Before discussing Article 54 in some detail, I would like to make a couple of introductory comments.
First of all, this lecture is a detailed examination of Article 54,
and is complimentary to the introductory lecture of the same Article;
and as such, I will not discuss the same issues, the overview of Article 54 and it’s purpose
I will primarily talk about jurisprudence of this Article,
which has provided more guidance as to breadth and parameters of Article 54.
Secondly, when discussing jurisprudence with respect to Article 54,
most jurisprudence that I will discuss can be found in two other sources, on the Lexsitus website.
One can be found under the heading Caselaw
and the other under the heading Click, which stands for Commentary on the Law of the International Criminal Court.
When I will discuss the cases in those two sources,
I will make a brief reference
however, when I will refer to a new case which cannot be found in those two sources,
I will give the entire reference of those cases.
When discussing Article 54(1)(a)
which reads as follows:
Prosecutors shall “In order to establish the truth, extend the investigation
to cover all facts and evidence
relevant to an assessment
whether there is criminal responsibility under this Statute, and, in doing so,
, investigate incriminating and exonerating circumstances equally”.
The first thing that has been discussed in regards to this Article,
, is that all investigative activities
by the prosecutor should be directed towards the identification
of evidence that can be eventually be presented in open court.
That was said by Appeals Chamber
in the Lubanga case in October 2008.
The prosecutor is under a duty to investigate
and to potentially exonerating information and evidence
which has to be a continuous, simultaneous process.
However, this process is not to be seen as in the words of the prosecutor in one case,
as an unguided fishing expedition or an infinite duty of the prosecution
to anticipate in the abstract
any statement or act of those witnesses.
This was mentioned in a newer case
of Ruto and Sang Trial Chamber VA,
Court Decision on joint defence application
for further prosecution investigation concerning certain prosecution witnesses, which was decided on January 12, 2015.
The statement can be found in paragraph 37.
The duty of the prosecutor is actually that when investigating
his or her own case
and encounters potentially exonerating information
by questioning witnesses for his or her own case,
the prosecutor will then actively pursue such leads
and try to identify new witnesses and evidence
This was said by the prosecutor in Katanga and Chui
by Trial Chamber in November 2009.
When the prosecutor comes across evidence that is exonerating or exculpatory,
the prosecutor has to make a reasonable effort to obtain that information,
which goes further than just investigating the existence of such evidence,
but also its contents.
This was said in the same Ruto and Sang case that was mentioned,
of 2015 in paragraph 33.
Now there a tension on one hand for a prosecutor to
aggressively or assertively pursue the case against an accused,
on the other hand, to find exculpatory evidence.
And in doing so, especially in the beginning,
there are some practices where the balance between the activity
of finding both inculpatory and exculpatory evidence on the one hand,
and the pursuit of a case against the accused
was not very well met which could be seen by the activities of some of the investigators;
and the courts have taken issue with how this was done.
First of all,
the status of an intermediary, which has been used to find witnesses,
, has come into question in the case of Lubanga
where the Trial Chamber itself, in March 2012, paragraph 367,
was concerned that an intermediary had worked previously
for the Congolese Intelligence Service, and was assisted
by at least one person working for the same services;
could lead to an observation, which was made by the Trial Chamber,
that it’s problematic
for the prosecution to use a person
as an intermediary who actually had close ties to the same government
who had started this case for the International Criminal Court.
So that connection was seen as problematic by the Trial Chamber.
Apart from the status of an intermediary
in using or in investigating and questioning witnesses,
also the techniques used might be problematic, and as such, will weaken probative value of the evidence obtained.
. This was discussed by the Trial Chamber
in the Mbarushimana case
and it is useful to actually
set out in some detail what the concern of the pre-Trial Chamber was;
and in paragraph 51 the pre-Trial Chamber said
that the reading of the transcript of interviews of insider witnesses
is repeatedly left with the impression that the investigator is so attached to his or her theory or assumption
that he or she does not refrain from putting questions and leading terms
and of showing resentment, impatience or disappointment
whenever the witness replies in terms which are not entirely in line with his or her expectations.
