International Criminal Tribunal for the Former Yugoslavia

Case No: IT-95-14-PT




3 Case No: IT-95-14-PT

4 Wednesday, 16th April 1997

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6 B e f o r e :

7 JUDGE McDONALD (Presiding Judge)



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11 -v-


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14 Justice Arbour, Professor Crawford and Mr Mark Harmon

appeared on behalf of the Prosecution.

15 Mr Russell Hayman and Mr Anto Nobilo appeared on behalf

of the Defendant.

16 HE Dr Ivan Simonovic, HE Branko Salaj, Mr David Rivkin,

Ms Katharine Baragona and Dr Ivo Josipovic appeared on

17 behalf of the Republic of Croatia.

Madame Vasvija Vidovic appeared on behalf of

18 Bosnia-Herzegovina.

19 Ms Glumac appeared on behalf of the Ministry of Defence

20 of Bosnia-Herzegovina.

21 Amici Curiae (listed overleaf) appeared to assist the

22 Trial Chamber.

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25 - - - - - -



3 1. Professor Alain Pellet, Professor of University of

4 Paris and Institute d'Etudes Politiques, Member of the

5 International Law Commission of the United Nations,

6 appeared on his personal behalf and on behalf of

7 "Juristes sans Frontieres".

8 2. Professor Luigi Condorelli, Professor of

9 International Law, University of Geneva, Switzerland.

10 3. Professor Vladimir Lujbanovic, Professor at Law

11 School in Osijek, appeared on behalf of the Croatian

12 Association of Criminal Science and Practice.

13 4. Mr Andreas Zimmermann, Fellow of Max-Planck Institue

14 of Comparative Public and Public International Law in

15 Heidelberg, Germany, appeared on behalf of Mr Jochen

16 Frowein.

17 5. Professor Ruth Wedgwood, Professor of Law at Yale

18 Law School.

19 6. Professor Peter Malanczuk, Professor of

20 International Law at Amsterdam University.

21 7. Professor Francis Donovan, Debevoise & Plimpton, New

22 York, on behalf of the Lawyers Committee for Human

23 Rights.



  1. 1 Wednesday, 16th April 1997

    2 (10.55 am)

    3 THE REGISTRAR: Case number IT-95-14-PT, the Prosecutor

    4 versus Tihomir Blaskic.

    5 JUDGE McDONALD: May I have appearances for the parties,

    6 please?

    7 JUSTICE ARBOUR: Good morning, your Honour, I am the

    8 Prosecutor, and my name is Louise Arbour. Appearing

    9 with me is Professor Peter Crawford and Mr Mark Harmon.

    10 JUDGE McDONALD: Thank you.

    11 MR HAYMAN: Good morning, your Honour. My name is Russell

    12 Hayman. I am appearing on behalf of General Tihomir

    13 Blaskic. I appear also with my co-counsel Anto Nobilo.

    14 I went looking for General Blaskic this morning. I do

    15 not see him here. He has not waived his appearance.

    16 JUDGE McDONALD: I was not aware of, Mr Hayman, that

    17 General Blaskic -- that you wished to have General

    18 Blaskic here. You are not actually a party to these

    19 proceedings. We did invite you to be present, since you

    20 have also requested that a subpoena be issued. So we

    21 are inviting you really, not as a party, but somewhat in

    22 the nature of an amicus. If you, though, consider that

    23 the presence of General Blaskic is necessary, the Trial

    24 Chamber is very flexible and very willing, but

    25 arrangements would have to be made, and I do not know

  2. 1 how quickly General Blaskic would be able to be brought

    2 to this hearing.

    3 MR HAYMAN: Our position, your Honour, is, since this

    4 matter began, this has been a matter in the case of The

    5 Prosecutor of the Tribunal versus Tihomir Blaskic. We

    6 have never waived our attendance or waived his

    7 attendance, despite the fact this is the first hearing

    8 we have been given notice of and an opportunity to be

    9 present at. Our view is that everybody here but us and

    10 the Prosecutor's office is here in the nature of a

    11 witness or an amicus. We are the party to this matter

    12 other than the Prosecutor's office, we respectfully

    13 submit.

    14 JUDGE McDONALD: The reason that -- I do not want to speak

    15 for Judge Jorda, but the matter was referred first to

    16 me, that is the issuance of the subpoena to Croatia and

    17 Bosnia-Herzegovina, and the reason that it was referred

    18 to me was that Judge Jorda considered that it would be

    19 improper for him to handle ex parte the request for the

    20 subpoena. Then, of course, when you subsequently filed

    21 a subpoena, that was also referred to me, because Judge

    22 Jorda, who was the Presiding Judge for the matter that

    23 involves General Blaskic, likewise considered that it

    24 would be inappropriate for that Trial Chamber, which is

    25 seized of the trial of the matter, to handle that

  3. 1 issue. So if you had requested, of course, earlier for

    2 General Blaskic to be here, I, because I am so flexible

    3 and so willing, would have made arrangements.

    4 What I am telling you is that we are now all ready

    5 -- we are about to begin the hearing and again I do not

    6 know how long it would take to bring him. Let me ask

    7 and see how long. Do you have any objection to our

    8 beginning this matter and then, of course, when General

    9 Blaskic arrives, of course we will continue it. I ask

    10 you for the same flexibility that I am willing to

    11 follow.

    12 MR HAYMAN: Your Honour, the last thing that the defence

    13 wants to do is inconvenience the many counsel and others

    14 who have gathered here this morning. I have vigorously

    15 protested since either late January or early February

    16 directly to the Registrar and her staff the fact when

    17 I first learned of this matter in the newspapers that we

    18 were not -- we, the defence, were not given proper

    19 notice, not given the opportunity to be heard, and

    20 I very much contest that this is a matter other than in

    21 the case of the Tribunal Prosecutor versus Tihomir

    22 Blaskic, a matter to which he is not only a party but

    23 the accused. I am simply not in a position to waive on

    24 his behalf his attendance. I would have to speak to him

    25 personally in order to make an effective waiver of his

  4. 1 attendance. I am sorry, very much.

    2 JUDGE McDONALD: Okay. Mr Hayman, you may have vigorously

    3 protested it but you did not vigorously protest it to me

    4 or this Trial Chamber. I have never received, nor has

    5 this Trial Chamber received, a request that you be

    6 present or that General Blaskic be present now.

    7 I disagree with your characterisation of the events. If

    8 you will have a seat, let me see what can be done to

    9 right it. (Pause.)

    10 Mr Hayman.

    11 MR HAYMAN: Yes, your Honour.

    12 JUDGE McDONALD: The judges have conferred and we consider

    13 that this is not a trial of the matter, nor is it a

    14 proceeding that in any way would require General

    15 Blaskic's presence, but once again in an effort to

    16 accommodate you, we will make a determination of whether

    17 General Blaskic can be brought to the Tribunal, how long

    18 it will take him to be brought, but we will not delay

    19 this hearing today pending his arrival.

    20 MR HAYMAN: I understand and we have stated our position,

    21 your Honour.

    22 JUDGE McDONALD: I have heard you very well. Thank you.

    23 MR HAYMAN: Thank you.

    24 JUDGE McDONALD: Now we were beginning to hear the

    25 appearances of counsel and I think we have heard from

  5. 1 this side. May I hear regarding the appearances for

    2 Croatia, Bosnia-Herzegovina and for the subject of the

    3 subpoena directed to Bosnia-Herzegovina. Yes, sir?

    4 MR SIMONOVIC: I am Ivan Simonovic, Ambassador of Croatia

    5 to the United Nations, and I represent the Government of

    6 Croatia. Together with me is Mr Branko Salaj, Croatian

    7 Ambassador to the Netherlands. Legal counsellors:

    8 Special legal counsel of the Government of Croatia,

    9 Mr David Rivkin; Mrs Katharine Baragona; and Dr

    10 Josipovic, an expert on criminal procedural law.

    11 JUDGE McDONALD: Mr Simonovic or Ambassador Simonovic, are

    12 you an attorney?

    13 MR SIMONOVIC: No, your Honour. I am here in the capacity

    14 of representative of the Government of Croatia and

    15 I intend to deliver a statement of the Government of

    16 Croatia, and the rest of the proceedings will be

    17 presented by special legal counsel.

    18 JUDGE McDONALD: Ambassador Salaj, are you an attorney?

    19 MR SALAJ: No, I am not, and the same that Ambassador

    20 Simonovic has expounded goes for me too, except I am not

    21 giving a statement.

    22 JUDGE McDONALD: I certainly did not mean to imply I would

    23 hold it against you for not being an attorney. Many

    24 people may consider that that is a compliment. I really

    25 wanted to know whether when I am perhaps speaking with

  6. 1 you and Ambassador Simonovic, I will be speaking to you

    2 as an attorney. I gather not. I will be hearing from

    3 Mr Rivkin in that regard; is that correct?

    4 MR RIVKIN: That is correct, your Honour.

    5 JUDGE McDONALD: And perhaps from Mr Josipovic. Now

    6 appearances for Bosnia-Herzegovina.

    7 MME VIDOVIC: Good morning, your Honours. My name is

    8 Vasvija Vidovic, Minister Counsellor in the Embassy of

    9 Bosnia-Herzegovina in The Hague. I here represent

    10 Bosnia and Herzegovina.

    11 MR GLUMAC: I am Jadranka Slokovic Glumac. I am an

    12 attorney at law. I am here as a legal representative of

    13 Mr Anto Jelovic, Defence Minister of Federation of

    14 Bosnia-Herzegovina.

    15 JUDGE McDONALD: Very good. Thank you. We also have

    16 present amici curiae. May I hear from the amici

    17 starting from, I suppose, the left, if you will identify

    18 yourself please? Turn on your microphone, Mr Donovan.

    19 PROFESSOR DONOVAN: Donald Donovan, Debevoise & Plimpton,

    20 New York, on behalf of the Lawyers Committee for Human

    21 Rights.

    22 JUDGE McDONALD: Thank you, Mr Donovan.

    23 PROFESSOR MALANCZUK: My name is Peter Malanczuk. I am

    24 Professor of International Law at the University of

    25 Amsterdam.

  7. 1 PROFESSOR WEDGWOOD: I am Ruth Wedgwood, your Honour,

    2 Professor of Law at Yale Law School, Newhaven,

    3 Connecticut, US.

    4 MR ZIMMERMANN: I am Andreas Zimmermann and I am a Fellow

    5 at the Max-Planck Institute of Comparative Public and

    6 Public International Law in Heidelberg, Germany. Thank

    7 you.

    8 MR LJUBANOVIC: I am Professor Vladimir Ljubanovic from the

    9 law school in Osijek, and I here act as representative

    10 of the Croatian Association of Criminal Science and

    11 Practice.

    12 MR CONDORELLI: My name is Luigi Condorelli. I am a

    13 Professor of International Law at the University of

    14 Geneva.

    15 MR PELLET: Good morning, your Honour. My name is Alain

    16 Pellet. I am Professor for Public International Law at

    17 the University of Paris and Institute d'Etudes

    18 Politiques. I am a member of the International Law

    19 Commission of the United Nations. I appear here both on

    20 my personal behalf and for Juristes sans Frontieres.

    21 Thank you, your Honour.

    22 JUDGE McDONALD: Now before we proceed with the hearing

    23 there are certain preliminary matters which need to be

    24 resolved that have been raised by letter from

    25 Mr Jelanic, who is Head of the Office of Cooperation

  8. 1 with the International Tribunal, which I received

    2 yesterday, late evening. There are four matters

    3 I believe that are raised by that letter, which I asked

    4 to be filed with the Registry, since it is a direct

    5 communication with the Tribunal. Mr Jelanic is not

    6 here, I suppose, to speak to those matters. Mr Rivkin,

    7 would you speak to the fourth matter?

    8 MR RIVKIN: Your Honour, I will be happy to speak to that.

    9 JUDGE McDONALD: Would you speak to the fourth matter or at

    10 least according to my enumeration the fourth matter that

    11 is raised by that letter.

    12 MR RIVKIN: I presume you are speaking about your possible

    13 recuse, your Honour?

    14 JUDGE McDONALD: Well, I am speaking to the request of

    15 Croatia that I recuse myself.

    16 MR RIVKIN: Right. I believe our letter speaks for

    17 itself. We just wanted to clarify that we mean no

    18 disrespect to your Honour. We are aware of your

    19 excellent reputation and distinguished judicial record.

    20 We feel, however, in this matter, given the stakes

    21 involved not only for the Government of Croatia but for

    22 development of international law and the future of this

    23 Tribunal, it is important to avoid not only any

    24 substantive impropriety but appearance of impropriety.

    25 We believe this appearance of impropriety would not even

  9. 1 arise if a different jurist rather than the person who

    2 issued the subpoenas in the first place was presiding

    3 over this hearing.

    4 JUDGE McDONALD: In the letter that was submitted in the

    5 next to the last paragraph it stated that:

    6 "Finally, Croatia ask that you recuse yourself

    7 from participating in this hearing and rendering any

    8 decisions on it, since you are the judge who issued the

    9 order that is here in issue. Although we, of course, do

    10 not doubt your integrity, we believe that both the

    11 appearance and substance of fairness and due process

    12 require you not to take part in this hearing, or in

    13 determining the validity of the subpoena at issue".

    14 Mr Rivkin, when I received the letter, I first

    15 looked at Rule 15 of our rules of procedure and

    16 evidence. Rule 15(A) provides that:

    17 "A judge may not sit on a trial or appeal in any

    18 case in which he has a personal interest or concerning

    19 which he has or has had any association which might

    20 affect his impartiality. He shall in any circumstance

    21 withdraw and the President shall assign another judge to

    22 sit in his place."

    23 I first made a determination on my own as to

    24 whether or not that rule applied to me, and I do not

    25 consider that I have a personal interest in this

  10. 1 matter. My only involvement in this matter has been as

    2 a sitting judge.

    3 Regarding my association, as is referred to in

    4 Rule 15 (a), my association has been as follows. First,

    5 I signed the subpoena that was addressed to -- the

    6 subpoenas that were addressed to Croatia and a high

    7 governmental official and Bosnia-Herzegovina and a high

    8 governmental official. When Croatia appeared in the

    9 person of Ambassador Salaj and challenged the subpoena,

    10 I suspended the subpoena at that time and subsequently

    11 by an order I requested that the parties brief three

    12 issues. I also requested that amicus curiae appear on

    13 the issue or issues. I also convened the entire Trial

    14 Chamber, even though I felt that I was authorised under

    15 our rules to consider the issue.

    16 The Prosecutor subsequently filed a motion to lift

    17 that suspension of the subpoena. I denied that motion,

    18 indicating in the order that the issues would only be

    19 considered after the full Trial Chamber resolves the

    20 matter, so I do not consider that I have in any way

    21 acted improperly, nor do I consider that there is any

    22 appearance of impropriety, and therefore I made the

    23 decision on my own not to recuse myself. However, Rule

    24 15(b) says a party may apply to the providing judge for

    25 a Chamber for the disqualification and withdrawal of the

  11. 1 judge of that Chamber upon the above grounds.

    2 Since I am the Presiding Judge of this Chamber,

    3 I considered it appropriate, and the rule does say or

    4 suggest that, if necessary, the Bureau may handle such a

    5 request -- I therefore considered it appropriate out of

    6 an abundance of caution to refer this matter to the

    7 Bureau. I am a member of the Bureau, but I did not

    8 participate in its consideration of this issue. The

    9 Bureau has considered your request that I recuse myself,

    10 and it has issued a Decision which I have been provided,

    11 which I would like to read into the record. You have

    12 may have a seat, Mr Rivkin. It is as follows:

    13 "At the request of Judge McDonald, the Bureau of

    14 the Tribunal, consisting of President Antonio Cassese,

    15 Judge Adolphus G Karibi Whyte, Judge Gabrielle Kirk

    16 McDonald and Judge Claude Jorda, met this morning at 9am

    17 to consider the request of the Republic of Croatia for

    18 Judge McDonald to recuse herself from participating in

    19 today's hearing before Trial Chamber II relating to the

    20 power of the Tribunal to issue subpoena duces tecum to a

    21 sovereign state and from rendering any decision on the

    22 matter.

    23 The Bureau asked Judge McDonald to state her

    24 position, following which she retired and the Bureau

    25 deliberated in her absence.

  12. 1 After duly considering the issue of recusation,

    2 and pursuant to Article 15 of the Rules of Procedure and

    3 Evidence, the Bureau has unanimously decided to reject

    4 the Croatian request for recusation on the following

    5 grounds:

    6 1. When the subpoena issued to the Republic of

    7 Croatia by Judge McDonald on 15th January 1997 was

    8 challenged by the Republic of Croatia in the hearing of

    9 19th February 1997, Judge McDonald, sitting as a sole

    10 judge, decided to suspend the subpoena and subsequently

    11 invited the parties to address her on matters relating

    12 to the power of the Tribunal to issue such a subpoena.

    13 2. On 14th March 1997 Judge McDonald decided to

    14 refer the matter to the full Chamber. By deciding not

    15 to pronounce on the issue by herself, but in the full

    16 Chamber she clearly showed her intention to elicit a

    17 full deliberation by the three judges of the Chamber.

    18 Consequently, even if one were to argue that her

    19 decision to issue the original subpoena might influence

    20 her views -- which the Bureau does not believe -- the

    21 fact that the matter is now pending before the full

    22 Chamber must dispel any doubt in the matter. The

    23 question at issue will be deliberated in full by three

    24 judges, and any one of them is entitled to append a

    25 separate or a dissenting opinion.

  13. 1 3. Subsequently, when the Prosecutor filed a

    2 motion for the re I be statement of the subpoena, Judge

    3 McDonald, as Presiding Judge of the Chamber, decided to

    4 defer ruling on that motion, pending determination of

    5 the issues by the full Chamber of the question of the

    6 Tribunal's authority to issue such subpoenas. By so

    7 acting, Judge McDonald clearly proved herself to be

    8 unbiased and to act with full judicial propriety.

    9 4. The Bureau would also like to stress that the

    10 decision by Judge McDonald to invite amici curiae to

    11 file briefs on this matter clearly shows that she is

    12 willing to have the Chamber hear as many legal views as

    13 possible, so as to enable the Chamber to reach a proper

    14 determination of the matter. This, the Bureau believes,

    15 bears testimony to the absolute impartiality and

    16 integrity of Judge McDonald.

    17 In light of the above, the Bureau, in the absence

    18 of Judge McDonald, unanimously decides that Judge

    19 McDonald is not precluded by Rule 15(a) of the Rules of

    20 Procedure and Evidence from participating in the

    21 hearing, for she has no personal interest in the case,

    22 nor any association with the case which might affect her

    23 impartiality."

    24 That is signed by Antonio Cassese, President of

    25 the Tribunal. I think that disposes of the matter.

  14. 1 I apologise for the late beginning of these

    2 proceedings and apologise for the time that has been

    3 spent in my stating my views regarding the request that

    4 I recuse myself as well as reading the decision of the

    5 Bureau, but I think that it is important again there is

    6 no appearance even of impropriety and we need to proceed

    7 with the hearing.

    8 Mr Jelanic is not here today, but may I remind

    9 Croatia, as well as all of the parties, that

    10 communications with this Tribunal, when there is an

    11 on-going case, are to be made with the Registry.

    12 Letters should not be sent to individual judges, because

    13 that, in my judgment at least, would constitute ex parte

    14 contact. Such ex parte contact would not only be

    15 improper; it would definitely be an appearance of

    16 impropriety, and so may I suggest in the future you

    17 communicate with the Registry with respect to matters

    18 that are pending before this Trial Chamber.

    19 Now, you had three other matters, or Mr Jelanic

    20 did, that were raised in this letter to me, which

    21 I filed with the Registry. Excuse me just one minute.

    22 (Pause).

    23 I have received word that General Blaskic with be

    24 brought to the Tribunal at 2 o'clock, some time between

    25 2 o'clock and 2.30. Judge Jan has reiterated to me the

  15. 1 proposition that this is not a trial. As a matter of

    2 fact, the issue that we are -- the issues that we are

    3 seized with do not directly relate to the request for

    4 the issuance of a subpoena by counsel for Blaskic. What

    5 is presently before this Chamber is the subpoena that

    6 was issued to Croatia and to Bosnia-Herzegovina and the

    7 two other -- and the two high officials mentioned in

    8 that subpoena. There has been no subpoena signed by

    9 this Trial Chamber, nor any judge.

    10 Mr Hayman, General Blaskic will be here at

    11 2 o'clock.

    12 We will now proceed with the hearing.

    13 First, we still have three other issues that we

    14 need to resolve. Sorry. The first issue, if you want

    15 to go back to the letter, and perhaps at this rate,

    16 Mr Hayman, we may not begin the hearing until 2 o'clock.

    17 MR RIVKIN: I promise to be very brief, your Honour.

    18 JUDGE McDONALD: Very good. The first issue in your letter

    19 says -- I will read it:

    20 "Croatia strongly objects to the timing of this

    21 hearing and to the fact that it was accorded only 11

    22 days to make written response to the very lengthy and

    23 detailed brief filed by the Prosecutor. The Prosecutor

    24 has had literally months to prepare and refine its

    25 position in this matter. Croatia should have had a

  16. 1 reasonable period of at least 30 days to prepare its

    2 response. Accordingly Croatia will participate in the

    3 hearing on 16th only under protest."

    4 Would you like to explain that?

    5 MR RIVKIN: Yes, your Honour. We are obviously

    6 participating in the hearing. We think it is a very

    7 important hearing. We are trying to state for the

    8 record that we would have liked to have more time to

    9 prepare. We know that the matter of a subpoena being

    10 issued has been with us for a long time, but speaking as

    11 a lawyer, it would have been enormously useful to have a

    12 longer time to prepare detailed responses to the legal

    13 arguments raised by the Prosecutor. I believe that 11

    14 days is most unusual in matters of that nature. 30 days

    15 or 60 days certainly would have been appropriate.

    16 JUDGE McDONALD: I may ask the Prosecutor to respond to

    17 this, but on March 7th, 1997 I entered an order asking

    18 the parties to brief the issues by April 1st. I looked

    19 at the calendar yesterday. I believe I counted 24

    20 days. In any case I entered the matter on March 7th.

    21 Briefs were to be entered by April 1st, with reply

    22 briefs, if any, by any party, to be filed by April 11th,

    23 which is clearly within 30 days.

    24 I also requested the submission of amicus briefs

    25 by April 7th. I cannot speak to how long the Prosecutor

  17. 1 has been preparing its brief or how long it has had. I

    2 can tell you, however, that I requested the submission

    3 of briefs on March 7th, and asked that the briefs by all

    4 parties be filed by April 1st, with reply briefs to be

    5 filed by April 11th.

    6 MR RIVKIN: Your Honour, if I may just be permitted to make

    7 one point, it is our view, and I do not mean to get into

    8 substance at this time, that there is no sufficient

    9 authority in international law for issuance of such a

    10 subpoena against a sovereign state. Therefore it would

    11 have been enormously useful for us to see precisely the

    12 legal case made by the prosecution prior to responding.

    13 This is a little different than the regular brief and

    14 reply brief situation that we have had. As far as the

    15 amici briefs are concerned, we got some of those just

    16 last night. It is a very compressed timetable on a very

    17 important matter of international law.

    18 JUDGE McDONALD: Did you file the reply brief by April

    19 11th?

    20 MR RIVKIN: We have, your Honour, a very short reply

    21 brief.

    22 JUDGE McDONALD: As Mr Hayman has very forcefully pointed

    23 out, although the issues that we are now concerned with

    24 relate to the propriety of the issuance of a subpoena,

    25 there is pending before the other Trial Chamber a matter

  18. 1 which involves General Blaskic. General Blaskic has

    2 been in custody in excess of 16 months I do believe.

    3 Mr Hayman, can you --

    4 MR HAYMAN: It has been a full year, your Honour. It has

    5 been 12 months.

    6 JUDGE McDONALD: 12 months. Even though that is not a

    7 matter that this Chamber is concerned with, that is a

    8 matter that is being handled by the other Trial Chamber,

    9 that was a consideration in my mind when I suspended the

    10 subpoena and requested briefing, because I am concerned

    11 about the passage of time, even though it does not

    12 relate -- even though it is not a matter that is pending

    13 before this Trial Chamber, but I hear what you say.

    14 MR RIVKIN: If I may, your Honour, just to help expedite

    15 matters, we would be content with an opportunity to file

    16 a substantive reply brief as specified further on in

    17 this letter to help cure some of the difficulty. Again

    18 it seems to us, given the importance of this issue

    19 certainly not in this case but to future international

    20 law, that would be entirely appropriate. If you could

    21 see your way to rule favourably on that, I would be

    22 quite content.

    23 JUDGE McDONALD: I like the way you put that, because in

    24 the third point, I suppose, in Mr Jelanic's letter, he

    25 does not exactly put it that way. He does not say "if

  19. 1 the Trial Chamber can see fit to allow for the filing of

    2 additional briefs. " What he says is:

    3 "Croatia reserves to itself the right to submit

    4 additional written materials".

    5 I think that you put it very well and that is a

    6 matter that we will consider after we hear the

    7 submissions of all the parties. If the Trial Chamber

    8 determines that it is either required or it will benefit

    9 the Trial Chamber in resolving this issue, we, of

    10 course, will allow for additional briefs or submissions

    11 to be made, but that is a matter that is left to the

    12 decision of the Trial Chamber and not the parties.

    13 MR RIVKIN: I want to thank your Honour.

    14 JUDGE McDONALD: Then the second point that was raised in

    15 the letter relates to the format of the proceedings. In

    16 the letter Mr Jelanic states:

    17 "In addition, Croatia objects to the fact that it

    18 has not been informed well enough in advance of the

    19 hearing of the format the proceeding will take. As a

    20 matter of basic fairness and due process, it is

    21 incumbent on any court to establish the order of

    22 speaking, the time allotted to each side, whether the

    23 parties will be expected to respond to questions from

    24 the bench, and what form rebuttal argument will take.

    25 Croatia has not been informed of these matters with

  20. 1 sufficient specificity and amount of detail in a timely

    2 manner."

    3 Do you wish to elaborate on that, Mr Rivkin?

    4 MR RIVKIN: Yes, your Honour, very briefly. It would have

    5 been useful for us to know indeed how the rebuttals

    6 would take -- in what form they will take place. For

    7 example, we were informed last night that we would not

    8 be allowed directly to question the amici. That is

    9 indeed a reasonable proposition, but it would have been

    10 useful to know that a little bit in advance. For

    11 example, we still do not know, when the Prosecutor in

    12 the second round is going to make some additional

    13 points, whether we would be able to talk directly to the

    14 Prosecutor or we have to address ourselves to the

    15 court. We are not questioning your ability to set your

    16 procedures for the court room. It is pretty plenary.

    17 Again it would be useful in our preparation to know what

    18 they are.

    19 JUDGE McDONALD: This is a judicial proceeding. I have

    20 presided over a trial that lasted, what, seven months,

    21 I guess, and also we at this Trial Chamber considered

    22 many motions that were filed in another matter that is

    23 pending. Those matters were heard in open court. We

    24 have received motions and arguments by counsel dozens of

    25 times. If counsel were familiar, either by observing

  21. 1 the proceedings or by enquiring, they would know how

    2 this Presiding Judge conducts hearings on motions.

    3 However, Ambassador Salaj requested by a telephone call

    4 to my secretary -- which I referred to our legal officer

    5 once again, to avoid any ex parte contact -- he

    6 requested a meeting with the Chamber, and we met on

    7 April 7th with Ambassador Salaj and another

    8 representative from the Embassy, and the Prosecution was

    9 present, and we then discussed basically what is the

    10 obvious, and that is the moving party goes first. We

    11 then hear from the responding party. Now, we will hear,

    12 however, from amici.

    13 We also discussed how much time would be

    14 allotted. Ambassador Salaj said a decision had not been

    15 made as to who would appear for Croatia. I have asked

    16 him to please advise me at his convenience but please no

    17 later than Monday. I asked the parties how much time

    18 they thought they would need for the presentation of

    19 their arguments. I suggested 45 minutes for each party,

    20 but, as I indicated, we are very flexible and willing to

    21 hear from the parties as long as they are providing us

    22 with something new and not repeating their arguments.

    23 I do not understand, Mr Rivkin. This is a

    24 judicial proceeding. This is not anything else other

    25 than a judicial proceeding and we have had many judicial

  22. 1 proceedings. We have considered motions and heard

    2 arguments from counsel. We are proceeding in the same

    3 basis, but I did meet with Croatia at their request but

    4 in the presence of the prosecution and we discussed

    5 these matters. I do not think you will have a problem.

    6 You are a lawyer. You have appeared in court before.

    7 We will proceed very carefully, cautiously and give you

    8 enough time. I am satisfied at the end of day and

    9 tomorrow you will be satisfied at least you will have

    10 had an opportunity to fully state your position.

    11 MR RIVKIN: Thank you, your Honour.

    12 JUDGE McDONALD: I think that covers the four matters that

    13 you raised in your letter; is that so?

    14 MR RIVKIN: That is correct.

    15 JUDGE McDONALD: Okay. Very good.

    16 Prosecutor, I have not asked you if you wish to

    17 respond to any of these discussions with Mr Rivkin.

