations with Mbarushimana were made with a reasonable expectation of privacy and that confidentiality was essential to their relationship.93Id. On 19 May 2011, two OTP officials interviewed the clergyman and discussed the contents of his conversations with Mbarushimana.94Id., para. 9. The Defence argued that the OTP officials “slyly managed to get [the clergyman] to confirm that the majority of conversations” were not covered by the privilege under Rule 73.95Id. Claiming misconduct by the OTP, the Defence then filed a waiver of privilege, stating that “the waiver [was] not granted voluntarily but has been forced,”96Id., para. 1. and that the privilege was no longer worth claiming.97Id., para. 12.

The Trial Chamber considered, notwithstanding the waiver, that the communications between Mbarushimana and the clergyman were made in a context outside the scope of Rule 73(3).98Prosecutor v. Mbarushimana, ICC-01/04-01/10, Decision on the Review of Potentially Privileged Material, 15 June 2011, p. 6. The Trial Chamber reasoned “Mbarushimana was not acting in a personal capacity, and the member of the religious clergy in question was not acting as a confidant within the meaning of rule 73(2) of the Rules and the fact that he was a member of a religious clergy was incidental to the relationship.”99Id.

Conclusion

Just as attorneys must main confidentiality with their clients, other persons or entities have various rights and obligations of confidentiality. The various privileges discussed here stem from a need to keep certain material confidential. When determining whether a communication or document falls under a particular type of privilege, it is important to consider the reason necessitating confidentiality.

States have an interest in maintaining the confidentiality of national security matters. Doctors must maintain their patient’s confidentiality so that the patient can discuss with the doctor his or her illness, allowing the doctor to proscribe the correct treatment. The ICRC maintains a policy of confidentiality to carry out its mandate. War correspondents and human rights officers working in the field have benefited from privilege protecting their confidential sources on public interest grounds. UN officials enjoy privileges and immunities granted under the UN Convention on Privileges and Immunities. And lastly, religious clergy maintain confidentiality when giving spiritual advice.

While the ICC’s Rule 73(2) on privilege is by far the most comprehensive, I seriously doubt that it is definitive and exhaustive. Perhaps when dealing with issues of privilege, Wigmore’s four-element test is the most instructive as a point of departure:

(1) The communication must originate in a confidence that it will not be disclosed;

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

(3) The relation must be one in which the opinion of the community ought to be sedulously fostered; and

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.100 Wigmore, Evidence in Trials at Common Law §2285 (1905) (italics in original), available in microform at https://archive.org/stream/cihm_73414#page/n19/mode/2up.


In my next and final post in this series on privileges, I will deal with the scope and contours of immunities afforded to counsel.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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