Suggesting that the witnesses may not be really remembering exactly what was said,
complaining about having to milk out the witness’s details
which are relevant to the investigation
and lamenting that the witness does not really understand the importance of the investigation
or hinting that the witness might be trying to cover for the suspect
seemed hardly reconcilable with professional
and impartial technique of witness questioning.
This is all said in paragraph 51 of this case.
Going back to the main objective of Article 54(1)(a), namely,
to find both inculpatory and exculpatory evidence,
this is not only the case where the prosecutor
is looking for witnesses for
his own case, to strengthen his own case, but can also be applied
in a situation which happens in the Ruto and Sang case, which I mentioned earlier,
of 2015 where the prosecution was ordered
ordered to seek information in possession of a third party
that related to witnesses of the prosecution but
where the third party information about credibility.
And the credibility of those witnesses
was called into question by this third party
because it was implicated that the witnesses
implicated accused falsely, partially motivated by material gain.
So, when that happens, and when that information came to light,
about possible prosecution witnesses who could then turn hostile,
the prosecution is on obligation to
seek out more evidence about such an allegation by a third party.
It’s not just the witnesses of the prosecution
that can be subject to the obligation in Article 54(1)(a).
When there are submissions in the victim’s application for participation
and those submissions indicate the victims
may possess potential exculpatory information,
the prosecution allegation should extend to discover
any such information in the victim’s possession.
This was said in the case of Prosecutor v. Katanga and Chui,
Judgment on Appeal of Mr. Katanga against the Decision of Trial Chamber II
of January 22, 2010,
Entitled Decision on the Modalities of Victim Participation at Trial.
The decision was rendered on July 16th, 2010
and this statement regarding the exculpatory information can be found at paragraph 81.
This approach can also be found in
two decisions regarding defence request in relation to the victim’s application
for participation in the present case 8th July, 2011;
and in the case of Prosecutor v. Muthaura, Kenyatta and Ali,
Decision on Defence Requests
in Relation to
Victim’s Application for Participation in the Present Case
also July 8th, 2011, paragraphs 12 and 14.
Apart from the use of intermediaries,
the use of which witnesses which are part of the obligation to
share confidential information,
another aspect of Article 54(1)(a)
is that in Lubanga case, the Appeals Chamber
clarified the obligation to establish the truth
is not limited
to the period of time prior to confirmation of charges.
The Appeals Chamber was of the view, and that was the Lubanga case,
of October 2006,
the prosecutor is under an obligation to
find information both before the confirmation and after.
As a matter of fact,
it has been said in a number of cases,
that the obligation to find evidence in general,
both exculpatory and inculpatory, should be
for the most part, be completed before the confirmation of charges.
And that decisions by both Pre-Trial and Trial Chamber
have been concerned about the fact that in some cases the prosecution found
large amounts of evidence after confirmation.
Those cases have said it is possible to continue investigation post confirmation,
but it has not been said as unlimited prerogative.
The cases that have said this have been the Appeals Chamber
in Mbarushimana of 2012,
as well as the case of the Prosecutor v. Kenyatta
of April 2013.
And the upshot of this approach is that
most of the evidence, according to the courts, should have been collected before
the confirmation of charges;
and only in exceptional circumstances
can a prosecutor continue after confirmation
and before trial in collecting evidence.
The exception only applies
when the prosecutor could not have obtained
prior to confirmation
with reasonable diligence the evidence
that was available afterwards.
This is again said in the
Kenyatta case I just mentioned,
but also in the case of Prosecutor v. Nourain and Jamus
of June 2011.
That last case also indicates that the
post confirmation hearing investigation should be finished as soon as possible.
So generally speaking,
the courts have said, the judges have said,
that it is possible in exceptional circumstances
to effect an investigation
post a confirmation of charges.