    18 I have not asked Mme Vidovic, nor have I asked Miss

    19 Glumac. If any of you at this point wish to respond to

    20 those matters that have been raised, you may. I am not

    21 encouraging you, and I am not even suggesting that you

    22 need to, but if you wish to, you may. Having heard

    23 nothing, we will then proceed.

    24 We will proceed now today by hearing first from

    25 the Prosecutor. We will then hear the submission from

  23. 1 the Defence, and I believe a representative from the

    2 Registry, or perhaps the legal officer, Miss

    3 Featherstone, has spoken with Mr Hayman regarding time

    4 that he night need. We will then hear from the Republic

    5 of Croatia. We will then hear from Bosnia-Herzegovina

    6 and we will then here from Miss Glumac. We will then

    7 hear from the amici and then, of course, there will be

    8 time for rebuttal on the part of the prosecution, as

    9 well as any replies from Croatia, Bosnia-Herzegovina or

    10 Miss Glumac as well as Mr Hayman, if he still wishes to

    11 be present.

    12 With respect to the amici, I understand from the

    13 Registry that there is a question regarding their

    14 availability for tomorrow. May I ask the amici whether

    15 there are any who are unable to appear tomorrow, should

    16 this hearing last that long?

    17 PROFESSOR DONOVAN: I am unlikely to be able to be here

    18 tomorrow, your Honour.

    19 JUDGE McDONALD: Okay. Mr Donovan.

    20 MR MALANCZUK: Your Honour, I have lectures tomorrow. I am

    21 sorry.

    22 JUDGE McDONALD: What do you think your students would say

    23 about your absence. We will let you go. I have taught

    24 as well. I think you need to be there. Who else?

    25 MR ZIMMERMANN: I have to fly out tonight because I have to

  24. 1 take a lecture tomorrow at a conference.

    2 JUDGE McDONALD: You are Mr Zimmermann.

    3 MR ZIMMERMANN: Right.

    4 PROFESSOR CONDORELLI: I am obliged to leave today because

    5 I have to go back to Geneva, because I teach tomorrow.

    6 JUDGE McDONALD: That is Mr Condorelli.

    7 MR PELLET: Your Honour, I think that this morning I was

    8 talking with you about this and I could stay until the

    9 middle of the afternoon but not any later than that.

    10 Thank you.

    11 JUDGE McDONALD: Well, this is a matter that has the

    12 primary interest, I suppose, of the parties, and that is

    13 the Prosecution, Croatia, Bosnia-Herzegovina and Miss

    14 Glumac as well as the interests of Mr Hayman. We will

    15 do what we can to accommodate amici. We have advised

    16 you that we would allot fifteen minutes with some

    17 flexibility to respond to questions from the Trial

    18 Chamber, but I think that we will be able to hear the

    19 direct presentations of the prosecution as well as the

    20 direct presentations from Croatia before it is time for

    21 the five of you to leave. So we will do our best to

    22 accommodate you, but please keep in mind that we have

    23 invited you as friends of the court and our first

    24 obligation is to the parties. We appreciate your being

    25 here and have read your briefs. We will do what we

  25. 1 can.

    2 Now, having, said all of that, Madam Prosecutor,

    3 would you like to begin with your presentation? .

    4 Presentation by JUSTICE ARBOUR.

    5 JUSTICE ARBOUR: Thank you, your Honour. If I may, on the

    6 last issue that was raised with respect to the order of

    7 presentation in the spirit of flexibility that you have

    8 demonstrated this morning, I wish to state that the

    9 prosecution would have no objection to disruption of the

    10 order of presentation to give any of the amici an

    11 opportunity to be heard, particularly if their

    12 presentation was to be restricted to approximately

    13 fifteen minutes. We would be happy to either interrupt

    14 our own presentation or defer to your calling on them at

    15 any particular point rather than to lose the benefit of

    16 their presence. We would be happy to do that.

    17 JUDGE McDONALD: Thank you.

    18 JUSTICE ARBOUR: If I may just briefly outline the order of

    19 presentation, I will be making opening submissions

    20 dealing essentially with the proper framework within

    21 which the analysis of these proceedings ought to be

    22 conducted, and then Mr Crawford will make submissions

    23 dealing with the particular issues dealing with matters

    24 of international law. Then I will resume my submissions

    25 dealing specifically on interests of states and their

  26. 1 national security and on the issue of remedies and

    2 proper enforcement procedures for the order that we have

    3 sought.

    4 So if I may just begin by raising a preliminary

    5 matter that I believe has been somewhat touched upon in

    6 the issues that were raised in the letter that was sent

    7 to you, Judge McDonald, I understand yesterday by

    8 Mr Jelanic, I do not want to revisit these issues, but

    9 there is a related matter that I would like to raise as

    10 a preliminary issue, and that relates to the briefs that

    11 have been filed with the court by the Republic of

    12 Croatia.

    13 As I understand it, there were two briefs that

    14 were filed, and I will be referring not to the brief

    15 that was filed on April 11th in answer to the

    16 Prosecutor's brief, but to the original one which is

    17 under cover of April 1st, but, in fact, contains a

    18 letter, so the brief is really -- the presentation of it

    19 is really in the form of a letter that was addressed to

    20 your Honour, Judge McDonald, on, I believe, March 28th,

    21 and if I may, I would simply like to read the last two

    22 paragraphs of that submission. It reads as follows:

    23 "Unless the agenda of the hearing set for April

    24 16, 1997 is taken to apply to all states, i.e. the issue

    25 is that of universal applicability of the subpoenas, the

  27. 1 Republic of Croatia will not take part in the

    2 forthcoming proceedings, nor will it consider itself

    3 bound by the decisions reached thereafter."

    4 The brief continues as follows:

    5 "Let us once again remind you", and this is in a

    6 letter addressed to you, Judge McDonald, "of the

    7 position of the Republic of Croatia as expressed in the

    8 above-mentioned letter of March 26 1997 regarding the

    9 participation of the Republic of Croatia at the hearing

    10 on April 16 1997, and of the significance of the

    11 Tribunal's decision for the future cooperation between

    12 Croatia and the International Tribunal."

    13 Now, with respect to the first paragraph, the one

    14 that refers to the Republic of Croatia reserving the

    15 right not to consider itself bound by the decision,

    16 I simply wish to submit that whichever way the issues

    17 are framed, whichever way the issues are argued, and

    18 whichever way the issues are decided, in my submission

    19 there can be no question that the Republic of Croatia

    20 will be bound by the decision of this Tribunal.

    21 As for the second paragraph that I have referred

    22 to, I wish to submit that the threat of an unfavourable

    23 decision would jeopardise the future cooperation between

    24 the Republic of Croatia and the Tribunal is not an

    25 appropriate form of argument before this Tribunal and

  28. 1 that it should be withdrawn.

    2 So this is essentially the preliminary point that

    3 I wish to address. In light of what has been covered

    4 already this morning, I think there is little need to

    5 review the judicial history of these proceedings. They

    6 are essentially summarised in the Prosecutor's brief at

    7 pages 1-4, and I will simply outline the fact that the

    8 Prosecutor obtained the subpoenas duces tecum that are

    9 at issue in this matter on January 15th 1997, and that

    10 on February 10th, so that is a little over two months

    11 ago, the Republic of Croatia challenged the legal

    12 authority of the Tribunal to issue these subpoenas.

    13 So even though I am certainly not raising any

    14 objection to the Prosecution going first on this matter,

    15 we are essentially here in a proceedings which is akin

    16 to a motion to quash an order that was issued, and the

    17 question of the legality of the subpoena was squarely

    18 put on the table by the Republic of Croatia on February

    19 10th, and I would have thought by the time they alerted

    20 the Tribunal to this issue, they would have had the

    21 legal foundation for this position certainly thought

    22 through, if not fully articulate in writing. So this,

    23 I think, sets the context in which these proceedings

    24 arose.

    25 JUDGE McDONALD: Actually when an objection was lodged

  29. 1 there was perhaps a four-page letter that was submitted

    2 and filed stating its legal position. So that I did

    3 have.

    4 JUSTICE ARBOUR: Yes. Thank you, your Honour.

    5 JUDGE McDONALD: I then suspended, as I have indicated

    6 already, the subpoena and we then went forward with

    7 respect to Bosnia-Herzegovina.

    8 JUSTICE ARBOUR: Thank you, your Honour. I do not believe

    9 that there is any usefulness in reviewing the judicial

    10 history of these proceedings beyond having mentioned the

    11 salient point.

    12 Essentially the central issue that is before the

    13 court today is the question of the legality of an order

    14 compelling the production of documents and the

    15 attendance of witnesses. In my submission, what is not

    16 before the court today is the particular form that that

    17 order has been issued under. It has been issued under a

    18 form that in my submission is provided for by the rules,

    19 but this is not essentially, as I understand the

    20 position, attacking the legality of the subpoena duces

    21 tecum. It is not an attack on its form but it is an

    22 impeachment of the very concept of the capacity of the

    23 Tribunal to compel the production of evidence, and

    24 I think it is useful to approach the issue in these

    25 broad terms.

  30. 1 MR RIVKIN: Your Honour, if I may be permitted for just one

    2 second to state what our position is so that the Chamber

    3 is not under any misapprehension.

    4 JUDGE McDONALD: I do not think that it is appropriate at

    5 this time for you to interrupt the argument. You will

    6 have an opportunity when you respond to correct any

    7 assertions that may be said. This is not a trial where

    8 we are receiving evidence. What we are doing is hearing

    9 argument. So when we hear from the Prosecutor regarding

    10 its framing of your position, you then may respond and

    11 state that that truly is not your position. The same

    12 when you state your position; it may be that the

    13 prosecution wishes to respond, and you will have an

    14 opportunity but without interrupting counsel. You may

    15 proceed.

    16 JUSTICE ARBOUR: Thank you, your Honour.

    17 Therefore, in my submission, the critical issue,

    18 the central issue, that is before the Tribunal today is

    19 the question of the power of the Tribunal to compel the

    20 production of evidence and to require the attendance of

    21 witnesses in its effort to allow the parties to get

    22 access to evidence that they say is necessary for the

    23 factual demonstration of their case at trial. In my

    24 submission, therefore, the question is not one of the

    25 form that this order could take, although it has been

  31. 1 raised certainly by many of the amicus briefs, that the

    2 particular form that this order has taken has raised

    3 some questions as to whether it is an appropriate type

    4 of procedure.

    5 Our submissions will be that it is an order that

    6 is fully contemplated by the rules, but the essence of

    7 the issue is not so much whether this vehicle is the

    8 appropriate one, but very much whether the Tribunal has

    9 the capacity to compel the production of evidence,

    10 including of documentary evidence.

    11 I will be developing this argument as to what the

    12 true nature of a subpoena is. A subpoena duces tecum is

    13 essentially an order to appear. That is the "subpoena"

    14 part. It is an order to appear that conveys the sense

    15 that the order is compulsory. The addition of the

    16 expression "duces tecum" essentially requires the

    17 witness not only to attend but to bring forward to the

    18 court documents that may then have to be addressed by

    19 the witness in giving evidence.

    20 If the documents are put forward in their

    21 entirety, there is very often no need for the witness

    22 actually to attend. If the production of the document

    23 is somewhat deficient, insufficient, not complete, the

    24 witness may then be called to explain the deficient

    25 production or in another way to speak to the question of

  32. 1 documentary production.

    2 What is also critical, in my submission, to

    3 understand and to cast the debate squarely within these

    4 parameters is that this is an order for the production

    5 of documents that has been sought by the Prosecutor, and

    6 a similar order has been sought by the Defence, in the

    7 post-indictment phase of the proceedings of the

    8 Tribunal. In my submission, this is a critical

    9 distinction that I would like to take the court through

    10 by pointing to the two different schemes that in my

    11 submission govern access by the prosecution to

    12 documentary and testimonial evidence.

    13 Pre-indictment, that is in the course of the

    14 Prosecutor investigating the crimes that are within the

    15 jurisdiction of the Tribunal, therefore, the statutes

    16 contemplated in Article 16 that the Prosecutor is

    17 responsible essentially for investigations. Under

    18 Article 18, paragraph 2 of the Statute, the Prosecutor

    19 is given powers:

    20 "The Prosecutor shall have the power to question

    21 suspects, victims, witnesses, to collect evidence and to

    22 conduct on-site investigations. In carrying out these

    23 tasks, the Prosecutor may, as appropriate, seek the

    24 assistance of states' authorities concerned."

    25 Under Article 29 of the Statute the Prosecutor, in

  33. 1 my submission, is then entitled to call upon the states

    2 for their -- to call them upon their obligation to

    3 cooperate. Article 29 contemplates that:

    4 "States shall comply without undue delay with any

    5 request for assistance or an order issued by a Trial

    6 Chamber."

    7 That includes cooperation with respect to

    8 identification, taking of testimony, production of

    9 evidence and so on. So in the investigative phase of

    10 the proceedings, the Prosecutor is entitled to make

    11 requests for assistance to states and is entitled to

    12 rely on the duty to cooperate which is expressed in

    13 Article 29 of the Statute. This is all pre-indictment,

    14 and this entitlement of the Prosecutor is then repeated

    15 and reflected and fleshed out, if I may put it this way,

    16 in rule 39 of the Rules of Procedure and Evidence, which

    17 essentially track the language that I have referred to

    18 in the Statute.

    19 Under the current practice of the Prosecutor's

    20 office, there are literally hundreds of such requests

    21 for assistance addressed to various states that are at

    22 various stages of compliance. Many are outstanding;

    23 many are the subject of protracted discussions with the

    24 states concerned, including, in many cases, a request by

    25 the state for more specificity and so on.

  34. 1 In my submission, none of this is before the court

    2 today. We are now in another set of statutory

    3 provisions that govern the production of evidence at

    4 trial. In my submission, it is critical to properly

    5 situate this order that is sought by the Prosecutor and

    6 a similar order that is sought by the defence in this

    7 post-indictment phase of the Tribunal's proceedings.

    8 After an indictment has been confirmed, and this

    9 is the case in this particular case that is before the

    10 Tribunal, Article 19 of the Statute, Article 19,

    11 paragraph 2, provides that:

    12 "Upon confirmation of an indictment the judge may,

    13 at the request of the Prosecutor, issue such orders and

    14 warrants for the arrest, detention, surrender or

    15 transfer of persons and any other order as may be

    16 required" -- that is a critical point -- "for the

    17 conduct of the trial."

    18 Post-indictment, both in the pre-trial and the

    19 trial phases of the post-indictment process, the orders

    20 that are available to the parties, not solely at that

    21 point to the Prosecutor, but to the parties are orders

    22 that will assist the parties in a thorough presentation

    23 of their case to the trial court.

    24 Article 20 then continues in this post-indictment

    25 phase by providing that:

  35. 1 "The Trial Chambers must ensure that the trial is

    2 fair and expeditious and that proceedings are conducted

    3 in accordance with the Rules of Procedure and Evidence."

    4 Article 15 delegates essentially the rule-making

    5 power to the judges in plenary, and we have

    6 supplementing the Statute, therefore, under that

    7 authority a body of Rules of Procedure and Evidence.

    8 Article 29 again calls upon state cooperation and

    9 makes specific reference to the obligation of states not

    10 only to comply with requests for assistance, but

    11 specifically to orders issued by a Trial Chamber.

    12 JUDGE McDONALD: Article 29 then is not limited to

    13 pre-indictment or post-indictment. That is the general

    14 Article on cooperation, because included in Article 29

    15 is the duty to execute arrest warrants.

    16 JUSTICE ARBOUR: Yes, I agree with that.

    17 JUDGE McDONALD: Now we are moving into a hybrid or perhaps

    18 even over-arching requirement.

    19 JUSTICE ARBOUR: The distinction I wish to draw, your

    20 Honour, between the pre-indictment and post-indictment

    21 proceedings are a way of distinguishing between requests

    22 for assistance that are supportive of investigations and

    23 in which states have been given by the security counsel

    24 the obligation to be cooperative in the Prosecutor's

    25 effort to investigate, which is one part, and the

  36. 1 obligations of the state that are commensurate to the

    2 powers of the court as a criminal court when its trial

    3 jurisdiction is engaged after an indictment has been

    4 issued, to be given the appropriate means, no longer

    5 merely to investigate the possible commission of an

    6 offence, but to come to a just, fair and reliable

    7 disposition of the allegations, and these powers, in my

    8 submission, are powers that are universal in all

    9 criminal courts, and I want to wait this order that was

    10 sought by the Prosecutor, as a similar order was sought

    11 by the defence, to properly wait that order in its

    12 post-indictment context, to make it clear that what we

    13 are talking about here is not a kind of fishing

    14 expedition in the broad base investigations that could

    15 be conducted in the pre-indictment phase. When the

    16 Prosecutor is given powers to ascertain whether crimes

    17 were committed that are within the ambit of the Statute,

    18 and by whom -- this is not what is at issue in this

    19 case.

    20 We are now in the phase in which the parties are

    21 given entitlements that will assist them in providing

    22 the court with reliable facts upon which to make the

    23 determination that it must make, which has, of course,

    24 the consequences that we know that could include

    25 sentencing a person for life imprisonment, and in my

  37. 1 submission this is the proper context in which we have

    2 to examine these provisions. Therefore, in my

    3 submission the order that was sought by the Prosecutor

    4 here is very squarely rooted in Rule 54 of the Rules of

    5 Procedure and Evidence. This will explain the

    6 particular form that this order took, although, as

    7 I submitted earlier, nothing turns, in my submission, on

    8 the fact that it is a subpoena that was sought rather

    9 than an order that could have been cast using a

    10 different terminology. Rule 54 provides that:

    11 "At the request of either party or proprio motu a

    12 judge or Trial Chamber may issue such orders, summonses

    13 or subpoenas, warrants or transfer orders as may be

    14 necessary for the purposes of: (i) an investigation".

    15 In my submission that would clearly contemplate a

    16 continuing post-indictment investigation, which is

    17 entirely appropriate. Considering the indictment

    18 standard that is provided for in Rule 47, there is

    19 certainly no suggestion there is anything inappropriate

    20 in the investigation continuing post-indictment, but in

    21 my submission in the investigation that is being

    22 contemplated here, the post-indictment one.

    23 "Orders that are necessary for the purposes of an

    24 investigation, or for the preparation or conduct of the

    25 trial."

  38. 1 Rule 54 is included in part 5 of the rules, which

    2 is entitled "Pre-trial Proceedings", and then follows

    3 into the proceedings at trials. Rule 54, therefore, is

    4 squarely situated in what in my submission is the power

    5 that is not only expressly provided for in the Statute

    6 but that is an implied and inherent power universally

    7 enjoyed by all criminal courts to compel the production

    8 of evidence, to compel testimony and to compel the

    9 production of evidence, assuming, of course, and

    10 dependent on a determination by the court that the

    11 evidence sought is sufficiently relevant, material,

    12 probative to be admitted, and is not otherwise caught by

    13 some exclusionary rule. That power, in my submission,

    14 is universally enjoyed by criminal courts, and the order

    15 sought in these proceedings is in substance, and I will

    16 address the form later, in substance is an order that

    17 belongs to that range of instruments that are at the

    18 disposal of the court.

    19 Following Rule 64 there are many other provisions

    20 of the rule that speak --

    21 JUDGE McDONALD: Following Rule 54, you mean, but before

    22 you go on to that, of course the provision is provided

    23 for in Rule 54, but where is there a foundation in the

    24 Statute? Would you say Article 29 is that foundation?

    25 Article 29 seems to be a hybrid in that it provides for

  39. 1 cooperation and then what it provides for in terms of

    2 the type of cooperation, it includes the production of

    3 evidence, which, of course, could be post-trial --

    4 post-indictment, but also the identification and

    5 location of persons, which may be pre-indictment, but in

    6 any case what I want you to do is to anchor rule 52 to

    7 an article in the Statute.

    8 Mr Pellet has said in his brief that I found that

    9 I had power only in Rule 54. I think it became clear,

    10 if the full transcript was read, that there was always a

    11 reference to an article in the Statute. So, you tell

    12 me, where does Rule 54 have its anchor in the Statute,

    13 because obviously when bodies enact rules, even in my

    14 system, they cannot legislate. They cannot go beyond

    15 the constituent documents. So where in the Statute?

    16 JUSTICE ARBOUR: Well, in my submission, certainly Article

    17 29 in itself could be seen as sufficient anchor for that

    18 power, but I would certainly like to rely as well on

    19 Articles 19 and 20, then go to Article 15, providing for

    20 the legality of Rule 54. I say Article 19, because this

    21 is the Article -- this is the first Article in the

    22 Statute that specifically contemplates that: after an

    23 indictment has been confirmed, the Prosecutor now and

    24 the accused, in my submission, have access to the court

    25 for any order as may be required for the conduct of the

  40. 1 trial. It will be my submission that it could not have

    2 not been within the contemplation of the Security

    3 Council to realise that the conduct of a criminal trial

    4 requires the court to equip itself, which it has done

    5 by, in part Rule 54 and other rules -- to equip itself

    6 with the ability to compel from potentially reluctant

    7 third parties the access to testimony or documents that

    8 will be necessary for a just, fair and reliable

    9 determination of the issues that are put before the

    10 Tribunal.

    11 So I say, and these are my submissions, that the

    12 statutory anchor starts in Article 19 that provides for

    13 the post-indictment capacity of the court to make orders

    14 for the conduct of the trial, and in my submission this

    15 is then followed by Article 20, which again imposes a

    16 statutory duty on the court to ensure a fair and

    17 expeditious trial. My submission is there cannot be a

    18 trial that is fair to either party if the party cannot

    19 turn to the court for its assistance in compelling

    20 reluctant or potentially reluctant witnesses -- and by

    21 witnesses I include witnesses who have access to

    22 documents -- if the court could not compel reluctant

    23 third parties to produce this evidence for the

    24 assistance of the court in coming to a fair, expeditious

    25 and reliable determination of the issues. So in my

  41. 1 submission Rule 54 is very solidly anchored in Article

    2 19, Article 20 and clearly in the obligation imposed on

    3 states in Article 29 to comply in absolutely mandatory

    4 language:

    5 "States shall comply with orders issued by Trial

    6 Chambers".

    7 Turning back to Article 19, that includes any

    8 order that is required for the conduct of the trial, and

    9 in my submission, orders such as this one compelling the

    10 production of evidence, be it testimonial evidence or

    11 documentary evidence, fall squarely within the powers

    12 that a criminal court must enjoy if it will be given the

    13 power to preserve the integrity of its final factual

    14 conclusions.

    15 I would add to that Article 21, which I think is

    16 not insignificant in the present context, particularly

    17 Article 21, paragraph 4(e), which grants the accused the

    18 right:

    19 "In determination of any charge against the

    20 accused pursuant to the present Statute, the accused

    21 shall be entitled to the following minimum guarantees."

    22 I read (e):

    23 "To examine or have examined the witnesses against

    24 him and to obtain the attendance and examination of

    25 witnesses on his behalf under the same conditions as

  42. 1 witnesses against him."

    2 In my submission the subpoena, as I stated

    3 earlier, is an order for a person to appear as a witness

    4 and produce documents to the court. Whichever

    5 characterisation one may want to give to that document,

    6 if issued in the course of a trial, that is what it is.

    7 Documents do not walk into the court room. They

    8 can only be presented to the court either pursuant to a

    9 seizure following a search warrant, in which case the

    10 search officer will testify, present the document and

    11 testify to the location where the documents were found,

    12 the conditions under which they were found, and will

    13 provide the court with information about their

    14 circumstances, if I can put it this way. Obviously a

    15 search warrant is the most intrusive method of

    16 compelling evidence, documentary evidence, to be brought

    17 before the court. A somewhat less intrusive --

    18 JUDGE McDONALD: Let us not get that far in this hearing,

    19 please.

    20 JUSTICE ARBOUR: In my submission the other method --

    21 JUDGE McDONALD: That is for a later date.

    22 JUSTICE ARBOUR: The other method for introducing

    23 documentary evidence before the court is the method

    24 pursued here, which is issuing an order for a witness to

    25 bring the documents before the court and if necessary,

  43. 1 to testify as to their authenticity, the locations in

    2 which they were found and so on. In this particular

    3 case the subpoena was sought pre-trial, but in my

    4 submission absolutely nothing turns on that

    5 distinction.

    6 The critical distinction is that it is

    7 post-indictment. Therefore it calls into play Article

    8 29, Article 20, Article 29 and Rule 54. The fact that

    9 it was issued pre-trial is merely a matter of

    10 convenience. This order was sought by the Prosecutor on

    11 January 15th of this year. It should be pretty obvious

    12 that it would have been unwise in the extreme for the

    13 Prosecutor to wait for trial and issue -- seek the

    14 issuance of this subpoena to require the attendance of

    15 the two witnesses that are the object of the subpoena,

    16 to require their attendance at trial to produce these

    17 documents.

    18 The fact that it was done prior to trial does not

    19 change the proper legal characterisation of what these

    20 orders are. They are a court order that is geared to

    21 the production of evidence at trial, although they are

    22 done in a preliminary matter for expediency's sake, if I

    23 can put it this way. In my submission, there is to

    24 legal consequence that turns on the fact that they were

    25 issued prior to trial.

  44. 1 So --

    2 JUDGE McDONALD: Pre-trial. Prior to trial.

    3 JUSTICE ARBOUR: Prior to trial but post-indictment. In my

    4 submission, that is the critical distinction.

    5 This brings me to situating these proceedings in

    6 their proper criminal law context. In my submission

    7 whether a subpoena is a particular force of

    8 compellability of witness attendance and production of

    9 documents is not the issue. It is perfectly clear from

    10 the many submissions that have been made to the court

    11 that it is not a vehicle that is known as such in all

    12 criminal jurisdictions, and in retrospect it might have

    13 been preferable not to alarm potential recipients of

    14 that order, but to merely state that this is an order

    15 compelling the attendance of a witness and the

    16 production of documents, rather than use a terminology

    17 that may be seen as containing more than it does. It is

    18 simply an order compelling the attendance of the

    19 witness, the production of documents, and it conveys

    20 that there is a compulsory order, and there is no

    21 element of discretion.

    22 I will turn to remedies and enforcement after

    23 Mr Crawford makes arguments with respect to

    24 international law issues.

    25 JUDGE McDONALD: Excuse me. Let me just ask you a question

  45. 1 regarding your characterisation of the meaning of

    2 subpoena. You say it is an order with compulsion. Of

    3 course, Croatia would say that it is under penalty -- I

    4 do not want to speak for Croatia -- it is not under

    5 compulsion but under penalty and it presupposes that the

    6 issuing authority has a power then to impose a penalty.

    7 You phrased it differently. You have said it is under

    8 compulsion. Do you disagree that subpoena means by its

    9 very definition under penalty?

    10 JUSTICE ARBOUR: Certainly it is terminology -- it's a

    11 literal translation of the Latin expression suggests it

    12 is not "under pain" -- it is "under the threat of

    13 penalty", but in my submission this is giving way too

    14 literal an interpretation to this particular vehicle for

    15 the compellability of evidence. The penalty that is

    16 being contemplated is simply a means of enforcement.

    17 Ultimately what the court seeks is not to punish

    18 recalcitrant witnesses.

    19 What the court seeks is to make them attend. So

    20 the threat of unpleasant consequences in some cases may

    21 be felt more strongly than in others by some of the

    22 potential witnesses, but ultimately the object is to

    23 secure the attendance of the witness or obtain the

    24 documents. There is no goal in the punishment by

    25 itself. This is not a criminal sanction that has any

  46. 1 other purpose but to give teeth to the power of the

    2 court to secure the attendance of the witness and the

    3 production of documents. So the fact that the penalty

    4 may be unavailable either because, for instance, in the

    5 case of a fine, the witness has no money, in my

    6 submission is totally immaterial.

    7 JUDGE JAN: It is an empty threat.

    8 JUSTICE ARBOUR: It is not an empty threat in my submission

    9 in the case of individuals. It has indeed rather

    10 serious consequences if there is a defiance of a court

    11 order in the case of an individual, and in my opinion

    12 the fact that this particular statutory framework may

    13 not contemplate a penalty in the traditional sense, a

    14 fine, for instance, being imposed on a state, does not

    15 in any way detract from the legally binding character of

    16 the order.

    17 The fact that it may not be either wise or

    18 feasible to impose, for instance, a nominal fine on a

    19 state in my submission does not change the fact that a

    20 state can be legally bound to comply. The

    21 unpleasantness of the consequences may be felt

    22 differently by an individual, as they are by a

    23 corporation, a corporate entity or a state, but in my

    24 submission it does not change the legally binding

    25 character.

  47. 1 Obviously compliance is made more difficult when

    2 there is an absence of access to a penalty that would

    3 serve as an encouragement. I will certainly concede

    4 that part.

    5 JUDGE McDONALD: I think Mr Condorelli would say the

    6 problem is not with the thing but with what the thing is

    7 called. So perhaps the opposition to the use of a

    8 document called a subpoena is because it is not

    9 something that is known in civil law and because

    10 traditionally in common law it carries with it the

    11 penalty of a fine and imprisonment, but that is not the

    12 only interpretation. The problem really is what the

    13 thing is called, but the thing could have different

    14 consequences, or no? You tell me.

