1:00 (1:30 with the delay in video and audio): Court is back in session following the mid-morning break and the judges’ deliberations regarding the witness protection matter.
Presiding Judge Teresa Doherty: The bench has considered the documents supplied to us by the prosecution. There are points of clarification we require. Justice Sebutinde will explain.
Judge Sebutinde: We asked for a list that indicates the witnesses to whom the July 2004 decision relates. A number of documents have been brought to our intention: the decision itself, and prosecution materials filed leading up to that to decision from April 2004. That document, in its annex, contains a list of 266 witnesses. We were also provided another document from April 2004 – an order to the prosecution, and another “renewed motion of the prosecution”. It appears to us that the sum total of the witness list is divided into two annexes: witnesses of fact [of various categories], and expert witnesses. The decision in question was made in light of these two annexes. It appears that the orders made by trial chamber one in July 2004 were made on the basis of these annexes. We fail to find reference to the witness in question. Can the prosecution show cause why we should not ask this witness to testify publicly?
Prosecutor Julia Bailey: Your reading of the materials, and particularly the new prosecution motion of April 2004, and the July 2004 decision is, with respect, incorrect. The prosecution requested protective measures, including that all witnesses of fact testify using a pseudonym and behind a screen.
Judge Sebutinde: Which witnesses?
Pros: All witnesses.
Judge Sebutinde: Defined where? Where in your motion are these witnesses defined?
Pros: [reads from motion] It’s in reference for to all 266 witnesses. In paragraph 22, prosecution requested the screen and pseudonym for all witnesses of fact.
Judge Lussick: What does paragraph four mean?
Pros: They’re the special categories that were attached to the motion.
Judge Lussick: It gives a list of pseudonyms, which one presumes is the subject matter of the motion.
Pros: The motion goes on to categorize some special groups. It was sought for all witnesses that certain protective measures apply.
Judge Sebutinde: Which of these 266 witnesses are witnesses of fact?
Pros: They all are, but to some the special categories apply. The prosecution noted that categories could help in handling these: witnesses of fact and experts.
Judge Sebutinde: Where in these documents can we find these two groups?
Pros: I can’t answer that question.
Judge Sebutinde: I suggest that Annex A contains group 1, witnesses of fact, and Annex B contains group 2, expert witnesses. That seems logical.
Pros: Allow me to confer on that point. [prosecution team confers] The prosecution position is that Annex A relates to the three categories of the categories of group 1 witnesses – all witnesses in special categories. Some, but not all, are witnesses of fact.
Judge Sebutinde: Where is the rest of group 1?
Pros: The rest of them are all listed among the 266. In paragraph 35, the prosecution requested the trial chamber to order that all witnesses should be referred to by pseudonyms at all times.
Judge Sebutinde: That has to be seen in context. Category 1 is stated plainly. I don’t see the words “and the balance of the witnesses in the witness list”. I see a division into group one – witnesses of fact, further sub-divided into groups A, B, and C, and group two, expert witnesses.
Pros: We read the motion as all 266 witnesses are divided into two groups: group 1 with witnesses of fact – including the current witnesses. Group 1A witnesses were all to have pseudonyms and a screen.
Judge Lussick: What is the purpose of Annex A if the measures are to be applied to all 266 witnesses?
Pros: Those were for special categories of witnesses with additional protective measures.
Judge Sebutinde: The order to the prosecution asked for justification for each witness. There should have been another annex for witnesses who didn’t fall into categories A or B. I find it hard to assume that we’re to go back to the old list and glean out which witnesses should have protective measure.
Pros: The court ordered it.
Judge Sebutinde: The order applies to the definitions, but those aren’t clear. It appears to us that the orders refer to the witnesses in the annexes.
Judge Doherty: The motion refers to a prosecution filing. Where is that order? Is that the order of the second of April? It says here the first of April. It has a different title. That appears to be another order. The paragraph refers to protective measures for “those witnesses”. Who are “those witnesses”?
Pros: The list of witnesses to be filed.
Judge Doherty: Is that filing not a disclosure to the defense of their witnesses?
Pros: It is a list of witnesses filed pursuant to the court order of 2 April to file their witness list.
Judge Lussick: I’m still trying to get my hands around this problem. You’re not seeking protective measures for 266 witnesses. That’s indicated in para. 5. From my understanding, this upcoming witness is a witness of fact. In para. 3 of your motion, you say that witnesses of fact are subdivided into victims of sexual assault, children, and insiders. You say that their pseudonyms are listed in the annex. You don’t say there are four categories of witnesses of fact. What you’re saying to the court is that there were more witnesses you didn’t mention who are witnesses of fact, but outside of those categories?
Pros: No. We’re saying there are some in group 1 who are not in groups A, B, or C. They’re ordinary fact witnesses.
Judge Lussick: Para. 4 says the pseudonyms of the group 1, divided into three categories, are in Annex A, but now you’re saying they’re not all in Annex 1?
Judge Doherty: In the July 2004, there’s no reference to this document. It’s not clear that the court took it into account in their decision?
Pros: It says in the order that the prosecution has based its filing on a list in three categories.
Judge Sebutinde: It says “based on”. The duty was the prosecutions to define what measures they wanted for which categories. There’s no justification for this category you’re talking about. All of the justifications for protection apply to categories A, B, or C.
Pros: “Prosecutions maintains that situation in SL makes conditions difficult to all witnesses.” This refers to all witnesses, then there are additional justifications for the other witnesses.
Judge Doherty: What is the defense reply?
Defense Counsel Morris Anyah: I see the issues the court is grappling with. I think there is some clarity on these in the documents. I would point the chamber and the prosecution to footnote 6 in the order. The prosecution motion was not properly drafted. The motion was limited to these expressly defined categories. Trial Chamber 1 had a status conference, where the prosecution argued there were other witnesses in need of protection. The chamber asked them to put it in writing. That’s what this April order means. The prosecution filed a witness list with a renewed motion. It essentially leaves vague what happens to the witnesses beyond the 87 in these three categories. The chamber said on July 5, 2004 applied to “all witnesses in group 1” who were defined in the latter prosecution motion. This witness in question is not in that group.
1:33 (2:03 with the delay in video and audio) Judge Doherty: We will adjourn for lunch and then we will deliberate on this issue. We will resume not at 2:30, but when parties are notified.