However, this is not a unanimous view.
One judge has twice in dissent said that in his view,
there is no exception;
that the prosecutor should finish the entire investigation
prior to confirmation of charges.
As said, this was judge Kaul in two decisions
in dissent, so the general rule still stands.
It was said in dissent in the cases of Muthaura, Kenyatta and Ali
of January 2012;
and in the case of Ruto, Kosgey and Sang, of January 2012.
With respect to 54(1)(b),
which says the following:
“The prosecutor shall…Take appropriate measures to ensure
the effective investigation
and prosecution of crimes
within the jurisdiction of the Court,
and in doing so, respect the interests
and personal circumstances of victims and witnesses, including age, gender, health, etc.
This obligation in 54(1)(b)
has been further fleshed out in Article 51
of the Prosecutor’s Code of Conduct, which states as follows:
“In accordance with Article 54(1)(b),
Members of the Office shall ensure that the standards of effective investigation and prosecution are upheld and shall:
(a) act with competence and diligence,
make impartial judgments based on the evidence
and consider foremost the interests of justice
in determining whether or not to proceed;
(b) fully respect the rights of persons
under investigation and the accused
and ensure that proceedings are conducted in a fair manner;
(c) refrain from prosecuting any person whom they believe to be innocent of the charges;
(d) refrain from proffering evidence reasonably believed to have been obtained by means of a violation
of the Statute or internationally recognised human rights if the violation casts substantial doubt
on the reliability of the evidence
or the admission of evidence would be antithetical
to and would seriously damage the integrity of the proceedings.”
With respect to the second part of the sentence, interests of personal circumstances,
that is the only part of this particular provision that has been subject to judicial scrutiny.
And it was said in one case, the named case of Prosecutor v. Chui
of September 2008, that
Article 54(1)(b) is not to be interpreted
as to require the prior consent
of a parent or guardian when looking for testimony of a child.
The last paragraph of 54(1), 54(1)(c)
says that the prosecutor shall
“…fully respect the rights of persons arising under this Statute.”
This paragraph has not been discussed very much in jurisprudence.
It has been discussed in one case, the Kenyatta case
of April 2013,
where the Trial Chamber found the prosecutor failed to fully respect
the right of the person in the statute, in so far as it failed to conduct
a full and thorough investigation of the case against the accused
during pre-confirmation investigation. In other words,
it’s not only seen as now a violation of 54(1)(a)
not to conduct the majority of the investigation pre-confirmation of charges,
it can also be seen as a violation of Article 54(1)(c).
Another case has said that
54(1)(c) can also be violated if
if the prosecutor has concluded confidential agreements pursuant to Article 54(3)(e),
and those agreements prevent the prosecutor from honouring
a disclosure obligation under Article 67 of the Statute.
This problematic issue I will discuss later under Article 54(3)(e).
Article 54(2): “The Prosecutor may conduct investigations on the territory of a State:
(a) In accordance with the provisions of Part 9;
or (b) As authorized by the Pre-Trial Chamber under Article 57, paragraph 3 (d).”
Respect to subparagraph (a) of this particular Article,
which refers to part 9
the operative section in Part 9 is Article 99.
Now, Article 99, which will be discussed by somebody else
under that particular Article, but briefly,
Article 99 is the Article that
obliges States to
cooperate with requests by the Prosecutor.
Article 99(4) allows for an exception
that the prosecutor
can execute requests to a State directly on the territory of a State.
However, that direct activity by the prosecutor on the territory of the State pursuant to
Article 54(2) is limited;
because it can only be done in exceptional circumstances,
if it is necessary for the successful execution of a request
and whether a request can be executed without any compulsory measures.
Examples of such non-compulsory measures are
the interview or taking evidence from a person on a voluntary basis
rather than to do it under a court order.
The second part of Article 54(2)
deals with investigative
acts on a territory of a State
which has been authorized by the Pre-Trial Chamber on 57(3)(d).