    15 JUSTICE ARBOUR: In my submission, the methods of

    16 compelling the production of evidence and the testimony

    17 of witnesses vary greatly, particularly between legal

    18 systems that have a common law root and civilian legal

    19 systems. I will concede that, but it is absolutely

    20 crystal clear that even in systems that do not use that

    21 particular technique, invariably all criminal courts

    22 that purport to hold fair criminal trials put at the

    23 disposal of the judicial organ the capacity to access,

    24 either directly or by putting tools in the hands of the

    25 parties -- to access the evidence, be it testimonial or

  48. 1 documentary, that is essential for a reliable

    2 disposition of the case.

    3 Whether this is done by giving a juge d'instuction

    4 very broad powers, for instance, of accessing himself or

    5 herself that evidence or whether it is done by equipping

    6 the parties with the capacity to bring this evidence

    7 into court, it is a wide variation in procedures, but it

    8 does not detract from the empowerment that all criminal

    9 courts have in one form or another to compel or to

    10 access -- I will put it this way, because either it done

    11 on their own motion or by compelling others to do it --

    12 to compel the production of factual information that is

    13 necessary for a reliable and fair disposition of the

    14 case.

    15 So the fact that this particular technique is not

    16 available in legal systems, where most of the factual

    17 information is collected by a judicial officer, such as

    18 a juge d'instruction, who has enormous coercive powers

    19 himself, akin to a search warrant, where there is a more

    20 proactive judicial direct access to the evidence, or

    21 whether it is done by a court ordering witnesses to

    22 attend trial, in my submission does not change the

    23 fundamental characteristic.

    24 Why this procedure was chosen here by the

    25 prosecution is because that is the one that is the most

  49. 1 easily traceable in the language of the rules. The

    2 reference to a subpoena is contained in Rule 54, so it

    3 was certainly an available mechanism, and I will be

    4 making submissions, if you will allow me, a little later

    5 on the question of remedies and enforcements that will

    6 allow me to link that particular procedure to Rule 77,

    7 but I am ahead of myself.

    8 JUDGE McDONALD: Rule 54 was amended on January 30th,

    9 1995. In the annual report it states that it was

    10 amended to include the use of subpoenas:

    11 "... to improve the clarity, consistency and

    12 completeness of the rule".

    13 In your brief you say for clarifying. Actually

    14 that is not the full statement. The annual report says:

    15 "... to improve the clarity, consistency and

    16 completeness."

    17 Is it your position that the Statute gives the

    18 Tribunal the power to issue a subpoena explicitly, or

    19 are you saying that it is implicit in the power to issue

    20 orders?

    21 JUSTICE ARBOUR: It is clear there is no explicit --

    22 JUDGE McDONALD: Or are you saying it is the inherent power

    23 that the Tribunal has, regardless of a specific

    24 reference in the Statute?

    25 JUSTICE ARBOUR: In my submission, if nothing else, it would

  50. 1 have to form part of the inherent powers of a criminal

    2 court. There would be no doubt that a mechanism would

    3 have to be designed by the court itself to allow it to

    4 get access to the evidence that is necessary for a fair

    5 disposition of the case. It seems to me that there is

    6 no legal system purporting to hold a fair criminal trial

    7 that would be able to afford the risk of having its

    8 factual conclusion undermined by a third party

    9 withholding information and then releasing it after the

    10 court has reached a decision, to undermine the

    11 reliability of the product. Whichever means are used to

    12 achieve that purpose, either the court will equip itself

    13 or will equip the parties, or will use another judicial

    14 officer, but ultimately a criminal court, which is

    15 formally required to make a conclusion of fact, either

    16 beyond a reasonable doubt or on some equivalent very

    17 high standard of proof -- there is no criminal court

    18 that can discharge that mandate without having --

    19 without being equipped to make sure that no information

    20 can be withheld from the court, subject, of course to

    21 relevance, materiality and exclusionary rules that in

    22 the end still serve the interests of justice.

    23 So, in my submission, if nothing else, it would

    24 have been implicit that an inherent power of that nature

    25 existed when the Security Council created a criminal

  51. 1 court -- it is the only international criminal court,

    2 but as not just a judicial organ but that type of

    3 judicial organ -- absent anything else, in my

    4 submission, it would have been implicit that it has such

    5 powers. I say the case is much easier than that,

    6 because the Statute contains language perfectly

    7 consistent with that in the Articles that I have

    8 submitted earlier.

    9 JUDGE McDONALD: That speak to orders.

    10 JUSTICE ARBOUR: Orders that are necessary for the conduct

    11 of the trial, the trial having to be fair and

    12 expeditious and the accused having rights to compel the

    13 attendance of witnesses in support of its position and

    14 so on. So the seeds, I think, of that power are clearly

    15 founded in the Statute.

    16 If I may make one final --

    17 JUDGE McDONALD: So the power is inherent but also provided

    18 by the Statute.

    19 JUSTICE ARBOUR: In my submission it is express. In a

    20 Statute -- let us be very clear -- that contains 34

    21 Articles -- I mean, this Statute was never meant to be

    22 expressed to that level. When a Statute creates a

    23 criminal court and gives the judges of that court the

    24 power to make orders that are necessary for the conduct

    25 of a fair trial, in my submission, that is an express

  52. 1 power of compellability, of testimonial and documentary

    2 evidence. What form that power will take varies

    3 greatly, depending on the particular structure of

    4 different legal systems, but it is unquestionable, in my

    5 submission, that that is what is contemplated by the

    6 giving of that kind of powers to a judge presiding over

    7 a criminal trial that purports to be fair, efficient,

    8 effective and that will produce a reliable conviction or

    9 acquittal.

    10 If I may just make one final submission with

    11 respect to this terminology of subpoena, rule 98

    12 provides that:

    13 "A Trial Chamber may order either party to produce

    14 additional evidence at trial."

    15 Then it says:

    16 "It may itself summon witnesses and order their

    17 attendance."

    18 It is my submission that it would have made no

    19 difference had this rule said:

    20 "It may itself order a subpoena to witnesses and

    21 order their attendance."

    22 What is contemplated -- and in my opinion it would

    23 not be a useful exercise to try to distinguish between,

    24 in common law jurisdictions, what is the difference

    25 between a summons and a subpoena -- in my submission it

  53. 1 makes no difference. What this speaks to is this

    2 fundamental compellability power, which is then

    3 exercised to the very end prior to the final factual

    4 determination. The court then has this residual power

    5 in Rule 98 perfectly well rooted, in my submissions, in

    6 the Statute, in Article 19, 20 and 29, to ensure that

    7 all relevant material necessary, factual information,

    8 has been put at its disposal for a fair determination of

    9 the issue.

    10 JUDGE McDONALD: Let me just interrupt you one moment, and

    11 it is very difficult to separate your position that the

    12 Tribunal has the power to issue an order with compulsion

    13 with the question of remedies, because it may be that we

    14 have the power to issue an order or a request, but as

    15 soon as we state that we have the power to issue a

    16 subpoena, it is certainly implied that will be with

    17 compulsion exercised with the issuing party. That is

    18 when we get into a problem. Now is that something that

    19 Mr Crawford is going to address. Do you understand what

    20 I am saying?

    21 JUSTICE ARBOUR: Absolutely.

    22 JUDGE McDONALD: Everything you have said so far is not

    23 even contested. That is there is the power to issue

    24 orders and requests, but when you speak of orders with

    25 compulsion, particularly if you are talking about

  54. 1 compulsion issued by the issuing party, that is when we

    2 get into some disagreement.

    3 JUSTICE ARBOUR: I am sorry. I think I misunderstood.

    4 When you say issued by the issuing party, the order is a

    5 court order, in my submission.

    6 JUDGE McDONALD: That is true, but the order that is issued

    7 with compulsion, a subpoena, the party that issues it,

    8 that is the court, then has the power to determine

    9 appropriate sanctions. It may be that you want to leave

    10 that aside and say that at this point what you are

    11 talking about is the power in the Statute and the

    12 inherent power to make -- for a criminal court to issue

    13 orders that must be compiled with, period. Then the

    14 issue of whether or not it is up to the court or whether

    15 the court has the power to compel compliance is an

    16 entirely different issue, which may relate to remedies.

    17 JUSTICE ARBOUR: Yes. I may answer very briefly, but, if

    18 I may, I think I could make a more cogent argument on

    19 the whole enforcement issue after Professor Crawford

    20 situates the debate in the international context, but in

    21 answer to your question I will say that, if I am correct

    22 up to this point, that what we are talking about is the

    23 power of a court to compel testimonial and documentary

    24 evidence, it is implicit, in my opinion, that

    25 compellability has to have some means of enforcement,

  55. 1 and my submission will be that Rule 77, given a proper

    2 interpretation that is meant to render the intent of the

    3 Statute effective, has all the components that make it

    4 permissible for the court to use that mechanism to

    5 compel the attendance of the witness and the production

    6 of documents by that witness under the threats of

    7 penalties that are contemplated by that provision, but

    8 I may return -- unless you want full submissions on that

    9 point at this stage, what I --

    10 JUDGE McDONALD: Is it necessary and essential, though, for

    11 the Tribunal to have the power to not only issue an

    12 order but to at the same time have the power to compel

    13 compliance with the order? Is it necessary and

    14 essential for the Tribunal to have that second power,

    15 that is to order -- to compel compliance with that

    16 order, or would resort to the Security Council to

    17 enforce, so to speak, that order not also be as

    18 effective, particularly considering that the Security

    19 Council has more power, at least in its arsenal of

    20 effective measures, than Rule 77 has of a US $10,000

    21 fine and six months' imprisonment? The Security Council

    22 has some pretty powerful measures at their disposal. So

    23 is it not as effective for the Security Council to act

    24 than for this Tribunal to say 6 months, 10,000 dollars

    25 fine.

  56. 1 JUSTICE ARBOUR: In my submission, these remedies are

    2 cumulative. They are not exclusive of each other. The

    3 weight of the Security Council may be brought to bear to

    4 a recalcitrant state, that is a state against whom a

    5 legally binding order has been issued, and who is not

    6 complying. In my submission the proper avenue for the

    7 Tribunal is to turn to the Security Council or frankly

    8 to public opinion -- these proceedings are public -- and

    9 that is the end of the road in terms of the enforcement

    10 of the compellability powers of the court, but in my

    11 submission it would be most inconvenient and certainly

    12 not contemplated by the Statute that when the court

    13 issues a summons to a witness that, if witness does not

    14 appear, that the court would then turn to the Security

    15 Council with a list of names of persons who are not

    16 complying.

    17 This is why, in my submission, Rule 77 is

    18 perfectly consistent with the power of the court to

    19 control its own proceedings and to enforce its

    20 absolutely unambiguous powers to compel the production

    21 of evidence from natural persons, persons who can be

    22 physically brought before the court. I will be

    23 returning to that point, if I may, later, but in my

    24 submission the two are not mutually exclusive on this

    25 point.

  57. 1 If I may then just summarise my introductory

    2 remarks, it is, in my submission, expressed under the

    3 Statute and implied in the creation by the Security

    4 Council of a criminal court that the court has to have

    5 the power to compel testimonial and documentary

    6 evidence. What Mr Crawford will address is whether or

    7 not the international character of this criminal court

    8 in any way departs from the power that all criminal

    9 courts enjoy in all jurisdictions that have a mandate

    10 similar to this one. I will be returning to my

    11 submissions on national security and remedies after

    12 Mr Crawford. Thank you, your Honour.

    13 JUDGE McDONALD: One minute, Mr Crawford: (Pause). If

    14 I may speak to the Prosecutor, you had indicated very

    15 kindly in your opening remarks that you would defer your

    16 argument -- not your time -- at least interrupt your

    17 argument so that the amici who have time constraints

    18 could present their argument. After conferring, the

    19 judges think that it may be appropriate now,

    20 Mr Crawford, to begin to hear from the amici who have

    21 time constraints. We will then recess for lunch at

    22 1 o'clock, and return at 2.30. We do not need an hour

    23 and a half to eat, but there are other parties who need

    24 to make arrangements and need that time. Then we would,

    25 I suppose, conclude with the five amici who have to

  58. 1 leave, Mr Crawford, if you do not mind, and then we

    2 would hear from you. Is that acceptable? Okay. Very

    3 good.

    4 Now, Mr Pellet, we have prepared a list here of

    5 order of amici, and we had wanted to hear, because of

    6 time constraints, I guess, from Mr Pellet, then

    7 Mr Condorelli, both of whom have a time problem, and

    8 then we will hear from the other amici who have time

    9 problems. Is there any objection to that, Mr Rivkin?

    10 MR RIVKIN: None, your Honour. You may proceed as you

    11 like.

    12 JUDGE McDONALD: Thank you. Miss Vidovic, Miss Glumac?

    13 MME VIDOVIC: No objection, your Honour.

    14 JUDGE McDONALD: Mr Pellet, come forward.

    15 Presentation by PROFESSOR PELLET

    16 JUDGE McDONALD: Mr Pellet, I read your submission. We all

    17 read your submission. I appreciate it. It was very

    18 good. I have a question regarding the issuance of

    19 subpoenas to individuals, subpoena duces tecum to

    20 individuals. Is it your position that the Tribunal may

    21 only issue a subpoena to an individual in his personal

    22 capacity or is it your position, as you later take, at

    23 least on page 16, I think, that the Tribunal may address

    24 a subpoena to an individual even if exercising the

    25 official function, and that would bind them

  59. 1 independently of whether they are agents -- whether they

    2 are state agents? So would you tell me what your

    3 position is regarding the power of the Tribunal to issue

    4 a subpoena to an individual?

    5 MR PELLET: Your Honour, if you do not mind, I take my

    6 brief.

    7 Your Honour, my position, I think, is rather clear

    8 and rather firm. The Tribunal and all its components

    9 can address a subpoena to an individual as an

    10 individual. If that person also has official functions,

    11 that person cannot refuse to appear before the Tribunal

    12 or to execute its order on the pretext that he is

    13 carrying out official functions. However, if the

    14 Tribunal desires to hear a person not as an individual

    15 but in his official capacity, at that point my feeling

    16 is that the Tribunal must consider that the individual

    17 is actually the state and the objections against the

    18 subpoena that I have can therefore be fully expressed.

    19 JUDGE McDONALD: Well, are you saying that we would call an

    20 individual -- let us say he is a Minister of Defence,

    21 for example -- and ask that he produce certain

    22 documents? That Minister then could not object on the

    23 pretext that he is carrying out official functions, but

    24 if we are calling him because of his official capacity,

    25 then actually that would be a subpoena addressed to the

  60. 1 state? If that is your position, we would typically not

    2 have an interest in an individual who is a custodian of

    3 documents in an official capacity. That would be the

    4 only reason that a subpoena would be addressed to him,

    5 unless, of course, the Prosecutor or the defence wish to

    6 issue a subpoena to a witness or some person who is not

    7 connected with the state and does not hold documents in

    8 an official capacity.

    9 MR PELLET: I believe that you, your Honour, understood

    10 what I had in mind. I believe that if an individual is,

    11 for instance, Minister of Defence, but because of his

    12 background he learned about certain things which might

    13 be of interest to the Tribunal, and might be of interest

    14 to the Tribunal as a witness, even if he is a Minister

    15 of Defence, which would not be a problem for the

    16 Tribunal in that case, and therefore I continue at that

    17 point to continue to state that the Tribunal is fully

    18 entitled to order him as an individual, Mr X or Mr Y,

    19 can order him to appear before it, and in no way can

    20 this individual hide behind his official

    21 responsibilities.

    22 What disturbs, me -- if you permit me to make a

    23 comment -- what disturbs me in the orders you issued,

    24 and which are the reason for all of these proceedings

    25 here, is that you ordered the appearance of two

  61. 1 Ministers of Defence of two sovereign states,

    2 Bosnia-Herzegovina and Croatia, but, having named them

    3 -- and I think that things would have been much more

    4 simple and that we would have better understood whether

    5 you were addressing yourself as to an individual or as

    6 an organ of the state if you had either said: "I want Mr

    7 X or Mr Y to appear" -- that would have been clear that

    8 it was Mr X or Mr Y; the fact he was Minister of Defence

    9 would not be important -- or to say: "I want the

    10 Minister of Defence to appear." At that point things

    11 would also have been clear. You wanted them as a

    12 Minister, as Minister of Defence, and I think then the

    13 question would have been posed differently. I think

    14 that Mrs Arbour did not convince me, because she is not

    15 making those distinctions, which to me seem to be basic.

    16 JUDGE JAN: So what you are advocating is that every

    17 individual has two obligations, one to his own state and

    18 the other to the Tribunal, and his obligation to his own

    19 state is subordinate to his obligation to this Tribunal.

    20 MR PELLET: No, your Honour. I do not think that that is

    21 really what I have in mind. What I have in mind is that

    22 any individual vis-a-vis the Tribunal must respond to

    23 the orders which he receives, and I make no distinction

    24 in that respect whether we are speaking about an

    25 individual acting as an individual or as one who is

  62. 1 working or acting as the representative of the state.

    2 I would like to make a distinction there but you are not

    3 asking me this question -- I would like to make a

    4 distinction when it comes to knowing what orders can be

    5 addressed to him, and I think the order given to him is

    6 different depending on whether the individual is acting

    7 as an individual or whether he is acting as a

    8 representative of the state, but I make no distinction

    9 at all between the fact that individuals have to appear

    10 before you, just as states must respect the orders that

    11 are addressed to them, but does it mean that the

    12 Tribunal can issue any type of order to any individual?

    13 JUDGE McDONALD: How would you phrase -- as an

    14 internationalist rather than a criminalist how would

    15 you, as you say in your brief, phrase the subpoena? How

    16 would you address it, assuming the Prosecutor wishes to

    17 obtain documents that are in issue in this instance?

    18 Tell us what would you say on the front of the

    19 subpoena? To whom?

    20 MR PELLET: Your Honour, I think that this is really the

    21 very core of the problem. The Prosecutor a little while

    22 back made no distinction whatsoever and said that you

    23 are a criminal tribunal. You have the right to act like

    24 any other criminal tribunal. With respect to the

    25 Prosecutor, I do not believe that. Of course you are a

  63. 1 criminal tribunal but you are also an international

    2 tribunal, and I think since you are an international

    3 tribunal, you cannot consider that you can address

    4 yourselves to any individual in the same manner. By

    5 that I mean that you can address yourself to an

    6 individual, as can any other criminal tribunal. You must

    7 consider that sovereign states to whom you are

    8 addressing your orders are sovereign states and are not

    9 criminals.

    10 Coming back to your question, in my opinion, this

    11 states clearly that you can address yourself to an

    12 individual by sending to him what you call in common law

    13 a subpoena. Things would have been easier had the

    14 Tribunal avoided applying one law which comes from the

    15 common law system, but the idea that one can force an

    16 individual to appear before this Tribunal under penalty

    17 does not shock me as an internationalist. What I do

    18 find disturbing is, when put on the same footing, the

    19 individual and the sovereign state, the sovereign state,

    20 as Mrs Arbour said several times, it does not matter

    21 whether or not we can put a state in prison, but it is

    22 important, because Rule 54 in your rules is connected

    23 with 77, which draws very reasonably the consequences of

    24 Rule 54, but 54 has not been designed for a state. What

    25 corresponds to 54 having to do with states as looked at

  64. 1 by an internationalist, someone from the outside, what

    2 corresponds to Rule 54 is 56, and 56 of your rules is

    3 not extended into 77(B). I do not know if you

    4 understand what I mean here.

    5 JUDGE McDONALD: What I would like you to do is draft the

    6 subpoena for the Prosecutor within the limits that you

    7 think are available, and that is on the front of the

    8 subpoena -- I do not have it handy -- it says "To:

    9 Croatia." Then it says: "To: Mr Susak, Minister of

    10 Defence".

    11 MR PELLET: Uh-huh.

    12 JUDGE McDONALD: How would you frame the subpoena in a way

    13 that you consider to be acceptable under international

    14 law?

    15 MR PELLET: Okay.

    16 JUDGE McDONALD: And under our statute? Just tell me.

    17 MR PELLET: Your Honour, I suppose I would refrain from a

    18 subpoena to Croatia. I would refrain from a subpoena to

    19 the Ministers of Defence, either of them. I would

    20 simply say if the Chambers or yourself want to have him

    21 appear here, I would simply issue a subpoena to Mr --

    22 I have forgotten the name.

    23 JUDGE McDONALD: Mr X let us say.

    24 MR PELLET: Mr X or Mr Y. That is so.

    25 JUDGE McDONALD: And ask him then to bring these documents.

  65. 1 MR PELLET: Yes, your Honour.

    2 JUDGE McDONALD: Now I understand that he was the

    3 custodian, I would presume -- we are speaking

    4 hypothetically -- of these documents only in his

    5 official capacity because he has a title. So you then

    6 would say the subpoena goes to Mr X and you are directed

    7 to bring these documents.

    8 MR PELLET: In that case I would suggest that you should

    9 issue an order addressed to the state or to the Minister

    10 of Defence, which would order the production of the

    11 documents but not the word "subpoena under penalty".

    12 I saw the representatives of Croatia nodding with

    13 conviction to what I just said, but I would also have to

    14 say on the other hand I do not follow what they are

    15 saying when they say you cannot address yourself to this

    16 or that Minister. I think you can do that. You can do

    17 that to a Minister, deciding you want to say the

    18 Minister of Defence and not the Minister of Foreign

    19 Affairs. That is the implicit power of any court.

    20 JUDGE McDONALD: But we only want to hear him -- unless he

    21 is a suspect, of course, which is another rule, or

    22 unless he is an indictee -- setting that aside, we only

    23 want to hear him because there are documents that need

    24 to be produced. On page 16 of your brief you say:

    25 "Therefore, the ICTY can address itself to

  66. 1 individuals even if they are exercising official

    2 functions and issue orders binding on them independently

    3 of whether or not the state agrees".

    4 So we may issue a subpoena to Mr X, and we may

    5 tell him to bring certain documents, but you say if he

    6 is holding those documents because of the position that

    7 he holds as an employee of the state, then that in

    8 essence would be a subpoena directed to the state, which

    9 I understand you say would not lie.

    10 MR PELLET: No, your Honour. I think that you would say

    11 that -- you have a choice to know who you would want to

    12 address yourself to, to Mr X or to the Minister of

    13 Defence, but I do not believe that you can turn the

    14 prohibition which I think is -- under which you are

    15 around in order to address a subpoena to a state by

    16 saying: "I will forget about the state and I will

    17 address my subpoena to an individual." I think that you,

    18 within your intimate conviction, must know whether Mr X

    19 is of interest to you as an official or is of interest

    20 to you as an individual, but I do not believe that you

    21 can address yourself to Mr X as an individual, whereas

    22 you know that he is acting officially. I think that the

    23 point is Mr X cannot, of course, say -- can say that he

    24 can hide behind his official function, saying: "It is

    25 as an official you are speaking to me and you do not

  67. 1 have the right to do it under penalty".

    2 JUDGE McDONALD: Mr Pellet, we do not have any additional

    3 questions. Are there any other remarks that you would

    4 like to make?

    5 MR PELLET: I have noticed that you have read very

    6 carefully my briefs. I am very grateful. Thank you

    7 very much for having heard me.

    8 JUDGE McDONALD: It was very helpful. Thank you very much

    9 for taking the time in coming.

    10 MR PELLET: Thank you.

    11 JUDGE McDONALD: Mr Condorelli?

    12 Presentation by MR CONDORELLI

    13 JUDGE McDONALD: Mr Condorelli, I had a question regarding

    14 your reference to the Croatian Constitutional Act on

    15 Cooperation of the Republic of Croatia with the

    16 International Criminal Tribunal, and it relates to

    17 whether or not this particular Act contemplates that the

    18 Tribunal may have direct access to individuals.

    19 MR CONDORELLI: Thank you, your Honour. Now perhaps

    20 before replying let me remind you that yesterday by fax

    21 I sent a more comprehensive version of the brief in

    22 question. I have not seen it be distributed. I hope

    23 it has not been lost. I hope we will be able to take

    24 account of it. It does not change the ideas

    25 presented. It is just a matter of developing certain

  68. 1 points a bit more. That said, I would like to answer

    2 the question you have put to me.

    3 Now let me take as the basis my conviction that on

    4 the basis of its Statute and not only on the basis of

    5 rules the Tribunal is fully authorised to address itself

    6 directly to the state authorities concerned. Now,

    7 I think it is clear in the statutes, and the starting

    8 point of my analysis is to find that the Tribunal is

    9 within its purview when it addresses itself directly via

    10 orders not only to individuals but also to states, and

    11 in all states in line with what the Security Council has

    12 said, and to the state authorities concerned.

    13 So on the basis of that analysis, I then have to

    14 look to see whether the domestic legislations and in

    15 particular those of the states involved were consistent

    16 or not consistent with what can be read in the

    17 Statute. My findings were that both in the Croatian

    18 and the Bosnian legislation you have room for an

    19 interpretation to come to the conclusion that they are

    20 consistent with what is in the Statute. Otherwise you

    21 would have to say that those states would have problems

    22 in terms of international law, because they would not

    23 have properly implemented their international

    24 obligations, but the good news is that both of them, and

    25 in particular Croatia, they have adapted their

  69. 1 legislation in such a manner that they can be construed

    2 as being consistent with what emerges from the Statute

    3 and the rules of the Tribunal.

    4 JUDGE McDONALD: So if Croatia were to take the position

    5 that the Tribunal may only relate to the office of

    6 cooperation with the International Tribunal and not with

    7 high governmental officials, it would be your position

    8 that its own legislation, The Constitutional Act on the

    9 Cooperation of the Republic of Croatia with the

    10 International Criminal Tribunal, permits such?

    11 MR CONDORELLI: Yes. Now, as I point out in my brief for

    12 the legal assistance of the Tribunal, the Croatian

    13 legislation does not state that any request from the

    14 Tribunal necessarily has to go -- that is in Article 3

    15 -- via the central state authorities. So in Article

    16 27 it states that the Croatian authorities, the

    17 competent authorities -- it says "have to execute the

    18 requests from the Tribunal". It is not restated there

    19 that those requests have to transit via the central

    20 government, and, in fact, there is a specific provision

    21 in Article 27. It says that Article 3 applies mutatis

    22 mutandis, which, as I see it, means that this can be

    23 construed as meaning that there are some differences

    24 that make it possible for requests to be dealt with

    25 directly on the basis of your request.

  70. 1 JUDGE McDONALD: I had a second question, and that relates

    2 to the position that you take in your brief that there

    3 is no legal basis for the Tribunal to impose a criminal

    4 sanction against a state for non-compliance, on page 9

    5 at least of the English translation, and you state that

    6 there is nothing in the Statute -- wait a minute. Let

    7 me see if I can find it. You say, regarding the power

    8 to issue a subpoena to a state and to exact criminal

    9 compliance:

    10 "Does the ITCY have a part to play in respect of

    11 the consequences of the violation of its Statute by a

    12 state?"

    13 Then you say:

    14 "It is known that the Statute contains nothing on

    15 this score".

    16 MR CONDORELLI: Oui.

    17 JUDGE McDONALD: Does the Statute then not speak to the

    18 power of the Tribunal to enforce its orders that may be

    19 denominated subpoenas, and I realise the latter is not

    20 mentioned in the Statute?

    21 MR CONDORELLI: Yes. With your leave, your Honour, let me

    22 consider this in this setting. Now with regard to my

    23 position, I believe that if you look at the Statute in

    24 conjunction with the powers of the Security Council as

    25 outlined in Chapter 7 of the UN Charter and as spelt out

  71. 1 in Article 2, paragraph 7 of the Charter, with regard to

    2 the possibilities the Security Council has to exceed

    3 national jurisdictions when enforcement measures are

    4 involved, on that comprehensive basis I come to the

    5 conclusion that, as the Prosecutor said, there is no

    6 doubt that the Tribunal has full authority to draw up

    7 compulsory orders with regards to states as well as with

    8 regard to individuals.

    9 Now with regard to the question that flows from

    10 that, as you suggested earlier on, when talking to

    11 Professor Pellet, as to whether this power to issue

    12 compulsory orders involves the possibility of laying

    13 down penalties, that is, of course, a matter of the

    14 subpoena. Now, in my brief I indicated that subpoena

    15 is a concept stemming from a particular legal

    16 background. It is something from common law and it is

    17 quite unusual in other countries, and the terms used

    18 might best perhaps be avoided, because subpoena duces

    19 tecum gives rise to certain connotations, which are due

    20 more to the name of the thing, as you said, than to the

    21 thing itself. So it is not the fact that it is a

    22 compulsory order. It is rather the fact that it be

    23 surrounded by this language. It is a notion of under

    24 penalty. As I see it, there are penalties. These are

    25 the penalties that the Tribunal has available in respect

  72. 1 of states, in respect of state authorities, but these

    2 penalties are not the same as an internal judge would

    3 have on account of his national legal system, but there

    4 are penalties, and what I have striven to do, what

    5 I have accepted in the second version of my brief is the

    6 idea that the Tribunal, when it addresses an order for

    7 documents to a state or to a state authority, is working

    8 on the basis of a specific obligation on the part of the

    9 state to comply with the obligations stemming from the

    10 Security Council.

    11 In the event of a violation of those obligations,

    12 the Tribunal's contact via the President with the

    13 Security Council has to be construed as a denunciation,

    14 a reporting of the state to the Security Council, so

    15 that the latter might lay down penalties, but I believe

    16 that the fact in itself of notifying a state to the

    17 Security Council cannot in international law be regarded

    18 as a penalty itself. There are precedents, significant

    19 and useful precedents, of international law, and it can

    20 be seen that to come after judicial review to the

    21 conclusion that a state has not met its international

    22 obligations that can be notified to the Security Council

    23 is a significant penalty. This way you are pinpointing

    24 a state before international public opinion and saying

    25 that it is not meeting its international obligations.

