13fpZ7l

28. It is instructive in this regard to compare the practice followed by the ad hoc
tribunals,^» whose statutes and rules of procedure, like the ICC Statute, are also
silent on this issue. The ICTR Appeals Chamber has held:
The Tribimal's Statute and Rules do not directly address the issue of witness
proofing. In the absence of express provisions. Rule 89(B) of the Rules generally
confers discretion on the Trial Chamber to apply "rules of evidence which will best
favour a fair determination of the matter before it and are consonant with the spirit
of the Statute and the general principles of law". ^9
29. While bearing in mind the different statutory provisions that apply to those
tribunals and the non-binding nature of their jurisprudence upon this Court,^ the
fact that the ad hoc tribunals interpreted silence in their statutory provisions to
confer flexibility regarding witness preparation is meaningful when evaluating the
silence in this Court's analogous statutory provisions. Notwdthstanding the
provisions of the ICTR Rules, the Chamber finds that Articles 64(2) and (3)(a)
provide ample authority for the Chamber to adopt a case-specific approach to the
issue of witness preparation.
30. Having established the legal basis for the Chamber to rule on witness preparation,
the next question is whether the practice should be adopted in this case. In the
following section, the Chamber considers the potential merits and risks of witness
preparation.
Merits of witness preparation
L Facilitation of a fair and expeditious trial
ICC-01/09-01/11-524 03-01-2013 12/44 NM T
31. It goes without saying that relevant, accurate and complete witness testimony
facilitates a fair, effective and expeditious trial. The need for clear and focused
^^ See e.g. ICTY, The Prosecutor v. Milutinovic, Case No. IT-05-87-T, Decision on Ojdanic Motion to Prohibit Witness
Proofing, 12 December 2006.
"^^ ICTR, Prosecutor v. Karemara et al. Case No. ICTR-98-44-AR73.8, Appeals Chamber, Decision on Interlocutory
Appeal Regarding Witness Proofmg, 11 May 2007, para. 8.
'^ See Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial
Chamber II of 23 January 2012 entided "Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b)
of the Rome Statute", 24 May 2012, ICC-01/09-01/11-414 (OA 3, OA 4), para. 31.
No. ICC-01/09-01/11 12/21 2 January 2013