This is a very limited provision because it deals with failed States,
in other words, States that are not able,
or willing, to cooperate and in those circumstances would be explained in more detail
when you look at that particular Article.
Under those limited circumstances,
the Pre-Trial Chamber can authorize
the prosecutor to execute
coercive measures on a territory of a State.
Article 54(3) gives the prosecutor
six forms of powers
she can use in order to
investigate a case.
The first one, 54(3)(a),
says: “the Prosecutor may collect and examine evidence.”
This provision has not been subject to any jurisprudence.
The next one, Article 54(3)(b) says:
“The Prosecutor may request the presence of
and question persons
being investigated, victims and witnesses.”
This power has been said that is the Prosecutor’s alone.
The PTC, the Pre-Trial Chamber, has no power to hold the Prosecutor’s investigative functions,
including the taking of testimony unless there is a compelling need to intervene
in instances such as contemplated in Article 57(3)(c).
Article 57(3)(c) says:
“In addition to its other functions under this Statute, the Pre-Trial Chamber may,
where 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.”
This was said in the case of,
called The Second Decision on Application by Nine Persons
to be Questioned by the Officer of the Prosecutor,
which was decided on January 31st, 2011
and can be found in paragraphs 23 and 25.
This part of Article 53, 53(b),
has been the subject of considerable controversy in the area of witness proofing
between the judges of the ICC on one hand
and those of the ICTY and ICTR on the other.
Witness proofing involves providing witness statements to a witness
a few days prior to their testimony, meeting with that witness at a time
to remind the witness of the duty to tell the truth,
discussing with the witness during this meeting
information which may inform a decision
about protection of the witness
and addressing the area of the witness statement that will be dealt with in court
and show the witness any potential exhibits
for his comments prior to testimony.
Both ICTR and ICTY Trial Appeals Chambers
have held that this practice is not only allowed
but eminently practicable.
This can be found at the Appeals Chamber’s level
the case of Karemera of May 11th, 2007
and at the Trial Chamber level
in the case of Milutinovic,
December 12th, 2006,
Limaj, December 10th, 2004
and Dragan Jokic September 16th, 2003.
It’s quite likely that this approach is used
on a regular basis in common law countries
was no problem in the eyes of these judges because the statutes of these institutions
as well as those rules of evidence and procedure, or RPEs,
were in large part inspired by common-law practices.
However, because of the more mixed background
of the Rome Statute and its RPE,
which have much more
of a civil law emphasis,
and of course because of the structure of the ICC, the ICC judges
opted for the view that the practice of witness proofing
by the Prosecutor is prohibited.
As was said in some detail
in the decision of the Trial Chamber I
in the Lubanga case entitled
Decision Regarding the Practices Used to Prepare
and Familiarize Witnesses Giving Testimony at Trial
of November 30th, 2007,
in paragraphs 48-52,
the Trial Chamber considers that allowing a witness to read his past statements
will aid the efficient presentation of the evidence
and help a Trial Chamber to establish the truth.
Witnesses may well, given their original statements,
yield more in advance of their in-court testimony.
The Trial Chamber is aware that it can be difficult to remember
events in exact detail
and the order in which they occurred;
particularly when those events were traumatic.
Thus, greater efficiency
may be achieved by providing past statements to witnesses in advance
to assist that witness with recollection.
Overall, this process will clarify
for the witness events that occurred some time previously.
However, with regard to any discussion on the topics to be dealt with in
court or any exhibits which might be shown to a witness at trial,
the Trial Chamber is not convinced
that either greater efficiency,
or the establishment of the truth
will be achieved by these measures.
Rather, it is the opinion
of the Chamber that this could lead
to a distortion to the truth
and may come dangerously close
to constituting a rehearsal of in-court testimony.
But the Trial Chamber notes
the Prosecution’s undertaking
that it will take all steps to limit
any pre-trial rehearsing
during the proofing session
is not persuaded it will take all steps
to limit any pre-trial rehearsal.