  73. 1 So when it comes to the other penalties involved,

    2 one can leave those aside for the time being. The fact

    3 that a Tribunal comes to the conclusion on the basis of

    4 a judicial review that a state is violating

    5 international law, that in itself -- there is some

    6 rather old, as I may say, arbitration decisions that

    7 came to that conclusion, and what I have in mind, for

    8 example, is the case where the idea was put forward

    9 where when you indicate that a state has not complied

    10 with its international obligations, that itself is a

    11 penalty. So --

    12 JUDGE McDONALD: If I may just interrupt you for one

    13 moment, my question is this, and that is: what is there

    14 in the Statute of the Tribunal that (a) precludes the

    15 Tribunal from enforcing its orders on its own and (b)

    16 what is there in the Statute that requires or even

    17 suggests that -- I will withdraw the "suggests" --

    18 requires that the Tribunal rely on the Security Council

    19 to exercise some sanction? Mr Pellet says in his brief

    20 that there is really nothing -- I should have mentioned

    21 that to Mr Pellet -- there is nothing in the Statute

    22 that says that the Tribunal need report to the Security

    23 Council non-compliance. He says it is suggested,

    24 however, because of the relationship that we have with

    25 the Security Council, that we were established as an

  74. 1 enforcement measure. So that perhaps is a suggestion,

    2 but there is nothing in the Statute -- I am asking you

    3 -- that says that the Tribunal must go to the Security

    4 Council to enforce its obligations, nor is there

    5 anything in the Statute that says that the Tribunal may

    6 not enforce its orders.

    7 I contrast that with the Charter of the United

    8 Nations and Article 94 that relates to the International

    9 Court of Justice, where there it is explicitly stated

    10 that:

    11 "If a party to a case fails to perform the

    12 obligations incumbent upon it under a judgment rendered

    13 by the court, the other party may have recourse to the

    14 Security Council, which may, if it deems necessary, make

    15 recommendations or decide upon measures to be taken to

    16 give effect to the judgment".

    17 Nothing like that in our statute one way or the

    18 other.

    19 MR CONDORELLI: With your leave, let me give you the

    20 following answers. Article 94 of the UN Charter deals

    21 with the relations between two main UN organs, the

    22 Security Council and the court, and lays down that the

    23 Security Council is the one for implementing the court's

    24 decisions, the court being an organ -- being on the same

    25 footing as a main organ of the UN in the Charter.

  75. 1 Now with regard to your Tribunal, this Tribunal is

    2 set up by the Security Council as a subsidiary organ of

    3 the Security Council, and accordingly this Tribunal has

    4 a standing obligation to be in touch with the organ that

    5 established it and report back to it regularly, and this

    6 is what your Tribunal does regularly, give reports

    7 informing the Security Council of its activities every

    8 so often.

    9 As I see it, the Rules have three different

    10 provisions on this, even if the Statute does not touch

    11 on this score. There are three different provisions in

    12 the rules referring to the information provided by the

    13 Security Council in respect of obligations by the

    14 states. These three provisions, as I see it, are a

    15 proper interpretation of the Statute and the spirit

    16 underlying it, that is to say, for a subsidiary organ

    17 set up by the Security Council, and these three

    18 provisions make clear that your Tribunal comes to a

    19 judicial finding that states have not met their

    20 obligations and that then is notified to the Security

    21 Council. As I said earlier on, such notification as a

    22 result of a judicial review constitutes a penalty and

    23 that is a penalty that is in the hands of the Tribunal.

    24 So there you have that possibility, the Tribunal has

    25 that possibility, to sanction it.

  76. 1 JUDGE McDONALD: Those are Rules 11, 59 and 61.


    3 JUDGE McDONALD: All of those deal with matters that occur

    4 before the initial appearance of the accused. That has

    5 to do with deferral, and then the failure to execute an

    6 arrest warrant, the latter two. What we have now in

    7 this posture, as the Prosecutor has argued, is she says

    8 post-indictment. In my questioning to you I go

    9 further. This is post-initial appearance, and really

    10 with the potential trial date -- I am not sure. So we

    11 are in a different posture now. We are not in the

    12 posture of asking a state to defer. We are not in the

    13 posture of asking a state to execute an arrest warrant,

    14 where we could leisurely contact the Security Council

    15 and ask them if they could do something about this

    16 failure. We are now in the midst of an impending

    17 trial, with a person who has been in custody for 12

    18 months. We are in the process of exercising our

    19 judicial functions most definitely. Does that call for

    20 a different consideration?

    21 MR CONDORELLI: Your Honour, with regard to states, at all

    22 events if you rule out the possibility I referred to,

    23 the Tribunal does not have any other possibility to lay

    24 down penalties for states.

    25 JUDGE McDONALD: Why not? What is there in the Statute

  77. 1 that says that or what is there in international law

    2 that precludes that?

    3 MR CONDORELLI: No, it is not a matter of international law

    4 in general terms. The Security Council might have

    5 empowered your Tribunal differently granting it further

    6 powers. It did not do that. You have the choice.

    7 It has preserved itself the right in respect of states

    8 to lay down penalties, and the only penalty you have is

    9 to report to the Security Council that a state did not

    10 meet its obligations.

    11 JUDGE McDONALD: Help me. Point me to the Statute.

    12 MR CONDORELLI: In the Statute of the Tribunal there is

    13 nothing on this, but your Tribunal was established as an

    14 organ subsidiary to the Security Council, and every

    15 subsidiary organ has a general obligation to report back

    16 to the body that set it up, to indicate what is

    17 happening to it. It is on that basis that the Tribunal

    18 went ahead and included those to be Rules mentioned in

    19 its Rules of Evidence and Procedure. They are not

    20 comprehensive and do not cover all cases, but our case

    21 does remain within the framework of the general context

    22 of the relations between the Tribunal and the Security

    23 Council.

    24 JUDGE McDONALD: I understand. Is there anything else

    25 that you wish to add at this point?

  78. 1 MR CONDORELLI: Yes. By your leave, your Honour, I would

    2 just like to add the following. On the basis of my

    3 reasoning, which I have tried to set forth for you,

    4 I referred to the possibility of this penalty which the

    5 Tribunal might take in respect of states, that is

    6 notification to the Security Council after judicial

    7 review, etc. I do not question that your Tribunal has

    8 the possibility of imposing penalties on individuals,

    9 that is to say in the event of somebody refusing to

    10 testify or providing false testimony, that is to say if

    11 you call individuals and their behaviour is improper.

    12 That is an intermediary problem. That is to say, your

    13 Tribunal when dealing directly with a concerned state

    14 authority or to a high government official.

    15 Now, as I see it, you do have that possibility,

    16 but then, and this is what I have tried to develop in

    17 the brief, in terms of what is at your disposal, you

    18 only have the penalty that applies for relations with

    19 the state, because that internal authority is conducting

    20 itself in a way that it is the state that is

    21 responsible. So it is the state itself that has to be

    22 identified and reported to the Security Council.

    23 Now for reasons due mainly to the principle of due

    24 process, without nullem crimen sine lege, etc, so it is

    25 hard to conceive that you might lay down a penalty in

  79. 1 terms of a fine or imprisonment if it is not in the

    2 rules. We have Rule 77 in the event of contempt of the

    3 Tribunal, but that does not relate to officials. As

    4 Professor Pellet said, that is in relation to

    5 individuals who are called before you as such.

    6 JUDGE McDONALD: Also 77(C) provides for contempt if a

    7 person interferes or intimidates a witness. That is

    8 also in 77(C). So that person may not actually be

    9 testifying before us. It does. You say that it

    10 remains to be seen as to whether or not we could hold a

    11 high governmental official in contempt, and that is

    12 because you say there is no specific rule on that, and

    13 then it would violate the principle of nullem legem,

    14 nullem crimen.

    15 MR CONDORELLI: Precisely.

    16 JUDGE McDONALD: If we find the Tribunal has inherent power

    17 to hold an individual in contempt, that would not be

    18 sufficient. It would have to be actually a rule that

    19 would deal with that situation.

    20 MR CONDORELLI: Your Honour, I am quite alive to the

    21 inherent powers of the Tribunal, but my analysis is the

    22 following. The Tribunal might via its rules have used

    23 those inherent powers and come up with a rule spelling

    24 out an offence by others than witnesses, but that was

    25 not done, and in so far as such a rule does not exist,

  80. 1 the principle of due process stops you from coming up

    2 with the rule by analogy, since the only reference is to

    3 the witness.

    4 JUDGE McDONALD: Thank you very much, Mr Condorelli, for

    5 appearing and thank you for submitting the brief. We

    6 have both. We do have both. Thank you.

    7 We will return after our lunch recess and then

    8 hear from the remaining three, I think, amici, and then

    9 we will hear finally from Professor Crawford. So we

    10 will stand in recess until 2.30.

    11 (1.10 pm)

    12 (Luncheon Adjournment)














  81. 1 (2.30 pm)

    2 JUDGE McDONALD: Okay. We are ready to continue. Let the

    3 record reflect that General Blaskic is here. We will

    4 hear from the next amicus.

    5 Mr Donovan, are you next?

    6 Presentation by Professor Donovan

    7 PROFESSOR DONOVAN: May I take a moment, your Honour, just

    8 to clarify the record note that the faxed copy of our

    9 brief that was distributed today includes two pages that

    10 were inadvertently faxed but were not included in the

    11 hard copy. Those do not constitute any part of the

    12 brief. I believe they have been numbered just to keep

    13 the record clear.

    14 JUDGE McDONALD: Thank you. In your brief, you have

    15 suggested that the Tribunal has the power to issue

    16 subpoena duces tecum to both states and high

    17 governmental officials and that the Tribunal has the

    18 power to hold both in contempt. You have stated that

    19 after affording Croatia an opportunity to be heard, the

    20 Tribunal could hold them in contempt. Tell me, as a

    21 matter of practicality, how would the Tribunal hold a

    22 state in contempt?

    23 PROFESSOR DONOVAN: Your Honour, we would disentangle the

    24 issues of the binding character of Croatia's obligation

    25 and whatever penalty. There has been significant

  82. 1 discussion here this morning about can the Tribunal

    2 issue a subpoena because intrinsic to a subpoena is some

    3 element either of compulsion or penalty. We see that as

    4 no barrier to the Tribunal's authority.

    5 What seems to be acknowledged on all sides is that

    6 Croatia has a binding obligation to comply or

    7 cooperate. Whether or not the Tribunal's mandate is

    8 discussed in terms of an order for a request for

    9 assistance, or a subpoena, there is no question but that

    10 Croatia has an obligation to comply. To our mind where

    11 the sanction or the compulsion or the obligation comes

    12 from, it is intrinsic to a binding obligation that there

    13 be some sanction. Whether or not that sanction issues

    14 from this Tribunal or, as several parties in the amici

    15 have suggested, from the Security Council, does not in

    16 any way diminish the force of the first conclusion,

    17 which is there is an obligation to comply.

    18 How would the Tribunal hold Croatia in contempt?

    19 Our position is that the Tribunal would make a

    20 declaration in effect of contempt. As Professor

    21 Condorelli has pointed out, under international law

    22 there is a notion of declaration of breach itself being

    23 a sanction. We have cited some later authorities in our

    24 own brief. We do not suggest that that would in all

    25 cases be sufficient, and in this case we do not expect

  83. 1 that it would be sufficient.

    2 Generally that remedy would be suitable when there

    3 is a situation that is over in which there are now no

    4 continuing consequences and the declaration may be in

    5 those circumstances regarded as sufficient. Here there

    6 is at least a strong prospect that the Tribunal will

    7 need to determine, that Croatia's continuing refusal to

    8 comply may impede an effective prosecution or a fair

    9 trial. In that situation, as we have suggested in our

    10 brief, the Tribunal may need to take recourse to the

    11 Security Council, but that is to say that the Tribunal

    12 could not make a declaration that Croatia has been in

    13 contempt, that is that it has failed to comply, and that

    14 it has therefore breached an international obligation as

    15 embodied in the Statute and Resolutions.

    16 JUDGE JAN: Would such a declaration be in the nature of a

    17 censure, which is one of the punishments that one can

    18 award for contempt of court?

    19 PROFESSOR DONOVAN: It would be. When your Honour says

    20 censure, do you mean more than declaration itself?

    21 JUDGE JAN: Would the declaration itself be a censure?

    22 PROFESSOR DONOVAN: It would be a censure and that would

    23 constitute a penalty or sanction or some penalty by the

    24 Tribunal. I want to emphasise, however, that the

    25 Lawyers Committee does not expect in the circumstances

  84. 1 presented here, given the Tribunal's need for evidence

    2 and testimony, that that would be sufficient for the

    3 circumstances here, but that is, of course, for the

    4 Tribunal to determine in its discretion after hearing

    5 the facts and circumstances.

    6 JUDGE McDONALD: But you do take the position that the

    7 Tribunal does have the power to issue a subpoena to a

    8 state and upon a proper -- affording the state an

    9 opportunity to be heard, that the Tribunal then could

    10 make a finding that the state is in contempt.

    11 PROFESSOR DONOVAN: That is correct.

    12 JUDGE McDONALD: Okay. Now with respect to the individual,

    13 you state on pages 14 through 15 of your brief that

    14 there are a range of remedies that the Tribunal might

    15 consider. First of all, you take the position that a

    16 subpoena may be addressed to a high governmental

    17 official, and then you said, if I am correct, that among

    18 other provisions, the Tribunal could find that the

    19 individual was in contempt of court. Before the

    20 Tribunal were to make such a finding, however, is it not

    21 necessary for the individual to be present before the

    22 Tribunal, that is we would enter an order to show cause

    23 typically to the individual, stating that he is to

    24 appear on a certain date and to show cause why he should

    25 not be held in contempt. If he did not appear, could

  85. 1 the Tribunal go forward with the hearing and find him in

    2 contempt, keeping in mind Article 21 of our Statute,

    3 that is correct, provides rights for the accused, and

    4 one of the rights is the right to be present at any

    5 trial. That is derived from the International Covenant

    6 on Civil and Political Rights. So if the individual was

    7 not present, would that not be a trial in absentia.

    8 PROFESSOR DONOVAN: No, it would not. We would distinguish

    9 between -- there has been discussion of sanction and

    10 penalty, but the sanction or the action that the

    11 Tribunal would take in this situation is not penal; it

    12 is coercive. It would be an attempt to gain compliance

    13 by continuing sanctions, that the recipient of the

    14 subpoena would always have in his or her power to

    15 alleviate simply by complying with the subpoena. So if

    16 the Tribunal were to issue an order that in effect would

    17 ask Croatia, because the Tribunal would be dependent on

    18 a state party to enter those sanctions, the holding the

    19 Tribunal would make with respect to compliance would be

    20 specific as to the facts before the Tribunal at that

    21 point.

    22 If, in fact, it is established that the recipient

    23 of the subpoena -- received the subpoena, neither

    24 complied with the subpoena nor appeared at a court or

    25 hearing to show why they did not comply with the

  86. 1 subpoena, that, it seems to me, would be sufficient to

    2 hold that that individual would be in contempt of the

    3 subpoena. What sanctions would then be imposed would,

    4 as I say, not be penal but coercive and would not run

    5 foul of this Tribunal's rules or general principles of

    6 due process or fair trial.

    7 JUDGE McDONALD: That would be like civil contempt and he

    8 would hold the key, as they say in my system at least;

    9 is that not so, but without imprisonment?

    10 PROFESSOR DONOVAN: Imprisonment might yet be one of the

    11 sanctions that may lead up. Presumably the Tribunal

    12 would attempt to measure its response to the degree of

    13 recalcitrance, but the Tribunal might reach a point

    14 where it asked that Croatia issued an arrest warrant,

    15 and ask that Croatia or any other state party cooperate

    16 by arresting the recalcitrant witness, but again it

    17 would be a contempt that the witness would always have

    18 the power to obviate by simply complying.

    19 JUDGE McDONALD: Then there would have to be a showing that

    20 the individual received the subpoena.

    21 PROFESSOR DONOVAN: There would need to be a showing, in

    22 fact, of contempt and the constituent elements of

    23 contempt, that, in fact, the individual had the

    24 authority to comply, knew of the obligation to comply

    25 and did not comply.

  87. 1 JUDGE McDONALD: And the obligation was specific and

    2 specifically stated and everything else. Suppose the

    3 state then refuses to execute our subpoena, we are back

    4 to square one?

    5 PROFESSOR DONOVAN: You would not necessarily be back to

    6 square one.

    7 JUDGE McDONALD: As it relates to the individual?

    8 PROFESSOR DONOVAN: In the end, particularly in this

    9 situation, the Tribunal would then have called upon the

    10 state to comply, and if the state did not cooperate, the

    11 state would itself be in breach, and you would be not

    12 necessarily at square one but you would be in the first

    13 situation where the state under a binding obligation to

    14 comply had not done so. You would then have a situation

    15 which would be a possibility here, in which the state

    16 did not comply and the individual did not comply, and

    17 the Tribunal would have recourse only to the remedies --

    18 to the remedies I have outlined with respect to the

    19 state. That would not in any way diminish the

    20 culpability or the position of the individual.

    21 JUDGE McDONALD: I do not have any additional questions,

    22 nor does Judge Odio-Benito or Judge Jan. Is there

    23 anything you wish to add? You can use some more time.

    24 PROFESSOR DONOVAN: I do not necessarily feel the need to

    25 use the time. We have set forward the position in our

  88. 1 brief. I would only note that the obligation of Croatia

    2 to comply is crystal clear. The importance to the

    3 effective prosecution in this Tribunal and the fair

    4 trial of the people that come before this Tribunal, it

    5 is critical that Croatia, given its position here -- it

    6 is particularly important that Croatia comply.

    7 JUDGE McDONALD: Thank you, Mr Donovan, for submitting your

    8 brief and thank you for appearing.

    9 PROFESSOR DONOVAN: I appreciate the Tribunal's courtesy.

    10 JUDGE McDONALD: We will now hear from the next amicus.

    11 Presentation by MR MALANCZUK

    12 JUDGE McDONALD: In your brief, Mr Malanczuk, you state

    13 that:

    14 "Neither the Statute nor Resolution 827 contains

    15 any language that orders are self-executing."

    16 You then note the report of the Secretary-General

    17 at paragraph 125 when he refers to Article 29 and states

    18 that the Tribunal, when making a request under Article

    19 29, would be making an application for an enforcement

    20 measure. Do you consider that the Secretary-General's

    21 report then empowered the Tribunal to enforce its

    22 remedies with respect to either an order or a subpoena,

    23 whatever it is denominating?

    24 MR MALANCZUK: No, I do not think so because the

    25 Secretary-General only has the power to make a report

  89. 1 and this report has to be adopted by the Security

    2 Council, and the Security Council alone has the

    3 authority to adopt binding measures in the sense of

    4 enforcement measures under Article 41 of chapter 7 of

    5 the United Nations' Charter, which is the source of your

    6 authority, with respect.

    7 JUDGE McDONALD: So the report then is contrary to

    8 Resolution 827?

    9 MR MALANCZUK: The report is earlier and 827 adopted new

    10 language, but not the same language.

    11 JUDGE McDONALD: Do you in your brief conclude that the

    12 Tribunal has no power to even find that there is

    13 non-compliance by state, or have I misunderstood your

    14 brief?

    15 MR MALANCZUK: I think then, with respect, you have

    16 misunderstood it. You have the power to issue directly

    17 binding orders to states, in my view, because they are

    18 under an obligation to comply under Security Council

    19 Resolution 827 and the Statute. This power gives you

    20 the authority to issue directly binding orders to

    21 states. It does not give you the power to issue any

    22 orders in the sense of imposing penalties, whether they

    23 are called subpoenas or anything else.

    24 The term "subpoena" comes from common law-based

    25 jurisdictions. It is not familiar in all other

  90. 1 jurisdictions, especially not in civil law

    2 jurisdictions, and it is also not clear whether in

    3 common law jurisdictions it always has the necessary

    4 automatic implications that it has penalties. Whatever

    5 it is, under international law it is not the meaning

    6 within one particular domestic jurisdiction that can be

    7 attached to a legal term on the international level, not

    8 on the sense of general principles of law of civilised

    9 nations in the sense of Article 38 of the Statute of the

    10 International Court of Justice.

    11 Therefore, one has to avoid the confusion which

    12 arises out of conforming legal terms or concepts out of

    13 one national legal system or a certain family of

    14 national legal systems to the international level, where

    15 the understanding of the addressees of orders which are

    16 issued are not the same. The addressee in this case is

    17 a sovereign state, the main and predominant actor on the

    18 international level.

    19 JUDGE ODIO BENITO: Thank you. Professor Malanczuk, on

    20 page 8 of your brief you state that it is only for the

    21 Security Council to determine whether or not a state has

    22 actually failed to comply. That means, Professor, that

    23 it is only for the Security Council, not for this

    24 Tribunal, to make a finding of compliance?

    25 MR MALANCZUK: I do not recall exactly which page you refer

  91. 1 to, your Honour, but I think --

    2 JUDGE ODIO BENITO: Page 8 in my copy.

    3 MR MALANCZUK: I think I connected it with the words "with

    4 respect to enforcement measures". That means, in my

    5 view, naturally from the obligation of states to comply

    6 following from the Security Council Resolution and the

    7 Statute of the court. Naturally the court can also find

    8 a state declaration that there has been non-compliance,

    9 but to enforce any decision of the court it would have

    10 to go to the Security Council.

    11 JUDGE ODIO BENITO: Thank you.

    12 JUDGE JAN: Ours is essentially a criminal court and every

    13 time there is non-compliance we have to go to the

    14 Security Council. Do you think the Tribunal can work in

    15 that fashion?

    16 MR MALANCZUK: Not practically, your Honour. I do not

    17 think so and I think this is one of your biggest

    18 problems. The difficulty is, legally speaking, not

    19 politically now, legally speaking, that you have not

    20 obtained any specific authorisation from the Security

    21 Council to overcome the sovereign equality principle,

    22 the principle of sovereign equality of states with

    23 regard to enforcement measures which the Security

    24 Council has itself only.

    25 It is a legal problem whether the Security Council

  92. 1 could delegate such functions to you, to a subsidiary

    2 body. Practically, it means you would be in a better

    3 position if you had something in the resolutions saying

    4 you had enforcement powers, but it is not the case.

    5 JUDGE JAN: But the very fact that it has constituted a

    6 Tribunal, it expects it to work effectively. Do you not

    7 think that it automatically flows from the fact that an

    8 effective institution has been created?

    9 MR MALANCZUK: Yes, within certain limits. The limits are

    10 the law and these limits are imposed by international

    11 law. International law, it is a decentralised system of

    12 sovereign statements which have joined in the United

    13 Nations' Charter for certain purposes and have given the

    14 authority to overcome what is normally required in their

    15 relations, namely consent to the Security Council for

    16 certain purposes. Only within those purposes can you

    17 exercise the inherent power of any court.

    18 JUDGE McDONALD: Are we not in a different situation,

    19 however, because when you speak of sovereignty, you

    20 certainly are referring to the power that states may

    21 have if they are appearing before a treaty-based

    22 judicial institution, where, of course, they have only

    23 given so many powers and those are then expressed in the

    24 treaty. We, however, are a judicial institution created

    25 by the Security Council acting under Chapter 7 powers,

  93. 1 which has primary authority to determine appropriate

    2 enforcement measures, and have not the states, the

    3 member states of the United Nations, waived, at least to

    4 a certain extent, their sovereignty by virtue of the UN

    5 Charter in chapter 7? They have waived, have they not,

    6 so is sovereignty a real question?

    7 MR MALANCZUK: Within the limits of the Charter. First,

    8 I would reply that the Security Council is not above the

    9 law. It has to act within the limits of the Charter.

    10 It has to act even in exercising its powers, which are

    11 immense, under Chapter 7, within the principles of

    12 general international law. For example, respecting

    13 international humanitarian law and peace-keeping

    14 operations or enforcement measures. The Security

    15 Council is not above the law. It has wide discretion.

    16 It is a political body but it is bound by the law. That

    17 is not only the Charter; that is also general

    18 international law and the principles.

    19 JUDGE McDONALD: When you say that it is a political body,

    20 then are you saying that when it issues an enforcement

    21 measure, that is a political decision?

    22 MR MALANCZUK: Yes, and we have a rather large controversy

    23 on this complicated issue of what the powers of the

    24 Security Council are after the end of the Cold War,

    25 since the veto is no longer an obstacle to

  94. 1 action-taking. This is a political legal question where

    2 research is being done on it.

    3 What are the actual limits of the Security

    4 Council's power? It is also clear that subsequent

    5 practice, the practice for the interpretation of the

    6 Charter, is very relevant. What I wanted to stress,

    7 however, is that the Charter itself is based upon the

    8 consent of states who are sovereign and equal in

    9 international law, and that is also the problem of this

    10 Tribunal, because the powers which the Security Council

    11 can delegate under enforcement measures, under

    12 Article 41, are limited by the UN Charter and general

    13 international law.

    14 The language of the Security Council Resolution

    15 827 states nothing more clearly than a direct obligation

    16 -- an obligation of all states -- of all states to

    17 cooperate with this Tribunal, and this is a binding

    18 obligation, and in connection with the Statute, this

    19 gives you the authority to issue directly binding orders

    20 to states, but not to government officials as far as

    21 they exercise their official function, and it gives you

    22 the power, in my view, to issue directly binding orders

    23 to individuals.

    24 The reason why you cannot issue it directly to

    25 government officials is that it is within the discretion

  95. 1 of the state to determine in which manner it complies

    2 with its international obligations, the obligation to

    3 cooperate with the Tribunal. This flows from the

    4 problem of internal sovereignty, internal

    5 self-determination, that each state can construe its own

    6 legal system, administrative system, in the manner it

    7 feels appropriate within the limits of international

    8 law.

    9 JUDGE McDONALD: Does the Security Council have authority

    10 to deal with internal organisations within states?

    11 MR MALANCZUK: We have no practice -- I am sorry.

    12 JUDGE McDONALD: For example, the declarations they have

    13 made regarding -- it varies -- internal organisations?

    14 I need not specify. Let me ask the question. Do they?

    15 MR MALANCZUK: The sanction measure, I would say we have

    16 practically only the Lockerbie case, Libya, where that

    17 is relevant, extradition issues. This is a matter again

    18 where we are on new grounds, because, as you know, your

    19 Honour, this case is pending before the International

    20 Court of Justice at the moment. An incidental question

    21 is: what are the powers of the Security Council?

    22 JUDGE McDONALD: Well, one of the amici makes reference in

    23 a footnote to a number of contacts that the Security

    24 Council has had to internal organisations within a

    25 state, and I do not have it handy and I do not

  96. 1 remember. I have a feeling that it may be

    2 Mr Zimmermann. Your discussion has raised a number of

    3 questions in my mind that I did not really anticipate.

    4 In your brief, as I recall, you state that the

    5 establishment of the Tribunal was "controversial". That

    6 is the word you used. I loved that.

    7 MR MALANCZUK: Yes.

    8 JUDGE McDONALD: Now are you saying -- in your opinion did

    9 the Security Council exceed its powers?

    10 MR MALANCZUK: I do not know. I have a PhD student working

    11 on it at the moment.

    12 JUDGE McDONALD: I think that maybe you have some thoughts

    13 about that.

    14 MR MALANCZUK: I have.

    15 JUDGE McDONALD: You also spoke, though, about the

    16 delegation of the authority by the Security Council to

    17 the Tribunal. Has the Security Council delegated to

    18 this Tribunal certain enforcement powers?

    19 MR MALANCZUK: No, I do not think it has. The enforcement

    20 power in the sense of Chapter 7 remains with the

    21 Security Council, because there is no language to the

    22 contrary in 827 or in the Statute. There is only

    23 language which indicates that in the rules, but that has

    24 to do with the internal functioning of the Tribunal.

    25 JUDGE McDONALD: And Article 29 and the Secretary-General's

  97. 1 report says it would be an application for an

    2 enforcement measure. I understand that preceded.

    3 MR MALANCZUK: Earlier that was not adopted, that

    4 language.

    5 JUDGE JAN: I am afraid if the view you have taken in your

    6 brief is accepted, this Tribunal will become an

    7 ineffective body, which was never the intention of the

    8 Security Council.

    9 MR MALANCZUK: No, I do not think it will become an

    10 ineffective body necessarily. If there is the required

    11 cooperation between the Tribunal and the Security

    12 Council and if the Security Council really wants to back

    13 up the Tribunal, it has the means at its disposal by

    14 clarifying the scope of action.

    15 Let me put it in political terms this time: what

    16 would happen if you would issue such a subpoena order,

    17 whatever it means, subpoena, whether penalties or not

    18 are attached to them -- let us say to the United States

    19 for information which the CIA has or to a French general

    20 on information? What would happen in that case?

    21 JUDGE JAN: That is exactly what we are trying to examine,

    22 what powers this Tribunal has in issuing subpoenas to

    23 the various state authorities or various states. That

    24 is exactly the question we are trying to examine.

