138
decides to call a witness at trial, that witness should in principle be subject to the same
scrutiny as Prosecution witnesses. 379
2. The Defence Case
311.
The Defence submits that the Trial Chamber’s Witness Statements Decision was
correctly decided.
312.
The Trial Chamber was correct in holding that the Statute and Rules do not
specifically deal with the problem at issue. 380 The Defence also submits that, in light of the
essentially adversarial system under which the Tribunal operates, the term “the general
principles of law” in Sub-rule 89(B) should be interpreted as meaning “the general
principles of law emerging from adversarial systems”. 381
313.
The Defence submits that the general principles referred to may be summarised as
follows. To begin with, the burden of proving the allegation is on the Prosecution. The
Prosecution must inform the accused of the charges and the evidence against him. The
accused has the right to remain silent and to require the Prosecution to prove its case. There
is no duty similar to that imposed on the Prosecution for the Defence to disclose its
evidence, and the privilege attaching to Defence witness statements is not waived when the
witness in question gives evidence. 382
314.
It is also submitted that to allow such disclosure would increase the inequality of
arms between the parties. 383 Furthermore, the Defence emphasises that because privilege
can be claimed for communications between the client and third parties when litigation is
ongoing in most adversarial jurisdictions, such disclosure would be incorrect. 384
The
Defence also submits that such a disclosure requirement might deter witnesses from
379
Ibid.
Defence’s Substituted Response to Cross-Appellant’s Brief, para. 6.3; Skeleton Argument of the
Prosecution, para. 5(b).
381
Defence’s Substituted Response to Cross-Appellant’s Brief, para. 6.13; Skeleton Argument of the
Prosecution, para. 5(d).
382
Skeleton Argument of the Prosecution, paras. 5(f)-(g).
383
T. 275 (21 April 1999).
384
T. 275, 278 (21 April 1999).
380
Case No.: -94-1-A
15 July 1999
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