During a proofing session it’s not persuaded
that this is practically achievable.
A rehearsed witness may not provide the entirety,
to the extent of his memory,
a knowledge of a subject
that a Trial Chamber would wish to hear to
totality of the individual’s recollection.
Finally, the Trial Chamber is of the opinion
that the preparation of witness testimony of parties prior to trial
may diminish what would otherwise be helpful spontaneity
during the giving of evidence by a witness.
Further, the Victims and Witness Unit
shall make available to the witness a copy of any witness statements
that they may have made in order to refresh their memory.
The party who is responsible for calling a witness for testimony before the Bench
shall make any previous witnesses available
to the Victims and Witnesses Unit.
Once the process of witness familiarization can be commenced,
any further meeting between a party and his witness
outside of court is prohibited.
While witness familiarization, as defined in this decision,
will be permitted,
as well as the practice of providing the witness,
with the sole purpose to refresh their memory,
with his or her previous statement prior testimony in court,
the practice of witness proofing
as characterized by the Prosecution, is prohibited.
The next Article is 54(3)(c),
which says:
“The prosecutor may seek the cooperation
of any State or intergovernmental organization
or arrangement in accordance with its respective competence and/or mandate.”
As with 54(3)(a), there is no jurisprudence on this particular provision.
Which brings us to 54(3)(d), which says:
The prosecutor may enter into such arrangements or agreements,
not inconsistent with this Statute,
as may be necessary to facilitate the cooperation of a State,
intergovernmental organization or person.”
This particular provision allows State parties to supplement
and go beyond
the obligations under Part 9 of the Statute,
which deals with cooperation between the court and States
and allows for States and international actors
to cooperate with the Prosecutor on a voluntary basis.
On this basis, the Office of the Prosecutor has concluded agreements with a number of States,
including arrangements of modalities
for the conduct of operations
in territories where the Office of the Prosecutor is carrying out
its investigative activities.
Within the Office of the Prosecutor,
the Jurisdiction Complementarity
and Cooperation Division or JCCD, is charged with the building a network
with international cooperation while the Investigation Division, or ID,
is responsible for the implementation of such arrangements.
It follows from Article 107(2)
of the Regulations of the Court, that the Prosecutor has to inform the Presidency
of any arrangement or agreement it intends to negotiate
except when this would be inappropriate
for reasons of confidentiality.
Moreover, according to Regulation 107(1),
the Prosecutor does not have the authority
to negotiate arrangements or agreements with a State
that is not a party to the Statute or any international organization,
when these set out a framework
regarding matters which fall in the competency
of more than one organ of the court.
In such a case, it is only for the President to conclude such arrangements.
Article 54(3)(e) says: “The Prosecutor
may agree 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.”
More controversial is Article 54(3)(e),
which allows the Prosecutor to conclude confidentiality agreements and not to disclose them.
This provision is to be read together with Rule 82 of the RPE.
Among other things, this provision prevents the Prosecutor
from subsequently introducing materials
or information received under Article 54(3)(e) into evidence
without the prior consent
of the provider of the material or information
and adequate prior disclosure to the accused.
It’s clear that such arrangements or agreements
constitute an exception to the Prosecutor’s disclosure obligations.
When the Prosecutor accepts material on the condition of confidentiality,
pursuant to Article 54(3)(e), this may create tensions
with the Prosecutor’s disclosure obligations.
The Prosecutor may be caught in a position
where he is either unable to disclose materials
he has to disclose or
breaches the agreement of the information provider;
see Lubanga, Appeals Chamber, October 21st, paragraph 43.
In its investigation into the DRC situation,
the Prosecutor made broad use of confidentiality agreements pursuant to Article 54(3)(e).
Around 50% of the documents gathered in the DRC are confidential;
see Lubanga, Trial Chamber 1, October 1, 2007, paragraph 13.