    25 MR MALANCZUK: I can only answer that question from the

  98. 1 viewpoint of a student of international law. I am not

    2 here as your friend. I am your friend but I am not here

    3 --

    4 JUDGE JAN: I thought you were a friend.

    5 MR MALANCZUK: What I would do is respect the sovereignty

    6 of states with respect to their cooperation under the

    7 obligations they have under the Charter and under the

    8 Security Council Resolution, and make use of the

    9 mechanisms they put at your disposal to operate with

    10 their consent. Only if you have the feeling that this

    11 is being misused must you seek then either enlargement

    12 of your authority or clarification of your authority

    13 through the Security Council, and put the Security

    14 Council in a position where the members of the Council

    15 have to take a position on these issues.

    16 JUDGE McDONALD: I am going to answer your question for you

    17 when Judge Jan finishes.

    18 JUDGE JAN: The Statute very clearly states that all states

    19 shall assist the Tribunal, cooperate with the Tribunal.

    20 I do not think any state has made any reservations that

    21 they will not do it. By itself that is an acceptance of

    22 this Article.

    23 MR MALANCZUK: That is true.

    24 JUDGE JAN: You might call it surrender of sovereignty to

    25 that extent.

  99. 1 MR MALANCZUK: You see, you have already a problem. The

    2 first problem, -- in the case of Bosnia you have

    3 cooperation and consent, no problem. Now you have

    4 Croatia. You have no consent to the specific measure

    5 because the feeling of a state -- that will not only be

    6 Croatia which will react in this way -- the reaction to

    7 be submitted to something which implicates penalties is

    8 not acceptable. It is also not acceptable for another

    9 reason, as far as high government officials are

    10 involved, because it is up to the state to determine,

    11 under the law of state, responsibility how it fulfils

    12 its obligations as long as it complies. It must comply

    13 with the law. Your decision is binding but you cannot

    14 enforce it yourselves. You have neither the powers in

    15 law, and I submit to you, with all respect, also not in

    16 fact. That puts you in a problem.

    17 JUDGE McDONALD: Let me answer your question. You have

    18 already said that the Security Council is a political

    19 body and that its decision to establish the Tribunal as

    20 an enforcement measure was a political decision.

    21 MR MALANCZUK: Yes.

    22 JUDGE McDONALD: You have now asked the question: what

    23 would the Security Council do if it were asked to

    24 enforce a subpoena against the CIA in the United

    25 States? My guess would be, although I have told an

  100. 1 ambassador that I am not a diplomat, my guess would be

    2 that it would not happen, and it would not happen

    3 because the United States is a permanent member of the

    4 Security Council and it would veto it. Thus, the

    5 Security Council acts on the basis of political

    6 considerations. Yet in paragraph 28 of the report of

    7 the Secretary-General, and let us hope you agree with

    8 that portion of it, he says that the Tribunal is to

    9 exercise its judicial functions free of political

    10 considerations. So I suggest to you that you recognise

    11 the problem that perhaps Judge Jan is talking about, and

    12 that is, if I can find it -- it is paragraph 28 -- yes.

    13 It says:

    14 "In the particular case a Security Council will be

    15 establishing as an enforcement measure under Chapter 7 a

    16 subsidiary organ within the terms of Article 29 of the

    17 Statute, but one of a judicial nature. This organ

    18 would, of course, have to perform its functions

    19 independently of political considerations. It would not

    20 be subject to the authority or control of the Security

    21 Council with regard to the performance of its judicial

    22 functions."

    23 I think you are right, Professor. I think if we

    24 had to go to the Security Council to ask them to

    25 exercise their political judgment in the course of our

  101. 1 performing our judicial functions, they would say: "No."

    2 It seems to me that that is what paragraph 28 is talking

    3 about. You agree or no?

    4 MR MALANCZUK: Well, Secretary-Generals' reports are not

    5 binding legal documents. They are proposals and they

    6 are often drafted very quickly, because time is short.

    7 JUDGE McDONALD: That is true.

    8 MR MALANCZUK: I would not say it has been able to

    9 correctly foresee all the practical problems.

    10 JUDGE JAN: That is mainly a presumption that it is drafted

    11 hurriedly and without giving much thought to it.

    12 MR MALANCZUK: Yes.

    13 JUDGE McDONALD: Particularly if we are in the midst of a

    14 trial and we are now about to, or have, issued a

    15 subpoena to the CIA, we are then, I would suggest, if

    16 I understand your position -- we would be asked to call

    17 upon the Security Council to exercise a political

    18 judgment in the middle of a trial which we do not expect

    19 them to carry out, or they might. It is up to them.

    20 They are a political body.

    21 MR MALANCZUK: What do you do if Croatia or other states

    22 refuse to cooperate on that basis? They will be

    23 understood by other states like China or I could name a

    24 number of others. You will be confronted by a number of

    25 states in the international community which will

  102. 1 undermine your credibility as a Tribunal, because you do

    2 not have the power.

    3 JUDGE McDONALD: I understand that that is the position

    4 that you take. I do not have a position at this point,

    5 but I understand what you say. If we do not have the

    6 power and we exercise that power, then certainly that

    7 would undermine our credibility. That is the issue that

    8 we have to resolve, whether we have that power.

    9 MR MALANCZUK: Yes.

    10 JUDGE McDONALD: I thought in your brief, though, you did

    11 not consider that sovereign immunity was a problem but

    12 it was a problem of constitutional, as you put it,

    13 authority, but I do not -- I have not looked at it

    14 again. Did you take that position?

    15 MR MALANCZUK: No. My view is that it is not relevant to

    16 the issues you have put to me. Sovereign immunity only

    17 is a relevant problem if the relationship in states is

    18 on an equal level not on enforcement measures.

    19 JUDGE McDONALD: So that is not an issue as it relates to

    20 orders that this Tribunal would issue except if it

    21 called for a penalty that the Tribunal would seek to

    22 enforce.

    23 MR MALANCZUK: Exactly.

    24 JUDGE ODIO BENITO: Professor, I notice that in your paper

    25 you do not examine the Dayton Agreement?

  103. 1 MR MALANCZUK: Yes, you are right. I should have mentioned

    2 it. I mentioned it indirectly, because at the beginning

    3 I said the relevant sources are the United Nations'

    4 Charter, the Security Council Resolution and the

    5 relevant international treaty law. I was thinking of

    6 the Dayton Agreement, but I did not mention it later.

    7 Article 9, I think you mean.

    8 JUDGE McDONALD: Does that make a difference, the Dayton

    9 accords, with respect to the obligations of the parties

    10 to the Dayton accords, at least?

    11 MR MALANCZUK: It could have, but it did not. It could

    12 have if the language would have been clearer and placed

    13 clearer obligations which go beyond that which is

    14 already stated in Resolution 827. At any rate it has

    15 made the general obligation to cooperate with this

    16 Tribunal more specific for these states, but it does not

    17 solve your problem, because it is nothing in there which

    18 solves it.

    19 You would have to look more at issues such as the

    20 Croatian Implementation Act and see which authorities

    21 has been designated there. If I recall correctly, there

    22 is also an Article 2 or 3, which says that the

    23 governmental substructures are required to cooperate

    24 with the Tribunal in accordance with the appropriate

    25 Rules of Procedure of the Tribunal.

  104. 1 What does this "appropriate" mean? What I am

    2 saying is you have there already a basis -- I think that

    3 it is not in the discretion of Croatia or any other

    4 state to determine what is appropriate from its point of

    5 view, because that is within the power of the Tribunal,

    6 to determine what is appropriate, but it shows that

    7 Croatia has entered into specific obligations,

    8 implementing in its domestic law certain requirements to

    9 be able to comply without undue delay with the

    10 obligations imposed upon it by orders of the Tribunal.

    11 Maybe it is wise to seek a compromise on the level

    12 in making clear that this word "subpoena", which was

    13 introduced in 1995 in the Rules, I think, at a later

    14 stage, does not imply that the Tribunal is assuming

    15 penal, coercive powers vis-a-vis a state. If that is

    16 clarified, I think you have cooperation. If there is no

    17 effective cooperation, the only thing you can do is go

    18 to the Security Council anyway.

    19 JUDGE McDONALD: Thank you very much for your brief and

    20 thank you very much for coming.

    21 MR MALANCZUK: Thank you, your Honour.

    22 JUDGE McDONALD: When that article is completed, I would

    23 certainly like a copy of it. I am sure the Security

    24 Council would as well. Thank you very much, Professor.

    25 MR MALANCZUK: Thank you, ma'am.

  105. 1 JUDGE McDONALD: We will now hear from Mr Zimmermann.

    2 Presentation by MR ZIMMERMANN

    3 MR ZIMMERMANN: Thank you, your Honour.

    4 JUDGE McDONALD: Mr Zimmermann, you take the position in

    5 your brief, I believe, that the Tribunal may under

    6 Article 19 and 29 issue legally binding orders against a

    7 state, including orders for the production of documents,

    8 but that the Tribunal must report to the Security

    9 Council any non-compliance.

    10 MR ZIMMERMANN: May notify, yes.

    11 JUDGE McDONALD: Must notify.

    12 MR ZIMMERMANN: May notify it.

    13 JUDGE McDONALD: Of any non-compliance. You take the

    14 position that the Tribunal may issue legally binding

    15 orders to high governmental officials subject to the

    16 secret information, perhaps, exception and a specificity

    17 requirement.

    18 MR ZIMMERMANN: May not --

    19 JUDGE McDONALD: Or we may hold them in contempt.

    20 MR ZIMMERMANN: Under the position that the court may not

    21 circumvent the sanction power against the state by using

    22 the same sanction power against such a high-ranking

    23 official. That is our position.

    24 JUDGE McDONALD: Because that in essence would be an action

    25 against the state. Now, I wanted to ask you a question

  106. 1 regarding how you would suggest we would handle claims

    2 by a state that documents that had been requested

    3 contain national secrets. Should we treat such a claim

    4 perhaps more carefully and even more narrowly with

    5 respect to the state in the former Yugoslavia because

    6 they have been the recent subjects of a conflict, and

    7 perhaps a more broad interpretation might exacerbate the

    8 situation that has resulted in a recent peace agreement,

    9 if you understand?

    10 MR ZIMMERMANN: Yes.

    11 JUDGE McDONALD: Because you speak at length about how

    12 perhaps we can handle such a claim, and you referred to

    13 other international organisations. What do you suggest

    14 that we do?

    15 MR ZIMMERMANN: Now obviously what we would argue is that

    16 the question to what extent national secrets are

    17 guaranteed by the Tribunal depends on the factual

    18 situation of a given statement. If you are in a

    19 situation where there is an on-going military conflict,

    20 obviously there is a higher need, there is another need

    21 to protect military secrets, than if, let us say, you

    22 are in Switzerland, I would suppose. Obviously you have

    23 to take into consideration the concrete situation of the

    24 country under consideration, but that is just a factual

    25 issue obviously. It is not a legal issue. We would

  107. 1 argue, on the other hand, that, legally speaking, all

    2 member states of the United Nations are under the same

    3 legal obligations under Article 29 of the Statute of

    4 this Tribunal. You see my --

    5 JUDGE McDONALD: Yes. Are you saying then that if a claim

    6 is made with respect to national secrets, that is

    7 correct, that alone cannot -- should not prohibit the

    8 Tribunal from requesting those documents, and that

    9 instead the Tribunal should review the documents to make

    10 a determination as to whether they, in fact, are

    11 protected by such a privilege.

    12 MR ZIMMERMAN: No, your Honour. The pure claim by a state

    13 that certain items should be protected as national

    14 secrets would not be sufficient. There is obviously a

    15 need to substantiate that claim by document X, document

    16 Y, or the disclosure of such documents would indeed put

    17 into question or endanger national security.

    18 So there is a need, an obligation to substantiate,

    19 but the more a given state is substantiating a claim,

    20 the less should the court really ask for the divulgence

    21 of such evidence, but, if I may continue, we hold the

    22 view that by the end of the day there is a unilateral

    23 right of state to -- at least for core instruments

    24 dealing with national security -- there is a unilateral

    25 right of a state to withhold such information and even

  108. 1 in camera proceedings would not be sufficient to protect

    2 that legally protected interest of a given statement.

    3 We have indeed mentioned several cooperation laws of

    4 states not directly concerned with the conflict which

    5 have such provisions in their laws.

    6 JUDGE JAN: We are determining the criminal liability of an

    7 individual. We are essentially a criminal court.

    8 Supposing there is some document which has a bearing on

    9 his defence and if that document is produced he can earn

    10 his acquittal the state claims immunity, in those

    11 circumstances what should this Tribunal do?

    12 MR ZIMMERMANN: Well, then --

    13 JUDGE JAN: Unless the Tribunal has all the records before

    14 it, it cannot make a proper determination on the

    15 question of guilt or innocence of the accused.

    16 MR ZIMMERMANN: Then the Tribunal, the Chamber, would be in

    17 a position where it would not know what is in the

    18 document because they do not have access to the

    19 document. You can either not use it for or against the

    20 accused. It is not in the world for the Tribunal. It

    21 is not there.

    22 JUDGE JAN: It may be to the disadvantage of the accused.

    23 MR ZIMMERMANN: That might be true, but, you know --

    24 JUDGE JAN: It is a practical problem.

    25 MR ZIMMERMANN: Sure. One might consider, although I do

  109. 1 not have a firm point on that -- one might consider that

    2 you take the information that should be in there as

    3 granted in dubio porio. That might be considered. I am

    4 not saying that would be my view. I have not really

    5 thought about it, to be quite frank. Definitely you

    6 could not use it against the accused, I mean.

    7 JUDGE JAN: The accused wants to use the document.

    8 MR ZIMMERMANN: Right. Right.

    9 JUDGE JAN: The Tribunal has no access to it. What does

    10 the Tribunal do?

    11 MR ZIMMERMANN: You can only adjudge and declare on the

    12 proof of the evidence you have in your question.

    13 JUDGE JAN: That does not answer my question.

    14 JUDGE McDONALD: Does it call for at least an obligation on

    15 the part of the state to do more than establish some

    16 putative claim of military or national secrets and

    17 instead at least allow the Tribunal, given that this is

    18 a criminal court, the opportunity to review those in

    19 camera?

    20 MR ZIMMERMANN: Obviously that would very much depend on

    21 the specificity of the question, and we could, for

    22 example, think about a procedure where certain parts of

    23 a document would be eliminated or blackened or

    24 whatever. I am very cautious, because it very much

    25 depends on the specific issues and the specific document

  110. 1 and to what extent has a state been able to substantiate

    2 why a given document is really endangering its national

    3 security.

    4 If you look at the practice of national courts,

    5 they have been really quite cautious also to decide such

    6 issues in a very broad manner. They have been only

    7 focussing on specific cases. Therefore, I do not feel

    8 to be in a position to now make a statement without

    9 knowing what information are we talking about, how

    10 relevant is it for the case of the accused and so on and

    11 so forth.

    12 I mean, I do not, you know ... Again talking about

    13 in camera proceedings, we have to distinguish between

    14 either -- would it be for the Chamber plus the parties

    15 to take notice of such documents, or would it be only

    16 for the Chamber for itself without the prosecution and

    17 defence to take notice of such documents? That has to

    18 be also decided. That also would make a relevant

    19 distinction for the state concerned.

    20 JUDGE McDONALD: In camera pre-supposes that the

    21 prosecution would not be there. That is my

    22 understanding.

    23 MR ZIMMERMANN: Under the practice of the European

    24 Commission for Human Rights there are different in

    25 camera proceedings. There are some where just the public

  111. 1 is excluded, where only the parties are participating,

    2 and there are other in camera proceedings, which I would

    3 also call in camera proceedings, where only the

    4 Commission plus the witness is there, when you talk

    5 about witnesses. Obviously if just the Trial Chamber or

    6 the judge is there, it would be even more of a necessity

    7 for the state to claim why just the fact that the

    8 deciding judge has access to the document in itself

    9 already would endanger its national security.

    10 JUDGE McDONALD: The case that you cite by the

    11 inter-American court -- I do not remember the case -- it

    12 starts with a G.

    13 MR ZIMMERMANN: It was not cited by us. Unfortunately we

    14 have not really seen it. It was cited by the

    15 prosecution.

    16 JUDGE McDONALD: Okay. A case was cited where there was --

    17 where it was said that it was -- that the documents were

    18 considered in a closed session. That is not -- the

    19 point is that that is not what I mean by an in camera

    20 examination by a judge, not a closed session where you

    21 have witnesses present.

    22 MR ZIMMERMANN: Just coming back to the Gordenes case cited

    23 by the prosecution, there Honduras had just requested

    24 for an in camera proceeding. It had not rejected the

    25 idea as such to produce the document. That is not

  112. 1 correct. Therefore the issue before this Tribunal was

    2 not really coming up. It was just the question should

    3 it be heard in camera or in a public hearing. The

    4 question should it be produced or not was not disputed

    5 between the parties. That is quite important.

    6 Therefore, it is important to mention that.

    7 JUDGE McDONALD: In your brief I believe you say that the

    8 Tribunal cannot enforce orders unless specifically

    9 granted that power, and you refer on page 40 of your

    10 brief to the EC Treaty as having been amended to provide

    11 for the imposition of fines. Is that the same situation

    12 that this Tribunal is in? Once again we are not a

    13 treaty-based judicial institution, and I have asked that

    14 question to a number of the amici. Maybe you want to

    15 respond to it.

    16 MR ZIMMERMANN: Now what we would argue is that -- I mean,

    17 under the treaty founding the European Community, state

    18 members have at least transferred as much authority as

    19 they have under the Charter of the United Nations. Even

    20 under this highly integrated system of the European

    21 Community there was a need to formally amend the Treaty

    22 founding the communities in order to grant the court,

    23 the European Court of Justice, the power, such an

    24 enforcement power.

    25 Therefore we believe -- the question this morning

  113. 1 was put: what is in the Statute of this Tribunal to

    2 hinder the court, the Tribunal, to enforce its own

    3 judgments?

    4 With all due respect, your Honour, I think this is

    5 the wrong question. The question is: what is in the

    6 Statute to grant you the competence to enforce your own

    7 orders and judgments? That is a question I would put to

    8 you. Again I would like to mention that even under the

    9 EEC Treaty the court may not enforce orders for the

    10 production of evidence. It may only enforce prior final

    11 judgments. Therefore, argumentum ad fortiori, I really

    12 strongly believe this Tribunal is not in a position to

    13 enforce its own orders directed against states.

    14 JUDGE McDONALD: Does the Treaty provide that only final

    15 judgments may be enforced?

    16 MR ZIMMERMANN: Yes. That is the Treaty as amended in

    17 Article 171, paragraph 2, in -- again it was formally

    18 amended in 1993, because before it the court did not

    19 consider itself to be in a position to do that. The

    20 question is just: is there something in the Statute in

    21 Article 29 or wherever to grant you the same power, and

    22 quite frankly we do not see it.

    23 JUDGE McDONALD: Is there something in the Statute that

    24 requires that we report to the Security Council?

    25 MR ZIMMERMANN: There is no requirement that you notify the

  114. 1 Security Council, but you may. That is why I insisted

    2 on that you may. That is the only alternative you have,

    3 we would argue with all due respect, your Honour.

    4 JUDGE McDONALD: Is there something in the Statute that

    5 provides we may report to the Security Council?

    6 MR ZIMMERMANN: I think that was already elaborated upon by

    7 my learned colleague, Professor Malanczuk, that, given

    8 the fact that under Article 29 of the UN Charter you are

    9 a subsidiary or an office of the Security Council, you

    10 have to report to the Security Council. You are in a

    11 way "subject" to the authority of the Security Council.

    12 That gives you the power to notify the Security Council,

    13 as the creating body, if a state is not cooperating with

    14 the Tribunal. That is where you would derive the power

    15 and competence of this Tribunal to notify the Security

    16 Council accordingly.

    17 Obviously in order to notify you have to first

    18 determine for your own whether a state has not

    19 cooperated. It is implied. Therefore you can find that

    20 state X or state Y has not complied with a legally

    21 binding order. You would notify the Security Council

    22 accordingly and then it is for the Security Council.

    23 I understand that the Tribunal might be frustrated with

    24 the fact that the Security Council might not act or

    25 might act in a manner which is inappropriate, but

  115. 1 I think that is just where we stand under the system of

    2 the United Nations' Charter. Again the Security Council

    3 could have changed the whole system and the rules of the

    4 game, or it still could by granting you such enforcement

    5 power if it wanted to. The question of delegation and

    6 the limits of delegation could come up and that would be

    7 -- one would have to think about it again, but

    8 generally speaking, it could do so.

    9 JUDGE ODIO BENITO: Professor, if this Tribunal cannot get

    10 the whole evidence in one case, how could the accused

    11 get a fair and expeditious trial?

    12 MR ZIMMERMANN: That brings us back to the question put by

    13 Judge Jan. I really have not -- I admitted already

    14 I have not really thought about it, but you then do not

    15 have the evidence. You can only judge from the evidence

    16 you have, and from the evidence you have access to you

    17 find such an act was committed by the individual. That

    18 is where we stand.

    19 JUDGE JAN: That is exactly the question, whether the act

    20 was committed or not, unless you have the entire

    21 evidence before you.

    22 MR ZIMMERMANN: Sure. Again states are under an obligation

    23 to follow your orders. They are legally bound to do so.

    24 JUDGE JAN: Legally you say.

    25 MR ZIMMERMAN: Obviously legally bound. It can be enforced

  116. 1 by the Security Council. I strongly believe if the

    2 Security Council has the feeling that your work, you

    3 know, would be put completely in limbo by the lack of

    4 access to evidence, that the Security Council would take

    5 necessary action, and if it did not, it is the failure

    6 of the Security Council. Then the Security Council had

    7 implicitly just decided that it just did not want an

    8 effective court. It is the business of the Security

    9 Council. It is really -- I am very sorry to be so

    10 frank, but I think that is where we stand.

    11 JUDGE McDONALD: I do not want to be the bearer of this bad

    12 news, but you remember Mr Malanczuk's hypothesis --

    13 question, I suppose.

    14 MR ZIMMERMANN: I did not get it. I am sorry.

    15 JUDGE McDONALD: I wondered out loud whether the Security

    16 Council would enforce a request for documents to be

    17 provided from the CIA, and the Security Council acting

    18 as a political body acts on its considerations. It is a

    19 very fine body, but it is a different body.

    20 MR ZIMMERMANN: But, your Honour, talking about warrants of

    21 arrest, you also need the cooperation of the Security

    22 Council to enforce an warrant of arrest. It is exactly

    23 the same situation. Without the cooperation of the

    24 Security Council, you cannot, you know, get the

    25 accused. That is just, in another field, exactly the

  117. 1 same situation where you stand.

    2 JUDGE McDONALD: Not really, because General Blaskic has

    3 been in custody for 12 months.

    4 MR ZIMMERMANN: Not general procedure. I am talking about

    5 accuseds generally. There are, I think, 74 persons

    6 which should come before this Tribunal. Now, the

    7 Security Council has not taken -- well, there might be

    8 other alternatives for the Security Council to enforce

    9 certain obligations of states to follow up on warrants

    10 of arrests of this Tribunal. So I am just saying that

    11 you have to cope with that situation too.

    12 JUDGE McDONALD: We have to play the hand that is dealt

    13 us. That is what we would say in the United States, if

    14 we play poker, but we do not play poker. We have to

    15 play the hand. I understand what you say. Thank you

    16 very much. Your brief was very, very thorough on a

    17 number of points. I appreciate the brief and your being

    18 here and I appreciate your candour.

    19 MR ZIMMERMANN: Thank you, your Honour.

    20 JUDGE McDONALD: We have concluded with the amici.

    21 Mr Crawford and the Prosecutor, I appreciate your

    22 willingness to disrupt your argument. The amici spoke

    23 at length and perhaps some of the questions that we

    24 asked may have pre-empted your argument and Croatia's as

    25 well, but they are here and I thought we needed to hear

  118. 1 from them.

    2 Mr Crawford, would you proceed, please?

    3 Presentation by Professor Crawford

    4 PROFESSOR CRAWFORD: If it please the court, I was going to

    5 suggest we be disrupted a little longer and complete the

    6 discussion with the amici. It is entirely up to you.

    7 JUDGE McDONALD: I think they are available and will be

    8 tomorrow. Let us hear from you and Mr Hayman, and

    9 Croatia, Bosnia-Herzegovina and Miss Glumac. Then we

    10 will hear from the amici: let us hear from you.

    11 PROFESSOR CRAWFORD: You have referred to one of the

    12 amici's briefs which refers to the fact that the

    13 Security Council on occasions has singled out entities

    14 within a state for treatment. That list, which is a

    15 partial list, is contained at page 6, footnote 9, of

    16 Professor Condorelli's brief. It does demonstrate a

    17 more fundamental point, which is that the Security

    18 Council, acting under Chapter 7, is not bound by the

    19 principle of domestic jurisdiction, which has otherwise

    20 the stringent effects, or at least some of the stringent

    21 effects, which Professor Malanczuk attributed to it. The

    22 Security Council, acting under Chapter 7, is not bound

    23 by that principle, and can do whatever it judges to be

    24 necessary to maintain or restore international peace and

    25 security.

  119. 1 The Tribunal will have noticed amongst the amici a

    2 reluctance to take the literal language of the Statute

    3 to its conclusion, and that reluctance obviously has a

    4 founding partly in traditional views about sovereignty

    5 and partly in concerns, which are obviously very

    6 genuinely felt, as to the consequences for the Tribunal

    7 if it was to do such things as arrest Madeleine

    8 Allbright for failure to disclose the secrets of the

    9 State Department and so on.

    10 JUDGE McDONALD: I do not know why all of the examples have

    11 to relate to the United States. I am only one of three.

    12 PROFESSOR CRAWFORD: I apologise, your Honour. I was

    13 simply taking up examples that had been earlier taken.

    14 Perhaps we should say investigate the secrets of the

    15 Central Committee of the Chinese Government to see what

    16 they have to say about war crimes in the former

    17 Yugoslavia.

    18 Obviously in any of these enquiries there are

    19 serious considerations of policy as to how far powers

    20 are to be pressed, but the very first question is: what

    21 is the extent of the powers? What I want to address is

    22 the question of international law, which is the question

    23 for this Tribunal, as to how it is to interpret the

    24 powers it is given by the Security Council under the

    25 Statute, and what are the implications of those powers.

  120. 1 I want to address, and I will try to do so as

    2 briefly as possible, in the first instance the question

    3 of what is the underlying principle of interpretation

    4 that the Tribunal should adopt. I then want to look

    5 very carefully at the question of the characteristics of

    6 this Tribunal. What is its mandate under the relevant

    7 resolutions -- under the Statute, the validity, of

    8 course, which has been upheld and which this Tribunal

    9 can only accept?

    10 Having done that, I want to look specifically at

    11 the question of the so-called subpoena powers.

    12 I start out with the basic principle of

    13 interpretation. We are dealing with an organic

    14 instrument, the Charter of the United Nations, which

    15 confers very broad powers on the Security Council. The

    16 Security Council in turn in a series of resolutions has

    17 created this Tribunal and has declared its will that the

    18 Tribunal should effectively conduct criminal trials of

    19 individuals in relation to a particular situation

    20 determined to have been and in some respects to continue

    21 to be a threat to international peace and security.

    22 The basic principle of interpretation of the

    23 Statute which is contained in the Security Council

    24 Resolution is the principle of effectiveness. The

    25 Statute should be interpreted so as to be effective, so

  121. 1 as to achieve its aims. Despite the impression one

    2 might have gathered from Professor Malanczuk, that is

    3 not a heterodox or novel principle of international

    4 law. It was stated by the International Court very

    5 early on in its career of interpretation of the Charter

    6 in the reparations case, where the court said in

    7 relation to the United Nations itself:

    8 "It must be acknowledged that the members of the

    9 United Nations ..."

    10 This is, I should say, Volume 2 of the

    11 Prosecutor's authorities at tab 10, page 179. The

    12 International Court said in one of its most famous

    13 advisory opinions:

    14 "It must be acknowledged that the members of the

    15 United Nations, by entrusting certain functions to it,

    16 with the attendant duties and responsibilities, have

    17 clothed it with the competence required to enable those

    18 functions to be effectively discharged."

    19 It went on to hold that the United Nations has the

    20 power to do something not expressly provided for in the

    21 Charter, which was necessary as part of the discharge of

    22 its general functions. We would say that the same

    23 presumption applies in relation to this Tribunal as a

    24 subordinate organ of the Security Council created to

    25 perform a particular function. The members of the

  122. 1 United Nations, by authorising the Security Council to

    2 do various things, including the creation of this

    3 Tribunal, and the Security Council by, pursuant to that

    4 authorisation, entrusting certain functions to this

    5 Tribunal, with the attendant duties and

    6 responsibilities, must have clothed it with the

    7 competence required to enable those functions to be

    8 effectively discharged.

    9 Of course, that is not to say that the provisions

    10 of the Statute are to be interpreted ad libitum. It is

    11 not to say that the Tribunal is free to reach any

    12 conclusion whatever, but it is to say that the Tribunal

    13 must apply basic principles of the interpretation of the

    14 Charter and of instruments made pursuant to it in the

    15 way indeed which the International Court would do.

    16 We see the application of that principle in a

    17 context very similar to that of the present, with one

    18 important exception, to which I will return, in the

    19 United Nations Administrative Tribunal case, which is in

    20 the same volume of Prosecutor's authorities at tab 12.

    21 The question there was whether the General Assembly

    22 could create a subordinate judicial body with the

    23 authority to make binding decisions as between the

    24 United Nations and staff members on questions relating

    25 to the employment of members of staff.

  123. 1 Having concluded that under its Statute the United

    2 Nations Administrative Tribunal was authorised to act as

    3 a judicial body and not merely an advisory body, the

    4 next question for the International Court in that case

    5 was whether the decisions of the Tribunal were binding

    6 on the United Nations, that is binding on the General

    7 Assembly, so that the General Assembly had no legal

    8 alternative but to comply with the decisions. The

    9 Charter said nothing on that question. It had simply to

    10 be inferred from the structure of the Charter. The

    11 International Court said that -- this is at page 57:

    12 "The power to establish the Tribunal to do justice

    13 as between the organisation and the staff members was

    14 essential to ensure the efficient working of the

    15 secretariat, etc."

    16 JUDGE JAN: Are you referring to these volumes?

    17 PROFESSOR CRAWFORD: It is Prosecutor's Volume 2.

    18 JUDGE JAN: I cannot find the paging on here. There is no

    19 paging on here.

    20 PROFESSOR: CRAWFORD: The tabs do not appear on the

    21 side. They have to be divined. It is tab 12. You can

    22 only tell if you reach it. It is a bit like the suburbs

    23 of London. One only knows one is in them when one gets

    24 there.

    25 JUDGE McDONALD: Continue with the case and then I have a

  124. 1 question about it.

    2 PROFESSOR CRAWFORD: It is pages 57 and 58 of the UN

    3 Administrative Tribunal decision. The court said first

    4 that capacity to establish this Tribunal as an judicial

    5 body arises by necessary attainment, because it is

    6 necessary in order to enable the tasks afforded to --

    7 entrusted to the United Nations to be carried out, but

    8 this is the crucial point. It was then said: "Well,

    9 fine. You can establish a subordinate tribunal of a

    10 judicial character, but you cannot make its decisions

    11 binding on the United Nations. It would be sufficient

    12 to make them, as it were, advisory, but you cannot take

    13 the next step."

    14 The court then said in response to that argument

    15 on page 58 that whether to take the next step was a

    16 matter for the General Assembly. The Charter was not to

    17 be restrictively construed so only what was minimally

    18 necessary to achieve the aims was conferred. It was to

    19 be construed so as to grant the relevant political body

    20 the discretion to decide what was appropriate within the

    21 parameters laid down by the Charter itself.

    22 As the court said at the bottom of page 58:

    23 "The precise nature and scope of the measures by

    24 which the power of creating a Tribunal was to be

    25 exercised was a matter for determination by the General

  125. 1 Assembly alone."

    2 We would say the same thing was true in the

    3 context of the Security Council here.

    4 So that is the basic principle of interpretation.

    5 Your Honour, you said you had a question, and perhaps

    6 ...

    7 JUDGE McDONALD: Yes, I did. The question -- relating to

    8 this case, of course, they say that -- it is contended

    9 there is no need to go so far and that an implied power

    10 can only be exercised to the extent that the particular

    11 measure under consideration can be regarded as

    12 absolutely essential, and so was it not essential for

    13 this body to make binding decisions regarding claims of

    14 staff members?

    15 PROFESSOR CRAWFORD: Well, the court proceeded on the basis

    16 that you could have resolved that problem by something

    17 less than a decision binding on the General Assembly

    18 itself. Whether or not that was an appropriate judgment

    19 is a question, but the opinion proceeds on the basis

    20 that the need could have been met by a body which made

    21 decisions binding on the staff member and, as it were,

    22 strongly persuasive so far as the General Assembly was

    23 concerned, but not absolutely binding. This was in the

    24 context where the General Assembly was seeking to refuse

    25 to appropriate the money that would be necessary to

  126. 1 comply with an award.

    2 What the court said was not: "No, you are wrong in

    3 your judgment about what was necessary". It said: "No,

    4 the proper principle of interpretation is to interpret

    5 the Charter so that it gives a discretion on the

    6 question of appropriateness to the relevant political

    7 body". We are not to adopt narrow interpretations of

    8 what is necessary. Provided it is within the framework

    9 of the Charter and in conformity with its purposes and

    10 principles, then the power is to be treated as

    11 conferred.

    12 JUDGE McDONALD: Where does this necessity argument end? As

    13 we would say, is it a slippery slope? Is it really

    14 necessary and essential -- I think in your first

    15 argument you say "necessary or essential" and in your

    16 second argument you say it is "necessary and

    17 essential". Is it truly necessary and essential that

    18 the Tribunal be able to enforce its orders with respect

    19 to the production of documents?

    20 PROFESSOR CRAWFORD: Well, there are two different

    21 questions. There is the question whether the Security

    22 Council has the power to do something, and there is the

    23 question how it has exercised that power. The decisions

    24 that I have cited relate to the question of the exercise

    25 of power by the political body itself, which is not

  127. 1 constrained but is governed by the principle of

    2 effectiveness within the framework of the Charter. So

    3 you then have to look at the text, the actual Statute,,

    4 to see what is conferred, but there is no principle of

    5 limitative interpretation. There is no principle that

    6 less power is conferred, because, for example, it could

    7 not have been conferred, than was necessary to achieve

    8 the effective implementation of a particular measure, on

    9 the assumption, of course, that that measure is itself

    10 authorised by the Charter.

    11 In other words, if the Security Council creates a

    12 criminal trial body, which is going to conduct -- and

    13 this is the words of the Security Council Resolution --

    14 effective prosecution of particular crimes, then one can

    15 infer that all of the powers that are necessary in order

    16 to enable the effective prosecution of crimes have been

    17 given, subject to the proper interpretation of the

    18 Statute. Now, of course, there are some limitations,

    19 both limitations at the level of jurisdiction and, as we

    20 will say, limitations at the levels of appropriateness

    21 of exercise of the powers, but there is no limitation of

    22 restrictive interpretations.

    23 JUDGE McDONALD: One amicus suggests our powers should be

    24 narrowly constrained because the Security Council acted

    25 as an enforcement measure. I believe, and I do not

  128. 1 remember which one --

    2 PROFESSOR CRAWFORD: Professor Malanczuk, I think.

    3 JUDGE McDONALD: In any case, my question really is:

    4 considering this is the first time that the Security

    5 Council has created an ad hoc tribunal, relying on its

    6 powers under Chapter 7, it seems to me that perhaps an

    7 argument can be made that we should very carefully look

    8 at what was given the Tribunal, given the fact it is an

    9 extraordinary, perhaps, exercise of those powers -- if

    10 not extraordinary, at least this is the first time it

    11 has been exercised.

    12 PROFESSOR CRAWFORD: Unprecedented.

    13 JUDGE McDONALD: Unprecedented. That is the better way to

    14 look at it. If any case, if it is unprecedented, should

    15 we not be very careful to not exceed the powers that are

    16 given to us, and if in doubt as to whether we have the

    17 power, approach it from a very narrow and cautious

    18 approach, given the first time the Security Council has

    19 done this.

    20 PROFESSOR CRAWFORD: If something is to be done the first

    21 time, one might say it is best it is done effectively.

    22 The question in the end is: what do the words mean? The

    23 intention of the Security Council was to give this court

    24 an effective trial jurisdiction in respect of the crimes

    25 specified. As with all principles of interpretation,

  129. 1 there is a limit. There is a point beyond which it

    2 cannot be pressed. As my submissions develop, I will

    3 suggest some of those limitations, but there is no a

    4 priori principle of restrictive interpretation if that

    5 conflicts with the basic purpose that this Tribunal

    6 should be an effective trial mechanism.

    7 JUDGE McDONALD: Why do you consider that it was the

    8 intention of the Security Council to create a Tribunal

    9 that would be effective?

    10 PROFESSOR: CRAWFORD: Because of the word "effective" in

    11 the relevant Resolutions.

    12 JUDGE McDONALD: That is a good answer. Could it not have

    13 been more effective if we were given police power?

    14 PROFESSOR CRAWFORD: As I have already said, the point

    15 cannot be pressed beyond a certain limit. The question

    16 in the end is still: what do the words of the Statute

    17 mean? Perhaps I might turn to that?

    18 JUDGE McDONALD: Anyway, your position is that the ability

    19 to issue subpoenas that have penalties attached to them,

    20 at least so far as high governmental officials are

    21 concerned, is necessary and essential to the exercise of

    22 this Tribunal's judicial functions.

    23 PROFESSOR CRAWFORD: I did not yet say that, your Honour.

    24 If I can expand on my submission --

    25 JUDGE McDONALD: You have not got to that. That is in your

  130. 1 brief. In any case it is necessary and essential and --

    2 PROFESSOR CRAWFORD: All I have said so far is that one

    3 applies the principle of effectiveness against the

    4 background of the cases that I have mentioned in the

    5 interpretation of the actual language of the Statute.

    6 JUDGE McDONALD: Okay. I apologise. You can develop your

    7 argument.

    8 PROFESSOR CRAWFORD: Turning to the character of the

    9 Tribunal, this is of critical importance in the way in

    10 which its powers are to be exercised, and that applies

    11 in a number of ways. The first point to note, of

    12 course, and this is not disputed, that the Tribunal is

    13 an international tribunal. It is not a national court

    14 in any respect. It is a international body governed by

    15 international law. It is a very special and

    16 unprecedented sort of international tribunal in two

    17 respects. First of all, it is a criminal tribunal,

    18 which is entrusted with the task of determining the

    19 guilt or innocence of individuals in respect of the most

    20 serious crimes in the calendar. That already gives it a

    21 special character, as the Prosecutor has mentioned.

    22 The second point to note about the Tribunal, which

    23 is also unprecedented in the modern period, is that it

    24 has territorial jurisdiction. It has territorial

    25 jurisdiction under Article 8 of the statute. That

  131. 1 territorial jurisdiction is associated with primacy over

    2 national courts under Article 9, paragraph 2. So it is

    3 a very unusual creature.

    4 Its unusual character is associated with the

    5 requirement that it should conduct effective trials of

    6 individuals in respect of serious crimes. It is an

    7 international court with territorial jurisdiction over

    8 the whole territory of a former state and with primacy

    9 over the courts of that territory.

    10 It is true that it also has primacy over the

    11 courts of other territories, but it is the combination

    12 of territorial jurisdiction and primacy which is quite

    13 distinctive. It would be very odd if a criminal court

    14 required to conduct effective trials and which had both

    15 territorial jurisdiction and primacy in respect of the

    16 territory where the alleged crimes were said to have

    17 taken place lacked the power to give effect to its

    18 jurisdiction. So that reinforces the general

    19 presumption that the Tribunal will have been given the

    20 powers necessary to fulfil its functions.

    21 We would say that Article 8, dealing with

    22 territorial jurisdiction, must be given some meaning.

    23 One might have thought that it was not necessary,

    24 because the crimes in question are defined elsewhere,

    25 but territorial jurisdiction has been hitherto an

  132. 1 attribute of national courts exercising sovereign

    2 powers.

    3 One can say that the conferral of territorial

    4 jurisdiction implies that this Tribunal's powers will

    5 not be less than those that national courts might have,

    6 national courts which, of course, start out from the

    7 assumption of territorial jurisdiction.

    8 It is, of course, not the case that the Tribunal

    9 ceases to be an international tribunal by reason of its

    10 having those powers, but the combination of territorial

    11 jurisdiction and primacy must be given some effect. On

    12 the other hand, there is an important limitation, which

    13 is clearly intended in the Statute, and that is that the

    14 substantive trial jurisdiction of the Tribunal is

    15 limited to natural persons.

    16 In international law, states are recorded as

    17 persons but the Statute uses the phrase "person" in an

    18 entirely consistent way. Throughout, the term "person"

    19 means natural person. It does not mean corporation; it

    20 does not mean organisation. It does not mean government

    21 and it does not mean state. Under the Statute, and in

    22 this it is absolutely clear and in conformity with

    23 international law in relation to war crimes and crimes

    24 against humanity, the fact that the person on trial held

    25 or holds an official position is completely irrelevant.

  133. 1 That person is accountable for his or her acts

    2 irrespective of official position, irrespective of

    3 Article 2.

    4 JUDGE McDONALD: First, could you slow down, please? The

    5 interpreters have asked me twice and I know I speak very

    6 quickly also, but would you slow down?

    7 Your reference, though, to Article 6 and Article

    8 7.1 have to do with jurisdiction over persons who may

    9 have committed crimes that are the subject matter

    10 jurisdiction of the Tribunal, so that really has nothing

    11 to do with whether or not we have authority to issue

    12 subpoenas to individuals who are neither suspects nor

    13 indictees.

    14 PROFESSOR CRAWFORD: Your Honour, as the Appeals Chamber

    15 pointed out in the Tadic case, it may be necessary, when

    16 one is dealing with procedural, or ancillary matters by

    17 analogy, to look at the structure of the document as a

    18 whole. I am making the point that the Tribunal -- the

    19 Statute of the Tribunal draws its own distinction

    20 between the state and persons. Persons include

    21 officials, but the state as a legal entity is not a body

    22 on trial. It is not an entity to be subjected to

    23 criminal sanctions as such under the Statute.

    24 JUDGE McDONALD: But the reference there in Article 7.1 is

    25 merely to state that there is no protection immunity

  134. 1 from prosecution because of the fact that you hold that

    2 position, basically restating or reinforcing the

    3 Nuremburg Charter principle. That is all that --

    4 PROFESSOR CRAWFORD: Indeed, but it is important in the

    5 context of the Statute as a whole. The Statute in

    6 association with the Rules envisages in a number of

    7 contexts that where action is taken, or where a state

    8 fails to comply with its obligations, that the measures

    9 that will be taken take the form of reporting that

    10 failure to the Security Council. There are four rules,

    11 rules 11, 13, 59(B) and 61(E) which envisage that.

    12 It was a fair inference, looking at the Statute

    13 and the rules together, that the Statute does not

    14 envisage criminal sanctions directed at the state as

    15 such as a separate person. On the other hand, it is an

    16 equally fair inference that it may envisage criminal

    17 sanctions directed at persons who may be state officials

    18 or have been state officials.

    19 JUDGE McDONALD: The Statute certainly does not envisage

    20 that states will be tried for criminal offences. Again

    21 from the Nuremburg Charter we are applying individual

    22 criminal responsibility. Thus there is a need to make

    23 it very clear in Article 7.1 that that is the situation,

    24 and I understand you take the position that penalties

    25 cannot be imposed against the state.

  135. 1 PROFESSOR CRAWFORD: As such.

    2 JUDGE McDONALD: As such, but the authority to issue

    3 subpoenas and the authority, if authority exists, to

    4 exact penalties has nothing to do, I suppose, with the

    5 subject matter jurisdiction, except for one amicus that

    6 suggests there is a problem because of Rule 77 not

    7 speaking to contempt, except in two situations.

    8 PROFESSOR CRAWFORD: Well, Rule 77, of course, uses the

    9 word "persons" in exactly the same way as the rest of

    10 the Statute and Rules.

    11 JUDGE McDONALD: All I am saying is that the division that

    12 you make between state responsibility and individual

    13 responsibility I am not certain is transferable to the

    14 notion that states cannot be penalised for their

    15 non-compliance with orders issued by the Tribunal simply

    16 because they are not mentioned in Article 7 or Article

    17 6, because those Articles deal with whether or not

    18 persons may be the subject of criminal prosecutions.

    19 PROFESSOR CRAWFORD: The question is whether a power can be

    20 inferred -- and I said that the principle of

    21 effectiveness may have its limits -- the question is

    22 whether the power can be inferred without having been

    23 expressed from the Statute that this Tribunal can impose

    24 sanctions on the state as such in respect of its

    25 failures. What we say is that there is nothing in the

  136. 1 Statute and Rules which would lead one to draw that

    2 inference, and there are various things in it which

    3 would lead one to draw the contrary. That is as far as

    4 I would put it.

    5 JUDGE McDONALD: What leads us to draw the contrary is that

    6 we may not try states for commission of war crimes and

    7 crimes on humanity.

    8 PROFESSOR CRAWFORD: That is one indication, and also the

    9 four indications in the Rules that where states fail to

    10 comply with obligations, that this will be reported to

    11 the Security Council.

    12 JUDGE McDONALD: That argument does not help you.

    13 PROFESSOR CRAWFORD: Well, if the Tribunal had an inherent

    14 power itself to inflict penalties on those states, one

    15 might well have adopted your view that why should the

    16 Tribunal go running off to the Security Council? Why

    17 does the rule provide for access to the Security Council

    18 if the Tribunal can fix the matter itself?

    19 JUDGE McDONALD: Because in every Rule where there is a

    20 provision for non-compliance, all of the Rules speak to

    21 the Tribunal reporting to the Security Council.

    22 PROFESSOR CRAWFORD: Those particular Rules do, but, of

    23 course, Rule 77 refers to persons. Of course, the

    24 validity of Rule 77 is not directly in issue in these

    25 proceedings, because no invocation of that has yet been

  137. 1 made. What is in issue in these proceedings is the

    2 sovereign immunity of Croatia from a subpoena, which we

    3 take to be an order, an order of a compelling sort, but

    4 an order that it provide certain documents.

    5 Our position is that the Tribunal has the power to

    6 issue such an order. There is no sovereign immunity in

    7 respect of that order, and, further, that the Tribunal

    8 has the power to determine compliance with that order,

    9 but that in the event the order is made directly against

    10 the state as such, the Tribunal has no further inherent

    11 power to impose sanctions. The existence of Rule 77

    12 itself speaks against that, because it is an express

    13 power in respect of persons, and, as Professor

    14 Condorelli said, one would not infer a sanction power

    15 out of nothing. The mere use of the term "subpoena" in

    16 a rule is certainly not enough to incorporate common law

    17 rules about the inherent power of common law courts, in

    18 our submission.

    19 JUDGE McDONALD: If we did not have Rule 77, would you take

    20 that same position?

    21 PROFESSOR CRAWFORD: Well, the question is how far the

    22 inherent power of the Tribunal in respect of persons

    23 extends, and that is a difficult question. If the

    24 Tribunal accepts our view that a subpoena is in effect

    25 even in respect of a subpoena, is an order to a person

  138. 1 in effect to appear as a witness and speak to the

    2 existence and authenticity of documents, then the matter

    3 is covered under Rule 77 and the issue of inherent power

    4 does not arise, but I will leave my senior, the

    5 Prosecutor, to deal with that issue when she comes back

    6 to the question of enforcement.

    7 I am dealing with the basic question, which is

    8 whether the Tribunal has the power to issue an order to

    9 the state to provide documents, and our submission is

    10 that it clearly does under the Statute and that the

    11 rules in that respect merely reflect power already given

    12 by the Statute.

    13 Your Honour, I was drawing a distinction between

    14 the position of this Tribunal with respect to the former

    15 Yugoslavia and its position with respect to what I would

    16 describe as third states, states outside the former

    17 Yugoslavia. Of course, the relevant rules with respect

    18 to the gathering of evidence draw no distinction based

    19 upon the location of the state or the whereabouts of the

    20 state. They apply equally to all states, but there is

    21 an important difference in the incidence of those

    22 rules.

    23 The Tribunal is required by the Security Council

    24 Resolution establishing it and by its Statute to enquire

    25 into crimes committed in the context very largely of

  139. 1 state acts in the former Yugoslavia. It is required to

    2 go into the question who committed those acts. Under

    3 what authority is irrelevant. Who committed them? At

    4 what level is irrelevant. In that context one can well

    5 imagine that a court required to conduct an effective

    6 trial will have to enquire into the acts of individual

    7 officials in considerable detail. So that the occasion

    8 for the exercise of investigative powers given to the

    9 Tribunal is likely to be considerably greater, massively

    10 greater, in respect of entities within the former

    11 Yugoslavia than it is with respect to third states.

    12 As a practical matter, the Tribunal will rely

    13 heavily upon the cooperation of states inside and

    14 outside the former Yugoslavia, but, of course, it will

    15 be very specially reliant upon the cooperation of third

    16 states, who have no direct interest, and there will be

    17 no assumption that third states are doing anything else

    18 but seeking to cooperate with the Tribunal.

    19 What the position is with respect to the former

    20 Yugoslavia is an empirical matter and it will be a

    21 matter for the Tribunal itself to judge as the occasion

    22 requires, whether the mechanism of cooperation or the

    23 mechanism of, one might say, coercion; that is to say

    24 the mechanism of imposing a requirement is the

    25 appropriate mechanism.

  140. 1 In the question of third states it would

    2 overwhelmingly be the case that the method of

    3 cooperation will suffice. Of course, those third states

    4 are under an obligation to cooperate, but normally it

    5 will be sufficient to seek their cooperation and to rely

    6 upon their compliance with their international

    7 obligations.

    8 JUDGE McDONALD: I think you are perhaps more optimistic

    9 than circumstances have revealed themselves, because I

    10 am not certain how many states have enacted implementing

    11 legislation.

    12 PROFESSOR CRAWFORD: I think it is 19 at present.

    13 JUDGE McDONALD: I did not know it was as many as 19.

    14 I thought it was maybe 12. Certainly that does show

    15 that the world community is coming to recognise their

    16 responsibility. In your brief you have stated there is

    17 coercive authority over the states in former Yugoslavia,

    18 rather, that obligation is coercive and in other states

    19 it is mandatory.

    20 That is a legal word of art under international

    21 law, and again what is the basis for that position,

    22 because Croatia takes the position that that would

    23 violate principles of international law, to provide two

    24 different obligations for states under Chapter 7.

    25 PROFESSOR CRAWFORD: The obligations for states to comply

  141. 1 with requests and orders under Article 29 is the same

    2 for all states of the world. That is what Article 29

    3 says. What I am saying is the Prosecutor in seeking

    4 assistance and the court in issuing orders would, one

    5 assumes, take into account -- it will be a matter of

    6 judgment in each case -- whether it is appropriate to

    7 use the assistance mode or the mode of issuing orders.

    8 Professor Condorelli referred to that distinction as

    9 being merely statistical, although he acknowledged it

    10 existed. In three years of its operation, I am

    11 instructed, it has not been necessary for the Prosecutor

    12 to issue orders to third states on any occasion. It has

    13 all been done by the mechanism of request.

    14 JUDGE JAN: That may be the reason the other states have

    15 not passed any legislation. That may be the reason.

    16 PROFESSOR CRAWFORD: It may be and that will be a question

    17 for the developing experience of the Tribunal.

    18 Obviously there is some interplay here between the

    19 effectiveness of the Tribunal in particular cases in

    20 obtaining long-term cooperation. Those are questions of

    21 judgment. It is not suggested that the power is

    22 intrinsically any different but the occasions for its

    23 exercise may well be different in the light of the

    24 purposes of the Tribunal and the fact that this is a

    25 Chapter 7 measure directed at the territory of the

  142. 1 former Yugoslavia.

    2 JUDGE McDONALD: What did you mean by "coercive" versus

    3 "mandatory"?

    4 PROFESSOR CRAWFORD: That was a quotation from the

    5 Appellate Chamber's decision in the Tadic case. It is a

    6 question what the distinction between "coercive" and

    7 "mandatory" means.

    8 JUDGE McDONALD: We looked at that. I do not have the Tadic

    9 decision with me. I thought you had really quoted it

    10 out of context. I think we are going to stand in

    11 recess. We will stand in recess for 20 minutes. When

    12 we return, we will have looked at the Tadic decision,

    13 and we can talk about it.

    14 PROFESSOR CRAWFORD: Thank you, your Honour.

    15 (4.05 pm)

    16 (Short break)

    17 (4.25 pm)

    18 JUDGE McDONALD: Mr Crawford, "coercive" versus

    19 "mandatory", you are correct; the Appeals Chamber does

    20 use it. I think it is on page 15. I have lost my

    21 note. Is it on page 15?

    22 PROFESSOR CRAWFORD: It is paragraph 31.

    23 JUDGE McDONALD: What page is that?

    24 PROFESSOR CRAWFORD: It is page 15 of this document,

    25 paragraph 31.

  143. 1 JUDGE McDONALD: I was thinking when I first read it what

    2 they meant was that it was coercive in that the

    3 establishment of the Tribunal itself was for the purpose

    4 of bringing about an end to violations of -- serious

    5 violations of international humanitarian law but that

    6 the obligation was mandatory on others. The only reason

    7 I mention it is that Croatia has some concern about it

    8 but maybe we can hear from Croatia about it in that

    9 regard. It is not important.

    10 PROFESSOR CRAWFORD: Yes, your Honour, in which case I will

    11 move on.

    12 In some of the discussion the tendency has been to

    13 treat Article 29 of the Statute as concerned only with

    14 cooperation, but it is clear that Article 29 envisages

    15 both the obligation of states to comply with requests

    16 for assistance such as would be appropriate in the

    17 context of judicial cooperation, and also their

    18 obligation to comply with orders.

    19 THE INTERPRETER: Could the speaker please slow down?

    20 PROFESSOR CRAWFORD: The proposition that states are

    21 obliged to comply with orders carries with it the

    22 proposition that the order can be made to the state. It

    23 does not matter whether the source of the power to issue

    24 orders derives from Articles 19 and 20 or from Article

    25 29 itself. They have to be read together. So it is

  144. 1 clear from Article 29 that the Tribunal has the power to

    2 issue orders, as well as to make requests, in relation

    3 to the production of evidence. Those orders are

    4 binding, it is agreed by all.

    5 JUDGE JAN: It uses two expressions, "request" and "order".

    6 PROFESSOR CRAWFORD: Yes. A request, we submit, would be a

    7 request made in the normal course of events for judicial

    8 cooperation. That would be a request to a state or a

    9 state entity, or indeed it could be to someone else, but

    10 Article 29, paragraph 2, is addressing the obligation of

    11 the state to comply with such requests.

    12 JUDGE JAN: Does it say -- this paragraph mentions two

    13 words, request for assistance or order, this very

    14 paragraph.

    15 PROFESSOR CRAWFORD: Yes. What we say is that it follows

    16 clearly that the Trial Chamber has the competence to

    17 issue orders to states in respect of the production of

    18 evidence. It is only if it had that competence that the

    19 question of compliance with the order could arise.

    20 JUDGE JAN: It does not limit the nature of the order. The

    21 words "including but not limited to".

    22 PROFESSOR CRAWFORD: That is right.

    23 JUDGE JAN: This is a general sort of a power.

    24 PROFESSOR CRAWFORD: A general power. Of course the

    25 request or order has to relate to the functions of the

  145. 1 Tribunal and the Tribunal has its jurisprudence about

    2 the circumstances in which orders will be issued, but

    3 having been issued, states are obliged to comply with

    4 them.

    5 There is a distinction between the binding force

    6 of the order by virtue of Article 29 and the relevant

    7 Security Council Resolutions which expressly refer to

    8 Article 29 and the question how the order is to be

    9 enforced. The question of enforcement can only arise if

    10 the order is binding. It arises at a subsequent time.

    11 Croatia argues it is immune from the issue of the order

    12 by virtue of its status as a state, and that is

    13 contradicted by Article 29.

    14 The Security Council resolutions which, if

    15 necessary, make it clear, are, of course, Resolution 827

    16 itself and then Resolution 1037, paragraph 20.

    17 I turn to the question of the term "subpoena" as

    18 it appears in Rule 54. The term "subpoena" has already

    19 been defined by the Prosecutor, and I will not add to

    20 what has been said. Obviously what that means is not to

    21 be derived necessarily from any individual legal

    22 system. It is a question what the Statute and the Rules

    23 provide that it means. It is certainly not in some

    24 sense ultra vires the Tribunal to use the word

    25 "subpoena" meaning a binding order in respect of the

  146. 1 production of documents. It is a perfectly appropriate

    2 word to use. The fact that in a certain sense it

    3 reminds one of a particular legal system may or may not

    4 be unfortunate. How unfortunate it is tends to depend

    5 on how familiar one is with that legal system, but it is

    6 not ultra vires the Tribunal in its rule-making function

    7 under Article 15 to use the word "subpoena", by

    8 "subpoena" meaning an order in the nature of a

    9 requirement directed to a person to produce documents.

    10 That being so, the question is who may be the

    11 addressee of one of these orders called subpoenas?

    12 There is no limitation at all in Rule 54, nor is there

    13 any limitation on the addressees of orders in Articles

    14 19 and 20 of the Statute.

    15 Article 29, of course, is concerned with the

    16 obligation of states, and if individuals do not comply

    17 with orders, it will be through the mechanism of states

    18 ultimately that those orders will be enforced, but if

    19 states themselves are bound by orders, there is no

    20 reason to think that anyone other than states will be

    21 bound by them either -- will not be bound by them

    22 either.

    23 So persons can be subject to orders and so can

    24 states. The question is: in those circumstances what

    25 is the position of state officials? I stress that we

  147. 1 are talking about the binding character of the order.

    2 Now, it would be extraordinary if the Tribunal could

    3 issue orders to states but could not issue them to state

    4 officials. After all, those orders will at some point

    5 have to be complied with by persons acting ex officio.

    6 There may be circumstances in which it is appropriate or

    7 even necessary for the Tribunal to identify the person

    8 who will comply with its order.

    9 JUDGE JAN: In this context I refer you to Article 18,

    10 Subsection 2, where the Prosecutor can seek the

    11 assistance of state authorities, not the state.