This posed challenges to the conduct of several cases before the court,
including the Lubanga case, the Katanga and Chui case as well as the Ntaganda case.
This even led the Trial Chamber to stay the proceedings in Lubanga
after the Prosecutor appeared unable to disclose more than 200 documents
containing potentially exculpatory materials
or information which were potentially material to the cooperation of the defence;
see Lubanga, Trial Chamber I, June 13th, 2008.
The Prosecutor was unable to disclose these documents to the defence because they were received on condition
of confidentiality and the information providers did not subsequently agree to have this confidentiality lifted.
The Prosecutors also were unable to supply
the majority of these documents to the Trial Chamber,
while others were only supplied in redacted form.
Most of this confidential information had been obtained from the United Nations.
These materials included evidence intended to suggest that
the accused had acted in self-defence,
was acting under duress or compulsion,
that he had made efforts to demobilize child soldiers
and that he had insufficient control over the persons
who allegedly perpetrated the crimes he was charged for.
See paragraphs 22 and 71 to 72 of the just mentioned case.
The Appeals Chamber held that while a stay was too
radical a solution in the circumstances,
it was still critical of the conduct of the Prosecutor.
It said that it follows the textual and contextual interpretation of Article 54(3)(e),
that this provision may only be used for the purposes
of generating new evidence; see the same
AC decision as mentioned before, namely the one in Lubanga,
of October 21st, 2008, paragraphs 41 and 55.
It can only be used as a stepping stone for gathering further evidence.
Hence, according to the AC,
whenever the Prosecutor relies
on Article 54(3)(e) of the Statute,
he must bear in mind
his obligation under the Statute
and apply the provision in a manner that would allow the court
to resolve the potential tension
between confidentiality to which the Prosecutor has agreed,
and requirements of a fair trial,
paragraphs 44 and 55 of the same case.
In particular, the Appeals Chamber expressed its concern
that at the time the material was accepted
the Prosecutor agreed that he would
would also not disclose the materials
to the Chambers; thereby preventing the Chamber
from assessing whether a fair trial was still possible,
notwithstanding the non-disclosure of certain documents.
The final assessment whether or not material gathered pursuant to Article 54(3)(e)
has to be disclosed pursuant to
Article 67(2) of the ICC statute,
had it not been obtained under condition of confidentiality,
will have to be carried out by the Trial Chamber.
Therefore, the Trial Chamber should receive the material, paragraph 2.
According to the AC,
whenever a conflict arises
between the Prosecutor’s disclosure obligations
under Article 67(2) and Article 54(3)(e),
the Trial Chamber has to respect confidentiality agreements concluded by the Prosecutor
and cannot order disclosure without first obtaining the prior consent
by the information provider.
This is Article 64(6)(c)
of the ICC statute and Rule 81(3) of the RPE
and a three-tiered process should be followed.
First of all, the Trial Chamber
has to decide whether the Prosecutor would have
had to disclose material had it not been obtained under confidentiality agreement.
Secondly, if this is the case,
the Prosecutor should seek consent of the information provider.
Thirdly, if the provider does not consent to disclosure,
it is for the Trial Chamber to determine whether
and which counterbalancing measures
can be taken to ensure that the rights of the accused
are protected and the trial is fair.
This is said in paragraph 48.
The Appeals Chamber held that in particular,
if only small numbers of documents are concerned,
the tension between confidentiality and the right to a fair trial
may be resolved by other means,
such as identifying new similar exculpatory material,
providing the material in summarized form,
stipulating the relevant facts
or amending or withdrawing the charges,
paragraphs 44 and 28.