    12 "Authorities" obviously means persons. So the Statute

    13 specifically empowers the Prosecutor at least to obtain

    14 the assistance of persons other than the state, state

    15 authorities, not the state.

    16 PROFESSOR CRAWFORD: Yes, sir. Professor Condorelli drew

    17 the inference, which we submit is correct, if the

    18 Prosecutor can do it by virtue of the power to seek

    19 assistance --

    20 JUDGE JAN: From authorities.

    21 PROFESSOR CRAWFORD: Yes, from authorities, that the

    22 Tribunal itself would have the same power by way of

    23 issuing orders which are necessary for the conduct of

    24 the trial, for example, under Article 20, paragraph 1.

    25 There is no limitation on the persons to whom those

  148. 1 orders may be made. If they are necessary for the

    2 conduct of the trial, they may be made to state

    3 officials.

    4 Again, we would submit the distinction that I have

    5 mentioned between the states within the former

    6 Yugoslavia and third states does arise. It may well be

    7 appropriate in the case of third states in the mode of

    8 judicial cooperation either to use a designated

    9 authority of that state or simply to address the request

    10 to the state as such and leave the state to determine

    11 how to comply.

    12 That may also be appropriate in the context of

    13 states within the former Yugoslavia, but the Tribunal

    14 has a choice. If it is necessary for the due conduct of

    15 the trial to go further than that and to go to

    16 particular authorities or particular named individuals

    17 and to seek -- and to order them to provide documents,

    18 there is nothing in the Statute which deprives the

    19 Tribunal of that power. It is certainly necessary for

    20 the due exercise of its functions, and there is nothing

    21 which precludes the Tribunal from exercising that power

    22 at the level of the making of the order.

    23 JUDGE McDONALD: The source once again of the power of the

    24 Tribunal to issue subpoenas to individuals is what, you

    25 tell me? I know you have said Article 6 and Article 7.1

  149. 1 but you might look at 18.2.

    2 PROFESSOR CRAWFORD: No. I was using Articles 6 and 7 in

    3 the context of a broader enquiry as to the scope of the

    4 Tribunal's coercive powers with respect to states as

    5 against individuals. I am now addressing the separate

    6 question: what is the scope of the Tribunal's ancillary

    7 power to issue orders with respect to evidence? That

    8 power, in our submission, looking at the power of the

    9 Tribunal, is actually contained in Articles 19.2 and

    10 Article 20, paragraph 1 of the Statute and is confirmed

    11 and elaborated -- well confirmed it cannot be -- is

    12 elaborated in Rule 54. Article 29 is really concerned

    13 with the correlative question of the obligation of

    14 states once those Articles have been issued.

    15 Article 29, both paragraphs start with the words

    16 "States shall ..." do something. It is therefore

    17 addressed to the question what states should do when

    18 they are confronted with these orders, but, of course,

    19 it is relevant to the interpretation of the general

    20 powers that the Tribunal has under Article 19.2 from the

    21 time of the confirmation of the indictment, and Article

    22 20, paragraph 1 in respect of a Trial Chamber to issue

    23 orders which are necessary for the conduct of a trial.

    24 There is no limitation on the addressees of those

    25 orders. They could be persons or they could be state

  150. 1 officials or they could be states.

    2 I suppose that if the only provisions of the

    3 Statute were Articles 19 and 20, you might say, applying

    4 reasoning such as Professor Malanczuk has advocated,

    5 that there is no express authority to issue orders to

    6 states, but that issue is completely precluded once you

    7 read Article 29. It is perfectly clear from Article 29

    8 that orders can be issued to states.

    9 The source of the power to do so we say derives

    10 from Articles 19 and 20, on condition that the orders

    11 are necessary for the conduct of the trial, and the

    12 source of the obligation of states to comply with the

    13 orders is Article 29.

    14 That being so, there is no reason to infer any

    15 limitation with respect to the addressees of orders so

    16 far as state officials are concerned. Since orders can

    17 be directed to the state, they can equally be directed

    18 to officials of the state, and they can equally be

    19 directed to persons who are not officials at all. It is

    20 simply a question whether the particular order is

    21 necessary.

    22 As I was saying, in normal circumstances the

    23 Tribunal in the case of third states will not go behind

    24 the state, will simply address the state or a designated

    25 person for the purposes of cooperation and leave it at

  151. 1 that, but if it is actually necessary in order to

    2 conduct a fair trial to go further, the Tribunal is

    3 empowered to do so. It has to exercise that discretion,

    4 and it will no doubt do so carefully, having regard to

    5 the sensitivities that undoubtedly exist, and which some

    6 of my professorial brethren have manifested in some of

    7 their submissions, but the power exists, because the

    8 overriding purpose of the Tribunal is to conduct a fair

    9 trial in respect of these serious crimes.

    10 Can I just say briefly in the context of state

    11 officials that the distinction that Professor Pellet

    12 sought to draw between officials acting in their public

    13 capacity and in their private capacity is not merely

    14 untenable but would cause a high degree of schizophrenia

    15 amongst the officials concerned. It seemed, as far as

    16 I could understand it, that the officials could be

    17 subpoenaed, as it were, in their personal capacity but

    18 not in their public capacity!

    19 I am not sure whether Professor Pellet was saying

    20 what they learned in their bathrooms they could disclose

    21 but not what they learned in their studies, and that in

    22 their professional capacity they were not allowed to

    23 disclose to themselves what they knew in their personal

    24 capacity. In real life we know things. We do not know

    25 them in capacities. However much distinction that

  152. 1 validity might have in other contexts, since the

    2 Tribunal can issue orders to states, it can also issue

    3 orders to state officials. There is no third category

    4 of state officials as compared to states and persons and

    5 the Tribunal, having power over state and persons, has

    6 power over state officials as well. The exercise of

    7 those powers is a different matter and the Tribunal no

    8 doubt will exercise due caution. It has to be

    9 necessary, but that is a separate issue.

    10 Can I turn briefly to two remaining questions?

    11 The first is the question of so-called sovereign

    12 immunity. The second is the question of the status of

    13 national cooperation laws such as the law that Croatia

    14 has enacted and relies on as the exclusive channel of

    15 communication so far as the Tribunal is concerned.

    16 Dealing with the issue of sovereign immunity, we

    17 submit that sovereign immunity has nothing to do with

    18 this case. Sovereign immunity in international law is a

    19 doctrine applicable to national courts, to the courts of

    20 a particular state hearing cases involving foreign

    21 states. This is an international court and the doctrine

    22 of state immunity has no application. In international

    23 courts states are protected by the ordinary documents of

    24 consent to jurisdiction and so on, but this Tribunal

    25 having been validly established under the United

  153. 1 Nations' Charter, to which all relevant states are

    2 parties, the issue of consent does not arise.

    3 There is no separate doctrine of immunity with

    4 respect to the proceedings of an international tribunal

    5 having jurisdiction in a given case and having the

    6 authority to issue orders to states generally. There is

    7 no, as it were, ghost in the machine which can then

    8 emerge and provide a degree of unspecified and

    9 unwarranted protection.

    10 Of course, the interests of states confronted with

    11 request is another matter, and the Prosecutor will

    12 return to that question in the context of the protection

    13 of confidentiality. No doubt the interests represented

    14 by the doctrine of sovereignty may be relevant at some

    15 stage in assessing whether it is really necessary to

    16 issue an order, or whether it is appropriate to use the

    17 cooperation, the means of cooperation rather than the

    18 means of issuing an order, but those are questions

    19 within the discretion of the Tribunal. They do not

    20 limit its power.

    21 JUDGE McDONALD: Is there any penalty we could impose on a

    22 state if there is no sovereign immunity vis a vis this

    23 Tribunal because it is an enforcement measure?

    24 PROFESSOR CRAWFORD: Well, the problem with respect to the

    25 state itself, and the Prosecutor will return to this

  154. 1 issue -- the problem with respect to the state itself as

    2 distinct from its officials is that first of all there

    3 is no equivalent of Rule 77 which applies to the state.

    4 I mentioned earlier that the Statute and rules use the

    5 language of "person" in a completely consistent way and

    6 it is quite clear that Rule 77 has no application to the

    7 state as such.

    8 JUDGE McDONALD: And Rule 77 has no application to holding

    9 persons in contempt for failure to comply with

    10 subpoenas.

    11 PROFESSOR CRAWFORD: Well, that is a question which my

    12 leader will take up.

    13 JUDGE McDONALD: Okay.

    14 PROFESSOR CRAWFORD: Because in our view a subpoena is an

    15 order to someone to appear as a witness in order to

    16 testify as to the existence or genuineness of documents,

    17 but in any event I will leave that to my leader.

    18 JUDGE McDONALD: So there is no Rule 77.

    19 PROFESSOR CRAWFORD: There is no Rule 77 and for the

    20 reasons I have already given there is no inherent power

    21 in the Tribunal, and certainly not by reason of the mere

    22 use of the word "subpoena" to inflict unspecified

    23 penalties on states as such, but I would incorporate

    24 what the Tribunal's friend and my friend, Professor

    25 Condorelli, said in respect of the idea of penalty. It

  155. 1 may well be that the report of a particular state as

    2 non-complying, and of course the Tribunal has certainly

    3 inherent authority to determine compliance -- we would

    4 go further and say that the Tribunal's determination of

    5 non-compliance is binding, so that the Tribunal

    6 determines in the same way that the decisions of the UN

    7 Administrative Tribunal were binding on the Security

    8 Council.

    9 So the Tribunal determines there has been

    10 non-compliance and reports that to the Security

    11 Council. It is then -- this may be regrettable -- but

    12 it seems to us to follow from the present structure of

    13 the Statute and Rules -- it is then a matter for the

    14 Security Council to decide what to do, but the mere

    15 judicial determination with authoritative binding effect

    16 of this Tribunal that there has been a breach of a

    17 subpoena is itself a significant event.

    18 Now, it may well be that the Tribunal could give

    19 consideration to a Rule 77 bis. That might raise issues

    20 of validity, but they do not arise in this case. The

    21 issue in this case is whether the order can be issued to

    22 Croatia and whether Croatia has immunity has immunity

    23 and the answer is clearly "no".

    24 JUDGE McDONALD: Where is the inherent power inherent in the

    25 Statute to issue a penalty to an individual. I

  156. 1 understand we have Rule 77 and perhaps there is an

    2 authority in terms of persons who appear before the

    3 Tribunal, an inherent authority that any court has, but

    4 for individuals who fail no comply with subpoenas, where

    5 is the inherent authority in the Statute?

    6 PROFESSOR CRAWFORD: Article 15 gives the Tribunal the

    7 power to make rules in respect of evidence and

    8 procedure.

    9 JUDGE McDONALD: But the rules cannot go beyond obviously

    10 the constituent --

    11 PROFESSOR CRAWFORD: The question of the validity of Rule 77

    12 would raise the question whether Rule 15 authorised the

    13 enactment of Rule 77 in light of the Statute as a whole

    14 and its requirement that the Tribunal conduct effective

    15 trials. Effective criminal trials require some coercive

    16 power.

    17 JUDGE McDONALD: To whomever is the subject of a subpoena?

    18 PROFESSOR CRAWFORD: Yes. Well, with the exception that in

    19 other respects the structure of the Statute and Rules

    20 does draw a distinction between states and persons.

    21 JUDGE McDONALD: Again, where is the inherent power in the

    22 Statute to assess penalties against individuals?

    23 I understand Rule 15 and we have enacted 77 but maybe we

    24 are wrong.

    25 PROFESSOR CRAWFORD: Well, that is a matter for another

  157. 1 case in the event you do enact penalties and they are

    2 challenged. We were certainly not in any sense seeking

    3 to question the validity of Rule 77, but Rule 77 is an

    4 expressly enacted rule. There is no equivalent rule

    5 enacted with respect to states, and at the very least if

    6 the Tribunal wishes to establish a mechanism which does

    7 not exist in the international system of the imposition

    8 of penalties on states, one would expect to find

    9 provisions -- procedural provisions and so on dealing

    10 with that.

    11 JUDGE McDONALD: So there is no expression in the statute

    12 of any inherent authority to assess penalties against

    13 individuals but we have done that in Rule 77.

    14 PROFESSOR CRAWFORD: Well, in any situation you have to ask

    15 whether the particular rule is necessary for the

    16 effective furtherance of the purposes of the Tribunal

    17 having regard to the principle of interpretation which

    18 I have outlined. If necessary, we would submit that

    19 Rule 77 is a valid exercise of the rule-making power,

    20 because, in order to conduct an effective criminal

    21 trial, the Tribunal needs a certain level of coercive

    22 authority with respect to witnesses and so on.

    23 JUDGE McDONALD: Okay. So there is no specific mention in

    24 the Statute of inherent authority, but it is the

    25 inherent authority that all courts have with respect to

  158. 1 individuals.

    2 PROFESSOR CRAWFORD: We would say that is correct, but we

    3 would say that presumption which arises from the

    4 principle of effectiveness as I have articulated it is

    5 qualified with respect to states, both by the limits on

    6 the jurisdiction of the Tribunal expressed in the

    7 Statute and also the approach which the Tribunal itself

    8 took in the context of the rules to what it should do in

    9 the case of state non-compliance on four --

    10 JUDGE McDONALD: That is true except that in limits of our

    11 jurisdiction that refers to subject matter jurisdiction,

    12 and the rules that you referred to, 11, 59 and 61, deal

    13 with pre-initial appearance.

    14 PROFESSOR CRAWFORD: Yes, they do. That is true.

    15 JUDGE McDONALD: The Tribunal at that point has not began

    16 their machinery of exercising their judicial functions.

    17 I think I understand you. We have at least taken a

    18 position in Rule 77 that we have that power and have not

    19 done so.

    20 PROFESSOR CRAWFORD: In relation to individuals.

    21 JUDGE McDONALD: With respect to individuals and have not

    22 done so. One amicus states that there was no criticism

    23 of Rule 77. I cannot believe that but I accept what he

    24 says, maybe because there has been so much criticism of

    25 everything.

  159. 1 PROFESSOR CRAWFORD: It remains to be seen whether there

    2 will be criticism of it. We do not say that it is not

    3 necessary and on the contrary there is a very good

    4 argument it is necessary. It is not at question in this

    5 case. The question is whether the Tribunal can issue an

    6 order to a state or state official and the answer is

    7 plainly "yes".

    8 JUDGE JAN: Rule 77 is very specific about the persons who

    9 can be committed for contempt. It would not in terms

    10 apply to a person not complying with the subpoena in

    11 this. It talks about a person who contumaciously

    12 refuses to answer a question or interrogates a witness.

    13 It is much more specific.

    14 PROFESSOR CRAWFORD: It may be that procedurally -- I do not

    15 want to trespass on what my learned senior will say --

    16 it may be that procedurally where there is

    17 non-compliance with the subpoena there need to be

    18 further steps before Rule 77 comes into operation. That

    19 is a procedural matter.

    20 JUDGE JAN: We have to rely on our inherent power as a

    21 court.

    22 PROFESSOR CRAWFORD: It is always a question of judgment

    23 how far the inherent power goes. We have simply

    24 submitted there are contraindications, that it goes so

    25 far as to impose penalties on the state as such as there

  160. 1 are very considerable procedural difficulties on

    2 imposing sanctions on the state qua state, in terms of

    3 who is the entity to appear and so on. You only have to

    4 look at the experience of national jurisdictions dealing

    5 with states who are usually as such immune from any form

    6 of sanction even in respect of non-compliance with

    7 binding orders. Even in the context of corporate

    8 criminal liability, a fortiori the state, we would

    9 simply say the that as a matter of judgment the

    10 presumption of effectiveness in respect of the Tribunal

    11 the Statute does not go that far.

    12 Can I deal just finally with the issue of the law

    13 on cooperation? Clearly where a state enacts a law on

    14 cooperation, whether the state is within the former

    15 Yugoslavia or not, that provides a modality for

    16 cooperation with the state, and it would, assuming that

    17 the circumstances indicate that cooperation will be

    18 forthcoming -- it would usually be the mechanism which

    19 was used but a state cannot limit its international

    20 obligations by its national law; that is perfectly

    21 clear. Therefore, a state cannot provide that the only

    22 mechanism that shall be used is a law on cooperation.

    23 Article 29 imposes an international obligation on

    24 the state with which it must comply in terms determined

    25 by the Tribunal and not another statement.

  161. 1 That completes my submissions, if it please the

    2 court, although I would be happy to answer any further

    3 questions.

    4 JUDGE McDONALD: Thank you, Mr Crawford. The Prosecutor?

    5 Presentation by Justice Arbour

    6 JUSTICE ARBOUR: Thank you very much, your Honour. I have

    7 essentially two remaining points to address and I will

    8 be very brief. The first one is the question of how

    9 does the current statutory framework, that is the

    10 Statute and the Rules, offer adequate protection to

    11 legitimate state interest in protecting matters of

    12 national security, executive privilege or any other form

    13 of validly recognised grounds for confidentiality?

    14 In my submission once again we find in this rather

    15 terse Statute of 34 Articles and in these Rules that are

    16 also not very extensive a perfectly adequate framework

    17 to answer that question within the context of a criminal

    18 system that fully recognises the compellability of all

    19 states and individuals for the production of evidence.

    20 Starting, first, with the Statute, Article 20 that

    21 I have referred to before imposes a duty on the Trial

    22 Chamber to conduct a fair and expeditious trial

    23 according to the rules, and Article 15 then grants the

    24 power to make the rules.

    25 Now if I may turn to Rule -- I have them here --

  162. 1 to Rules 89 and 95, and I will start, if I may, with

    2 Rule 95. That Rule is a very broad and generous

    3 exclusionary Rule, which provides that:

    4 "No evidence shall be admissible if attained by

    5 methods which cast substantial doubt on its reliability

    6 or if its admission is antithetical to and would

    7 seriously damage the integrity of the proceedings."

    8 Rule 89 is also a rule of exclusion of evidence and in

    9 particular subsection (d) provides that:

    10 "A Chamber may exclude evidence if its probative

    11 value is substantially outweighed by the need to ensure

    12 a fair trial."

    13 In my submission, fairness of the trial is a

    14 concept broad enough in any jurisdiction which rests on

    15 the rule of law to encompass fairness to all

    16 participants, not only to the Prosecution and to the

    17 accused, but to witnesses. These rules of exclusions

    18 are broad enough even in a context which has other

    19 specific exclusionary rules to provide a discretion in

    20 the court, for instance, to balance the probative value

    21 of a piece of evidence that is tendered by a party

    22 against, for instance, important concerns of privacy of

    23 the witness, and in exercising its discretion a Trial

    24 Chamber would very readily, in my submission, under

    25 these two rules, come to the conclusion that they are

  163. 1 interests that can be adequately protected in the

    2 context of a fair trial by excluding relevant evidence,

    3 weighing that against its probative value, its

    4 materiality, in a context, of course, where this

    5 evidence is properly compelled. Compellability of

    6 evidence, I think, ought not to be confused with its

    7 ultimate admissibility.

    8 Within that framework it is my submission that any

    9 valid national security interest can very readily be

    10 accommodated by this Tribunal under these broad

    11 exclusionary powers. This is very early in the

    12 jurisprudence of the Tribunal, so we do not have a lot

    13 of guidance from decisions, but as has been mentioned

    14 before, these questions of privilege or exception,

    15 claims of national security or state secret, are

    16 extraordinarily fact-sensitive. It requires a

    17 balancing, which, on the one hand, necessitates an

    18 appreciation of the relevance and the probative value of

    19 the evidence that is sought to be tendered and, on the

    20 other hand, of the cogency and the potency of the claim

    21 that it ought to be excluded to protect a legitimate

    22 state interest.

    23 Now this, of course, comes after that there has

    24 been a full scrutiny of whether the evidence that is

    25 being sought is relevant, is material, is sufficiently

  164. 1 targeted and clearly identified. All these objections,

    2 of course, can be made by the recipient of the subpoena,

    3 who, compelled as he may be, is entitled to challenge

    4 the breadth of the subpaenas, the scope of it, the

    5 relevancy of the evidence that is being sought, and it

    6 is in that form, in my submission, that the recipient of

    7 the subpoena has ample room to assert before this

    8 Tribunal an interest that the Tribunal can very well

    9 balance against the interests of the party seeking to

    10 produce that evidence.

    11 So, in my submission, we do not even have to go to

    12 a more elaborate statutory scheme, even though one of

    13 the briefs of the amicus suggests that it might be

    14 desirable for the Tribunal to enact a much more specific

    15 regulatory scheme to protect these kinds of interests.

    16 The sole privilege or exception, if we may want to

    17 call it this way, which is specifically provided for in

    18 the Rule is the solicitor-client privilege, but in my

    19 submission this does not preclude the court from

    20 exercising it's discretion under the rules that it ought

    21 to conduct a fair hearing to protect other interests

    22 that belong to witnesses who have to be called upon to

    23 be participants in this form. So, in my submission, it

    24 is premature in this form to start addressing the

    25 details of what this national security exception -- how

  165. 1 it should operate and what it would look like.

    2 It would certainly be my submission that the

    3 Tribunal could easily develop different levels of

    4 scrutiny. For instance, when the privilege or the

    5 exception is asserted by a state which has otherwise

    6 been a cooperative state with no interest either way on

    7 the outcome of the case, the court may develop a level

    8 of scrutiny that is more deferential to the claim of

    9 privilege than it would be, for instance, in a state

    10 that has certainly an apparent interest in the outcome

    11 of the case, or certainly on the issue that is being

    12 addressed by the evidence that is sought by the parties,

    13 and that has a history of non-cooperation, in which case

    14 the level of scrutiny of the assertion of privilege

    15 might be somewhat higher. This is way down the road, it

    16 seems to me, in terms of developing a jurisprudence that

    17 will be illustrative of this balancing exercise that is

    18 perfectly open to the Tribunal.

    19 So my submission is this is where this very

    20 legitimate concern is addressed and not by a unilateral

    21 denial of compellability, which, as we have illustrated

    22 before, is simply not open under a proper interpretation

    23 of the Statute.

    24 JUDGE McDONALD: Let me interrupt you. There are a number

    25 of things that you have said. One, should we apply a

  166. 1 different standard to a state simply because it has "not

    2 cooperated in the past"? It seems to me that perhaps we

    3 should take each issue as it comes and not assume that

    4 because a state, for whatever reason, has not cooperated

    5 in the past, and then subject that state to a different

    6 scrutiny, suggesting that they are not really truthful

    7 -- that is about what it amounts to -- in their

    8 assertion, or that we are further going to penalise

    9 them, now that we have them, in such a way to get back

    10 at them for not cooperating. We do not want to do that,

    11 do we? I perhaps misunderstood what you said.

    12 JUSTICE ARBOUR: I do not want to suggest a standard that

    13 is any way vindictive or punitive. My submission is

    14 essentially this is a quintessential case that is

    15 extremely fact-sensitive, and that absent a claim in

    16 this particular instance of such an interest, we have no

    17 factual underpinning upon which to engage usefully in

    18 this kind of exercise. There are several factors and

    19 I think a history of bona fide compliance could be --

    20 certainly is one that the Prosecutor would want to

    21 advance, if appropriate, on the facts of a given case as

    22 relevant to the level of scrutiny that the privilege or

    23 the exception should be admitted to; for instance, as to

    24 whether the court should be prepared to simply defer to

    25 the claim of privilege by its very nature or else, and

  167. 1 in my submission it would almost invariably be more

    2 appropriate, embark on some kind of examination of the

    3 foundation of the privilege in camera or whatever format

    4 is then appropriate.

    5 This is all, in my submission, down the road, but

    6 I just wanted to make clear that there is ample room

    7 within the framework of our proceedings to ensure that

    8 these legitimate and valid interests can be

    9 accommodated.

    10 JUDGE McDONALD: I do not know about that then, because when

    11 you referred to our evidence re rules, what you are

    12 saying is that on 89(D):

    13 "The Chamber may exclude evidence if its probative

    14 value is substantially outweighed by the need to ensure

    15 a fair trial."

    16 That begs -- it does not beg the issue -- it does

    17 not even address the issue of whether or not the

    18 evidence should even be produced by a state to the

    19 Prosecutor for its use, and then, when it is attempted

    20 to be used, the court makes a determination that the

    21 probative value is substantially outweighed by the need

    22 to ensure a fair trial.

    23 The issue is whether or not a state is obligated

    24 to disclose to (a) the Prosecutor or perhaps even the

    25 Trial Chamber material which it considers to be

  168. 1 protected for national security reasons. So the fact

    2 that it may not be admitted in trial does not really

    3 resolve that issue, because the damage has already been

    4 caused, on the part of the state at least, because the

    5 Prosecutor has it.

    6 JUSTICE ARBOUR: I would submit, coming back to the

    7 original analysis that I put forward, that when we are

    8 in the post-indictment phase of the proceedings, for all

    9 practical purposes the subpoena or any other means of

    10 compelling evidence is a mechanism that is ultimately

    11 geared to the conduct of the trial. If, for instance,

    12 there could be a serious claim that the evidence that we

    13 are seeking to get access to in this case was so

    14 immaterial that it could not possibly be admissible at

    15 trial, in my submission it would be a proper ground for

    16 this Chamber to deny access, which is a completely

    17 different issue than the issue on which we were here

    18 today, whether we have the legal power to compel access

    19 to the evidence.

    20 Now whether this evidence is protected by -- some

    21 of it may be protected by a solicitor-client privilege,

    22 and it ought to be asserted, if that is the case, but in

    23 my submission, if the evidence was not to be properly

    24 admissible at trial, then I would concede that it ought

    25 not to be properly disclosed or discoverable by the

  169. 1 Prosecutor in a trial preparation phase through the use

    2 of a court order. I will make that concession.

    3 So the ultimate test is the test of admissibility

    4 at trial. That is what determines whether the subpoena

    5 should be executed.

    6 JUDGE McDONALD: It may be admissibility at trial, because

    7 it may be relevant, but it still may be privileged on

    8 the part of the state and thus not subject to a subpoena

    9 that would allow the Prosecutor or the defence, even, to

    10 look at evidence. So it may very well be admissible, it

    11 may be relevant, but it is still protected because there

    12 are some very serious national security questions

    13 involved.

    14 So that is another way to protect it, but we still

    15 have not resolved the first issue, and that is whether

    16 or not the state is required to give to the Trial

    17 Chamber material that is the subject of a subpoena if it

    18 claims that it is protected by national security or

    19 military secret privilege. Should they give that to the

    20 Trial Chamber for review to determine whether or not

    21 that claim is legitimate, or do they have a blanket

    22 right to make that claim, or must they make the claim

    23 and then substantiate it with something? That is the

    24 issue. Those are the issues.

    25 JUSTICE ARBOUR: Yes. In my submission --

  170. 1 JUDGE McDONALD: How do we resolve those?

    2 JUSTICE ARBOUR: Well, maybe I misspoke myself when I spoke

    3 of admissibility. If evidence is relevant but it is

    4 barred by a privilege, in my submission it is not

    5 admissible and it is in that sense --

    6 JUDGE McDONALD: But you do not get it to begin with.

    7 JUSTICE ARBOUR: That is right. I concede that. If you

    8 cannot show that the evidence sought is both relevant,

    9 material and not barred by any rule of exclusion, then

    10 you cannot get it. You can only get the evidence if you

    11 can demonstrate that it is relevant, material and

    12 otherwise admissible at trial. So the party wanting to

    13 resist the subpoena is entitled to say: "The evidence

    14 you are seeking from me is barred, for instance, by the

    15 solicitor-client privilege."

    16 That determination has to be made prior to any

    17 disclosure to the Prosecutor but presumably it cannot be

    18 made just by asserting it. You have to produce some

    19 indication to the court that, in fact, the document,

    20 say, that is being sought is a document that is covered

    21 by the umbrella of solicitor-client privilege.

    22 In my submission it is exactly the same thing with

    23 respect to an assertion of national security or

    24 privilege. It is a matter for determination the first

    25 time around, either in a pre-trial phase or at trial,

  171. 1 for the court to determine whether the privilege is

    2 validly asserted.

    3 Now, what level of scrutiny would be the

    4 appropriate one? In the abstract I suppose one could

    5 imagine cases where the court would not even want to

    6 look at the content of the document, could be satisfied

    7 on all the other circumstances that the relevancy is so

    8 marginal, the probative value is so marginal, and that

    9 on its face there is such a plausible claim of state

    10 security that the court may even defer and make the

    11 decision without examining the content. In my

    12 submission, these would be rare occasions. More

    13 commonly, the court would engage in this balancing

    14 exercise probably wanting to examine in camera and keep

    15 sealed in the court documents, if it had to, the

    16 materials on which secrecy is being claimed.

    17 JUDGE McDONALD: In your brief you take the position that,

    18 in respect to national security interests or other

    19 sensitive information, that the Trial Chamber should be

    20 permitted to review such information or evidence and

    21 then make a finding that the purported interests of the

    22 state and non-disclosure outweighs the manifest

    23 interests of the International Criminal Tribunal and the

    24 Security Council in ensuring the effect of prosecutions

    25 of serious violations of international humanitarian law

  172. 1 committed in the territory of the former Yugoslavia.

    2 So is it your position that the Trial Chamber has

    3 a right to review the documents when there is a claim

    4 made that they are protected by national security

    5 interests?