This approach
of the three-tier process has also been said in a number of other cases,
such as The Prosecutor v. Ntaganda,
Trial Chamber VI, Decision on Prosecution Request Authorization
of Non-Disclosure of Five Documents,
June 11th, 2015, paragraph 12;
Prosecutor v. Ntaganda Pre-Trial Chamber II,
February 6th, 2014, paragraphs 14 and 15,
Prosecutor v. Nourain and Jamus,
Trial Chamber IV,
June 21st, 2013, paragraph 12,
and Prosecutor v. Nourain and Jamus,
Trial Chamber IV, Public Redacted Version
of the Second Decision on Article 54(3) Documents,
October 26th, 2012, paragraph 9.
From the foregoing, it follows that the Prosecutor should conduct itself with extreme care
in relying on Article 54(3)(e),
which was said in Katanga and Chui case,
Pre-Trial Chamber 1,
June 20th, 2008,
in paragraphs 36 and 38, 39.
The Prosecutor has, since October of 2006,
sought to reduce his extensive reliance
of confidentiality agreements under Article 54(3)(e).
54(3)(f): “The prosecutor may
may take necessary measures, or request that necessary measures be taken,
to ensure the confidentiality of information,
the protection of any person or the preservation of evidence.”
The latter part of this sentence reflects the need to preserve evidence
and is also found in Rule 10 of the RPE.
This rule details that the Prosecutor has the responsibility
for the retention, storage
and security of information and evidence obtained in the course of investigation
by his or her office.
The need to preserve evidence is also reflected
by several other provisions of the ICC statute,
including Article 56, on Unique Investigative Opportunities to Gather Evidence,
Article 18(6) on the possibility of the Prosecutor
to request the Pre-Trial Chamber on exceptional basis
to authorize it to take investigative steps
when the Prosecutor has deferred an investigation or pending a ruling
on admissibility,
or Article 98, on the necessity to preserve evidence
pending a ruling on admissibility or on jurisdiction.
The power to take measures to ensure
the confidentiality of information
is a corollary of the Prosecutor’s power
to conclude confidentiality agreements
pursuant to Article 54(3)(e)
and ensures its efficiency.
From Rule 18(3) of the RPE,
that deals with disclosure,
it follows that in case
steps to ensure confidentiality
or information that has been taken pursuant to Article 54
this information will not be disclosed
except in accordance with Article 54.
Moreover, according to the first part of Article 81(4),
the Chamber should proprio motu
or at the request of the Prosecutor, the accused or any State,
take the necessary steps
to ensure confidentiality of information
in accordance with Article 54.
Finally, as far as measures for the protection of any persons are concerned,
it is clear from the wording “any person”
with the aims of protecting anyone
put at risk by the investigations of the Prosecutor,
which was said in the Katanga case
by the Appeals Chamber on May 13th, 2008
in paragraph 44.
In turn, this provision is complemented by the second part
of the just mentioned rule, 81(4) of the RPE,
which authorizes the Pre-Trial Chamber
to restrict disclosure
and take the necessary steps to protect the safety of witnesses
and victims and members of their families.
While this provision seems to be more strict than Article 54(3)(f),
the Appeals Chamber held that rule 81(4)
should, when read together with Article 54(3)(f),
be understood as to also allow restrictions
on disclosure for the protection of other persons
at risk on account of activities of the court;
in paragraphs 55 and 56.
Furthermore, the appeals Chamber held that no prosecutorial power
to preventively to relocate witnesses
can be deduced from Article 54(3)(f) in isolation.
Rather, this provision should be read
in light of the section as a whole,
which assigns the responsibility of providing protective measures
to victims and witness specifically
to the Victims and Witnesses Unit within the registry.
This was all said in the Katanga and Chui case
by the Appeals Chamber on November 26th, 2008, in paragraphs 69-80.
The Appeals Chamber added in obiter
that it interprets Article 54(3)(f)
and Article 68(1)
as to ensure that the Prosecutor takes general measures
that ordinarily might be expected to arise on a day to day basis
during the course of an investigation by the Prosecution
with the aim of preventing harm
from occurring to victims and witnesses.
These measures may include meeting witnesses in discreet locations
rather than in public and keeping their identities confidential; paragraph 98.