    6 JUSTICE ARBOUR: Absolutely.

    7 JUDGE McDONALD: Okay.

    8 JUSTICE ARBOUR: Otherwise -- and just -- this will be my

    9 --

    10 JUDGE McDONALD: Tell me what support you have for that in

    11 the citations that you have given us. For example, from

    12 the United States in the Reynolds case followed by

    13 Nixon, which you cite on page -- it is here somewhere --

    14 I thought you cited it?

    15 JUSTICE ARBOUR: Yes, we did cite it somewhere.

    16 JUDGE McDONALD: I do not read Reynolds that way.

    17 JUSTICE ARBOUR: If I may just come back to the original

    18 point on whether or not a mere statement of the

    19 privilege would bar any further scrutiny, in my

    20 submission that is an untenable position if we are

    21 correct on the threshold issue of compellability. If

    22 the Tribunal has the power to compel from states and

    23 individuals testimonial and documentary evidence,

    24 obviously it cannot concede that by merely raising a

    25 claim of national security it would be yielding its

  173. 1 authority to compel. So, in my submission, the mere

    2 raising of a claim of national security has to be on its

    3 face insufficient.

    4 Now, what more needs to be done for the court to

    5 be satisfied that on balance it should respect the claim

    6 of privilege? I can only say it will vary from case to

    7 case, but let me maybe say at the outset: there are

    8 very few jurisdictions which now would tolerate an

    9 absolute and unreviewable claim of state secret,

    10 executive privilege or national security privilege in a

    11 criminal prosecution.

    12 Now, I will concede once again that we are in a

    13 very different legal environment. In a domestic

    14 jurisdiction there is unity of interest in the state.

    15 It is a fair assumption, certainly supported by the law

    16 of most states, that the state has an equal interest in

    17 protecting criminals and in protecting the secrecy of

    18 its national security, and, if absolutely pressed, the

    19 state itself will make the decision and could possibly

    20 make the decision not to prosecute. So if at some point

    21 there was a genuine risk that in order to come to a fair

    22 and reliable disposition of a criminal case, where guilt

    23 or innocence turns on access to a piece of evidence that

    24 could be protected by national security, a state may be

    25 forced to choose between its dual competing public

  174. 1 interest, state security or law enforcement.

    2 Now, we are in a context in which we do not have

    3 the luxury of deferring to the state making that

    4 adequate choice, because what is really competing here

    5 is not the national interest of a state in protecting,

    6 say, its military secrets and its interest in law

    7 enforcement; the balancing exercise, in my submission,

    8 that the Tribunal has to embark upon is the competing

    9 interest of the international community, on the one hand

    10 of ensuring that the crimes that are within the

    11 jurisdiction of this Tribunal are fully and adequately

    12 prosecuted -- that is one interest -- and, on the other

    13 hand, of respecting the genuine, well-founded sort of

    14 privacy interest of persons and security interest of

    15 states.

    16 I concede that there is an international community

    17 interest in not unduly violating domestic state secrets,

    18 but there is also an international community interest in

    19 ensuring that crimes within the jurisdiction of this

    20 Tribunal are prosecuted to the fullest and field a

    21 reliable conviction or acquittal.

    22 In that case we cannot turn to the state and say:

    23 "You make the choice" --

    24 JUDGE McDONALD: Who do you mean by the state? A state

    25 judge or the prosecution?

  175. 1 JUSTICE ARBOUR: The prosecution.

    2 JUDGE McDONALD: That is exactly what I thought you meant.

    3 So in a domestic situation the prosecution make the

    4 decision: "We have this evidence and we have to make

    5 the decision whether we are going to go forward against

    6 this evidence. If we have to use evidence that may

    7 reveal national secrets, then we will not go forward."

    8 So that is all within the province of the Prosecutor's

    9 Office.

    10 JUSTICE ARBOUR: It could, although --

    11 JUDGE McDONALD: So they make that decision.

    12 JUSTICE ARBOUR: Although under the mandate that has been

    13 given to the Prosecutor by the Security Council I do not

    14 think it is incumbent on the Prosecutor to uphold claims

    15 of national security interest. I believe that the

    16 Prosecutor is entitled to put his or her case to the

    17 Tribunal and it is in the Tribunal that these competing

    18 interests will be debated and the Tribunal will come to

    19 either the realisation that in this case the

    20 international community's interest will be better

    21 protected by either respecting the claim for privilege,

    22 particularly if the evidence sought is of minimal

    23 probative value, to take an extreme case -- if the court

    24 could come to the conclusion that it could easily

    25 respect, for instance, a claim of national security

  176. 1 privilege without jeopardising the reliability of the

    2 fact-finding process, because if the evidence sought is

    3 either merely corroborative of other evidence or is of

    4 trivial probative value, that is the easy case.

    5 There are other instances where the evidence

    6 sought seems to be crucial to a just and reliable

    7 disposition of the case, and where the national security

    8 that is being asserted has no credible basis, either in

    9 fact or in law, in which case the court would reject the

    10 privilege.

    11 These cases, even domestically, are not frequent,

    12 so it is difficult to have the full spectrum of these

    13 kinds of dispositions. My submission is the court can

    14 have -- this Tribunal has full compellability power and

    15 a full capacity within the framework of the Statute to

    16 respond very adequately to these very legitimate

    17 concerns but they have to be addressed with the full

    18 factual underpinning to give an air of reality to a

    19 debate that is otherwise, I think, extremely

    20 speculative.

    21 JUDGE McDONALD: I do not know. It just seems to me then,

    22 if anything, the state before our Tribunal is in need of

    23 greater protection, because, if I understand your

    24 argument, and I am not sure I fully understand it, in a

    25 domestic situation it would be the Prosecutor that would

  177. 1 probably make the determination: "Can we make this case

    2 without violating national security interests?"

    3 If they make the determination that that cannot

    4 happen, then they will not go forward. So in a sense

    5 the Prosecutor is assisting in almost protecting the

    6 state by making decisions about what cases it will

    7 prosecute, and if there is a need to violate national

    8 interest. Here, though, the Prosecutor does not have an

    9 interest in that at all. The Prosecutor has an interest

    10 in bringing a case. Only the Tribunal then has an

    11 interest in perhaps stopping the disclosure of national

    12 security interests, and, if so, it seems to me that we

    13 should be very careful in that exercise.

    14 JUSTICE ARBOUR: I certainly concede the need for

    15 prudence. One must, of course, realise that the

    16 materials that are sought by this kind of order could be

    17 sought by the defence as well. This question has been

    18 alluded to before.

    19 JUDGE McDONALD: Yes.

    20 JUSTICE ARBOUR: On that point all I can say once again is

    21 that these issues are extremely fact-sensitive. If the

    22 defence was seeking production of information from a

    23 state and the state was claiming that the evidence ought

    24 not to be produced because of a national security

    25 interest, once again in my submission the court would

  178. 1 have to engage in this balancing test of trying to

    2 determine the potential probative value of the evidence

    3 against the severity of the injury that would be

    4 inflicted to the state's interest if the evidence was

    5 being produced.

    6 Now what would be the ultimate result, I hate to

    7 even imagine a case scenario as what has been even

    8 alluded to before, but in my submission if the court was

    9 to come to the conclusion that the evidence is critical

    10 to the entitlement of the defence to lay the foundation

    11 for an acquittal, and at the same time it could not

    12 compel, for instance, because the evidence was in the

    13 hand of a state against which means of enforcements are

    14 somewhat limited, and therefore it came to the

    15 conclusion that the defence could not get access to a

    16 piece of evidence that would appear to be critical to

    17 its entitlement to be defended, presumably it could

    18 order that the proceedings be stayed.

    19 JUDGE McDONALD: Or dismissed.

    20 JUSTICE ARBOUR: It does not lie with the Prosecutor to

    21 look at the Doomsday scenario for its case but that is

    22 the ultimate.

    23 JUDGE JAN: In such a case we will be transferring our

    24 judicial power to the case. It can solely determine

    25 whether the case can go on or the man be acquitted. Is

  179. 1 really then the judge not this court?

    2 JUSTICE ARBOUR: In that case I hope the state would be

    3 answerable to public opinion and to the Security

    4 Council, not only for its lack of compliance, but for

    5 defeating in a very dramatic way the purpose for which

    6 the Tribunal was set up. So ultimately I would hope

    7 that if ever a case of this kind, offset with this kind

    8 of dilemma, presented itself factually, and my

    9 submission is that it will be -- it is a highly

    10 hypothetical case, where this evidence could not be

    11 obtained by any other means and could be demonstrated to

    12 be so probative of innocence that we could not proceed

    13 without it -- but if that were the case, the state in

    14 question would be answerable to the world community and

    15 certainly, I would hope, to the Security Council for

    16 having taken such an unacceptable position in the face

    17 of its obligation to cooperate with international

    18 criminal justice, but that is the end of the road, in my

    19 submission, for this kind of argument.

    20 If I may --

    21 JUDGE McDONALD: Where are you going now?

    22 JUSTICE ARBOUR: The last submission I have to make is on

    23 the power of enforcement, Rule 77.

    24 JUDGE McDONALD: How long will you need for that?

    25 JUSTICE ARBOUR: I am going to need only ten minutes, if

  180. 1 I just --

    2 JUDGE McDONALD: Let us continue on. We would normally

    3 finish at 5.30. Let us continue on and see if we can

    4 complete that portion.

    5 JUSTICE ARBOUR: Much has been said already so I think we

    6 can complete these submissions rapidly, if I can get to

    7 it.

    8 I just want to come back to my original submission

    9 that a subpoena is, contrary to what its Latin name

    10 seems to have indicated to some, not an exercise in

    11 punishment. It is an exercise in compellability. If

    12 the subpoena fails, and I will start with a natural

    13 person -- if a subpoena is addressed to a person,

    14 requiring that person to attend court and/or produce

    15 documents to the court, and there is non-compliance, in

    16 my submission it is appropriate to then turn to the

    17 witness and call for an explanation for the

    18 non-performance, for instance by issuing an order that

    19 the witness attend to show cause, and, frankly, whether

    20 we call it, to show cause why he or she should not be

    21 held in contempt, or merely be given a second

    22 opportunity to give an explanation for his

    23 non-compliance, again I do not think it is a critical

    24 distinction.

    25 Failing that, and assuming, first of all, that we

  181. 1 could be certain that service of the subpoena has been

    2 effected -- for instance, in a case like this one where

    3 the recipient of the subpoena has had exchanges with the

    4 Tribunal, so we can be under no misapprehension that the

    5 party that is targeted knows of the proceedings.

    6 JUDGE McDONALD: This is for Bosnia-Herzegovina.

    7 JUSTICE ARBOUR: Yes, and for the personal recipients of

    8 the subpoena, one of whom is represented by counsel here

    9 today.

    10 JUDGE McDONALD: Yes.

    11 JUSTICE ARBOUR: So we know they are aware of the existence

    12 of the subpoena.

    13 JUDGE McDONALD: It is not the Croatian subpoena, though,

    14 that you are referring to?

    15 JUSTICE ARBOUR: That is right, and I am not making any

    16 submissions on whether or not there is evidence to

    17 suggest that the Minister of Defence of the Republic of

    18 Croatia is unaware of the existence of the subpoena that

    19 has been issued against him. It has been duly served

    20 through the proper channels of communication with the

    21 Republic of Croatia. There has been no suggestion that

    22 it was not properly then delivered. So in my submission

    23 we could certainly proceed in this case with the fair

    24 assumption that the witness is aware of that order.

    25 Now, if there is non-attendance, I will be making

  182. 1 submissions that we then fall squarely within Rule 77,

    2 but even before getting there, if I may, Rule 77 is an

    3 illustration of the need to give genuine meaning to the

    4 express compellability and to give real meaning to the

    5 court order. If the court has the power to issue a

    6 legally binding order compelling a person to attend

    7 court, it has to mean something more than you serve the

    8 order on the person and you wait and see whether

    9 voluntary compliance will be forthcoming.

    10 In my submission, it is open to the court, to the

    11 Tribunal, either on its own motion or at the request of

    12 a party, if there is non-compliance with a subpoena, to

    13 issue a warrant for the arrest of the person, thereby

    14 compelling his attendance in court. I will base my

    15 submission on the wording of the Statute itself, which

    16 once again is not extremely explicit.

    17 I think it has been clear in the course of today's

    18 argument of this Statute that, one, it is not always

    19 very explicit and, in my submission, does not have to be

    20 if it is read in a manner which is consistent with the

    21 principles that it should be read to achieve its

    22 purpose.

    23 If we may turn to Article 19, Article 19,

    24 subsection 2, provides that:

    25 "The judge may, at the request of the Prosecutor,

  183. 1 issue orders and warrants for the arrest, detention,

    2 surrender or transfer of persons."

    3 It does not say "of accused". We are now

    4 post-indictment. The indictment has now been

    5 confirmed. The accused is at that point a legal

    6 entity. The distinctions between persons and accused

    7 cannot be viewed as accidental in this Statute. It --

    8 the distinction is drawn consistently.

    9 If you turn to Article 21, paragraph 1:

    10 "All persons shall be equal before the

    11 International Tribunal."

    12 Starting at paragraph 2:

    13 "The following subsections convey rights that are

    14 conferred not on persons but on the accused".

    15 The language is extremely specific of what its

    16 intent is.

    17 JUDGE JAN: You have referred to Article 19, subsection 2.

    18 It starts with:

    19 "Upon confirmation of an indictment..."

    20 Then it talks about warrants of arrest,

    21 detention. On the face of it this probably means this

    22 refers to persons who have been indicted, not to other

    23 persons, if you read subsection 2. It starts with:

    24 "Upon confirmation of an indictment ..."

    25 The person charged is mentioned. Then it talks of

  184. 1 the issuing of warrants. Obviously it refers to persons

    2 who have been indicted and not to witnesses or other

    3 persons.

    4 JUSTICE ARBOUR: Well, in my submission, that has certainly

    5 been the conventional interpretation until the issue is

    6 otherwise raised. I have rested my submissions today on

    7 Article 19.2, giving the court the power to issue such

    8 orders as are required for the conduct of the trial.

    9 JUDGE JAN: Or transfers of persons.

    10 JUSTICE ARBOUR: That is right. I submit the section could

    11 have said and indeed should have said if it was meant to

    12 be so limited:

    13 "Upon confirmation, the judge may issue an order

    14 for the arrest, detention, surrender, transfer of the

    15 accused."

    16 JUDGE JAN: "Of persons".

    17 JUSTICE ARBOUR: It has said "of persons". If you turn to

    18 Article 29, subsection 2, you will trace exactly the

    19 same language:

    20 "The state shall comply without undue delay for an

    21 order issued by a Trial Chamber."

    22 Included in that is subsection (d) and (e):

    23 "(d) the arrest and detention of persons;

    24 (e) the surrender or transfer of the accused."

    25 Once again in my submission the Statute clearly

  185. 1 contemplates an arrest and detention power of persons

    2 who are not accused, and I have heard it said that these

    3 statutes sometimes are drafted very rapidly. In my

    4 opinion, this kind of language is not accidental

    5 language and it is perfectly consistent with the need

    6 for the court to have powers to issue an order that

    7 should yield voluntary compliance, and if it does not,

    8 it would be open to the court to then say: well, we

    9 have issued a subpoena for this witness to attend. We

    10 have every reason to believe that the witness has been

    11 served. He is not in attendance. We will now issue an

    12 arrest warrant served on the state requiring the state

    13 to then assist the Tribunal in bringing the witness

    14 before the court in compliance with the subpoena."

    15 So that is my first submission.

    16 JUDGE McDONALD: If the witness does not come forward,

    17 would the Trial Chamber then have the power to conduct a

    18 hearing to determine whether that person is in contempt,

    19 if he is not present.

    20 JUSTICE ARBOUR: The question was raised of whether one

    21 should proceed in the absence of the witness. I think

    22 that has been -- in my submission there is no impediment

    23 to proceeding in the absence of a witness who is not

    24 forthcoming, but it is not the preferred course of

    25 action. The whole purpose of the exercise is not to

  186. 1 punish people who would rather not come to The Hague.

    2 The purpose of the exercise is to get them here.

    3 We issue a subpoena because we are persuaded we

    4 need their evidence. If they do not come, in my

    5 opinion, there is every foundation in the Statute to

    6 then have recourse to another method of securing their

    7 attendance. This is also consistent with the

    8 imprisonment power that is contemplated by Rule 77 for a

    9 witness who refuses to answer a question.

    10 JUDGE McDONALD: That witness is before the Trial Chamber.

    11 Once again, if a subpoena is issued to a state, the

    12 state then executes the subpoena on a party to produce

    13 -- not a party -- a person to produce documents. The

    14 person does not appear. The court then enters an order

    15 to show cause why the individual should not be held in

    16 contempt. That order is then executed by the state on

    17 the individual and the individual still does not

    18 appear. May the Tribunal then conduct a hearing and

    19 hold that person in contempt and utilise the fines

    20 provided for in 77 without his presence and would that

    21 be a trial in absentia?

    22 JUSTICE ARBOUR: In my submission, if I were put in the

    23 position of having to urge the court to move in that

    24 direction, I submit it would be an exercise in

    25 futility. If the witness -- if we go through all these

  187. 1 proceedings and the Prosecutor can satisfy the court

    2 that proper service was achieved and therefore the

    3 witness is in contempt, and therefore the Prosecutor

    4 seeks now a term of imprisonment, it is not going to do

    5 any good; we still cannot get the witness to attend.

    6 So, in my submission, the ultimate route would be

    7 -- even after this trial in absentia of the

    8 recalcitrant witness, we would still be at the end of

    9 the day facing the possibility of issuing an arrest

    10 warrant in order to give effect to the sentence of

    11 imprisonment that could have been imposed in the absence

    12 of the witness.

    13 It would seem to me considerably more expedient

    14 not to embark on this proceeding and to simply call upon

    15 the cooperation of the state to bring a person before

    16 the Tribunal under the powers that I say have been

    17 conferred upon this Tribunal to use arrest and detention

    18 to secure the attendance of persons before the Tribunal.

    19 JUDGE McDONALD: So the Trial Chamber could not then go

    20 forward and conduct a hearing that may result in holding

    21 an individual in contempt without his presence?

    22 JUSTICE ARBOUR: In my submission we could do that.

    23 JUDGE McDONALD: That would not be a trial in absentia.

    24 JUSTICE ARBOUR: Not in the sense of a trial of the

    25 accused. It is a measure for the enforcement of a court

  188. 1 order.

    2 JUDGE McDONALD: I just want to understand your position.

    3 Article 21, which provides, of course, that the accused

    4 is entitled to be tried in his presence, coming from the

    5 International Covenant of Civil and Political Rights,

    6 this is an instance where the person is accused not of a

    7 crime within our subject matter jurisdiction but of a

    8 crime, a crime which carries $10,000 and 6 months.

    9 JUSTICE ARBOUR: Without embarking in common law

    10 refinements on the law of contempt, my submission would

    11 be that this is a civil contempt. There is no accused.

    12 This is a defiance, a non-compliance with a court order

    13 that can be duly recorded. The person can be held in

    14 contempt. The court might be reluctant to then embark,

    15 both for a principle reason and for expediency reason,

    16 might be reluctant to embark on an actual sentencing in

    17 absentia after the finding of non-compliance.

    18 JUDGE McDONALD: Civil contempt is still imprisonment; you

    19 would imprison the person for an indeterminate length

    20 although in some national system they have determined

    21 you must let him out even if he does not comply. It is

    22 still imprisonment sometimes.

    23 I guess I understand your position that it would

    24 not be a trial in absentia. I do not need to go through

    25 all of the predicate. Just tell me where I am, because

  189. 1 that is where we are now, you know, with respect to this

    2 subpoena as it relates to Bosnia-Herzegovina. I have

    3 entered an order to show cause and the next step may be

    4 taken. I want to find out your position.

    5 JUSTICE ARBOUR: My position is that the purpose of what

    6 I say is the power to issue an arrest warrant in the

    7 case of non-compliance around the purpose of Rule 77(A),

    8 the one that I am concerned with, its purpose is

    9 compellability, not punishment, and a witness could

    10 always purge his or her contempt by attending. For

    11 instance, if the witness was held in contempt and

    12 sentenced to the maximum contemplated by our rule, there

    13 is no question that the court would not contemplate

    14 detaining the witness for six months. If the witness

    15 said: "I am here now. I am willing to give my

    16 evidence." This is well understand in the law of

    17 contempt that the contempt can be purged by compliance,

    18 not a punishment purpose.

    19 JUDGE McDONALD: But in trials in absentia the concept for

    20 those countries that have them would require a retrial

    21 if that person comes. Notwithstanding that provision,

    22 some common law countries have taken the position that

    23 trials in absentia are inappropriate. Except in the

    24 United States under Crosby, if the accused appears, the

    25 trial begins and then he absents himself. I do not

  190. 1 know. We are extending ourselves beyond -- maybe now is

    2 the time to adjourn and we can battle back and forth

    3 some more tomorrow about where we are.

    4 JUSTICE ARBOUR: I have virtually nothing else to say,

    5 except if you will allow me to take a minute to make my

    6 final point, I will be finished and you can turn to

    7 somebody else tomorrow.

    8 JUDGE McDONALD: No. I have some questions.

    9 JUSTICE ARBOUR: Unless you have questions. I will be happy

    10 to answer your questions.

    11 JUDGE JAN: I have one question. Would the contemptor, the

    12 person who has committed the contempt, not be an accused

    13 person in that case?

    14 JUSTICE ARBOUR: No, in my submission, no. He is not an

    15 accused within the meaning of the Statute. No. There

    16 is nothing to give that person that status.

    17 The final point I wish to make is that although

    18 Rule 77(A) speaks of the witness refusing to answer a

    19 question being put under, I might say, severe penalties

    20 for lack of compliance, it is inconceivable that a

    21 witness could be put to that kind of penalty for

    22 refusing to answer a question, if the witness was not

    23 otherwise compellable to be there in the first place.

    24 If there is no power to compel the witness to come

    25 to court to answer a question, there cannot possibly be

  191. 1 any power to compel the witness to answer the question

    2 when he or she attends. Presumably, if the witness is

    3 always at liberty to comply with the subpoena, the

    4 summons, whatever court proceeding is used to bring the

    5 witness to court, if that is voluntary, surely the

    6 witness can walk away from the witness stand at any

    7 stage in the proceedings?

    8 So I submit that the penalty for refusing to

    9 answer a question implicitly implies that there is an

    10 equal penalty for refusing to come in the first place.

    11 JUDGE JAN: Just a minute. This rule is of a penal nature,

    12 and, as I understand it, penal provisions ought to be

    13 interpreted strictly. Can you extend them in the

    14 fashion in which you are suggesting?

    15 JUSTICE ARBOUR: In my opinion, it is not an interpretation

    16 that is -- it is an interpretation that avoids an absurd

    17 interpretation of the rule which would suggest that if a

    18 witness voluntarily complies he is at greater risk than

    19 if he had not complied at all in the first place. In my

    20 submission, it would be such an absurd interpretation of

    21 the provision that it is not an undue expansion of the

    22 literal wording to say that it obviously and clearly

    23 contemplates that the witness does not have a choice to

    24 answer, for instance, a summons issued by the court

    25 mid-trial requiring his attendance.

  192. 1 These are my submissions on the application of

    2 Rule 77 and on the alternative possibility of the court

    3 issuing an arrest warrant to secure the attendance of

    4 the witness.

    5 JUDGE McDONALD: Let me just ask you a question. We do

    6 have a Rule 77 which deals with the contempt of a

    7 witness in the presence of the court failing to answer a

    8 question and then we advise the witness of the

    9 penalties, etc. Then we also -- in 77(C) the Rule

    10 provides that a person who holds -- who interferes or

    11 intimidates a witness -- interferes with or intimidates

    12 a witness can be held in contempt. Now you are

    13 suggesting that the Tribunal has the power to issue a

    14 subpoena if there is not a response, then that the

    15 penalty that may be imposed is contempt, with respect to

    16 that individual. Does Rule 77 cover that possibility,

    17 and if it does not cover that possibility, would it be a

    18 violation of the nullem crimen sine lege principle?

    19 I asked an amicus that and he said yes, or maybe he

    20 volunteered before I even asked him.

    21 JUSTICE ARBOUR: In my submission it is not a violation.

    22 When the subpoena is issued -- in fact, that might be

    23 the sole advantage of using that terminology -- it

    24 contains in no uncertain terms the fact that this is a

    25 legally binding court order.

  193. 1 Now, it seems to me that it could -- in fact, it

    2 might be good practice for the court to state on the

    3 face of the subpoena what the consequences of

    4 non-compliance are, but the law is in existence. There

    5 is no secret about it, that the court has measures to

    6 ensure compliance, and in my submission there is no

    7 violation of that rule.

    8 JUDGE McDONALD: So if we put him on notice, then in the

    9 order that failure to comply may result in or can result

    10 in imprisonment for up to six months and a fine not to

    11 exceed US $10,000, then he is put on notice of the

    12 possible consequences; he makes the decision with full

    13 knowledge of his consequences.

    14 JUSTICE ARBOUR: In my submission it is not necessary,

    15 because we are presumed to know the existing statute,

    16 but it might be an advisable practice.

    17 JUDGE McDONALD: There is nothing in the Statute that makes

    18 it a crime.

    19 JUSTICE ARBOUR: In my submission it is not a crime. It is

    20 a mechanism of enforcement of court orders.

    21 JUDGE McDONALD: You are right. It is not a crime. It has

    22 criminal consequences -- penal consequences.

    23 JUSTICE ARBOUR: Unpleasant consequences but they are not

    24 criminal. They do not reflect the criminal content.

    25 JUDGE McDONALD: Since you are speaking to remedies,

  194. 1 I think Mr Crawford had perhaps the less controversial

    2 aspect of some of the arguments, and that he spoke to

    3 the power to issue subpoenas. You are now speaking to

    4 remedies. Your position, as I understand it, is that a

    5 subpoena may be issued to a state, but that the Tribunal

    6 cannot impose any penalties against a state, but -- is

    7 that true?

    8 JUSTICE ARBOUR: It is true. Are you still content to have

    9 me continue or do you want to resume in --

    10 JUDGE McDONALD: Let us just finish with this since I am in

    11 the middle of the question.

    12 JUSTICE ARBOUR: In my submission, we have taken the

    13 position in the circumstances of this case, considering

    14 the existing statutory framework and the existing rules,

    15 that, although the Tribunal may issue a legally binding

    16 order on the state to produce documents, it can go no

    17 further under this existing framework but to record

    18 non-compliance and to report it to the appropriate

    19 authorities, which in my view clearly include the

    20 Security Council.

    21 Now, I want to make the submission very forcefully

    22 that this does not confer any kind of immunity on the

    23 state that it could then pass on to its state

    24 officials. In fact, it is the reverse. Everyone,

    25 state, persons and, obviously, state officials, are all

  195. 1 under the same obligation of compliance. The state is

    2 not immune from compliance. It is just a penalty, and

    3 some have said it is a penalty to be denounced publicly

    4 and to the Security Council.

    5 The mechanism of enforcement available against a

    6 corporate entity and a state are different than those

    7 available against persons. So there is no immunity for

    8 the state to pass on to its government officials. They

    9 are in the same position, assuming we are correct up to

    10 now that there is a power to issue an order compelling

    11 them to give evidence and produce documents -- they are

    12 in no privileged position compared to any other witness

    13 for whom, I might say, there might be also very

    14 unpleasant personal consequences of having to come and

    15 comply with the order.

    16 I understand for a government minister it might be

    17 a painful decision whether to comply with the order of

    18 the Tribunal against the wishes of its government or

    19 vice versa, but, in my submission, the consequences of

    20 complying with an order to give evidence are extremely

    21 painful for many witnesses, and there is no reason in

    22 law or in principle why a government official should be

    23 the beneficiary of an alleged immunity that is passed on

    24 from the state. There is no such immunity.

    25 JUDGE McDONALD: Then exacting a penalty against a

  196. 1 government official for failure to comply with a

    2 subpoena would not be in essence exacting a penalty

    3 against a state, because that individual is acting in

    4 his official capacity and is acting in a sense as an

    5 agent of the state within the scope of his authority.

    6 You see no inconsistency with that?

    7 JUSTICE ARBOUR: No, I see no inconsistency, and again

    8 I would say that recourse should always be taken first

    9 to giving this individual every possibility to comply

    10 and, if that fails, to turning to the state for

    11 assistance in bringing that needed witness before the

    12 Tribunal. Failing that, it is correct I am afraid that

    13 that witness, like any others, would have to face the

    14 consequences of the personal choice that he or she made

    15 to defy an order issued by this Tribunal.

    16 JUDGE JAN: State officials are really the agents of the

    17 state. They perform functions on behalf of the state

    18 with the authority of the state.

    19 JUSTICE ARBOUR: Yes, and in that sense they are legally

    20 bound to obey the court orders either on their personal

    21 behalf, like all other personal natural persons, or on

    22 behalf of the state, which is legally bound to comply.

    23 The only question is not whether both the state and its

    24 agent are legally bound to comply, but what the Tribunal

    25 can do in the face of their non-compliance, and I say

  197. 1 there is no reason in principle to then broaden the

    2 protection or give some kind of immunity to the witness

    3 merely because we cannot go the full distance at this

    4 stage of our statutory and regulatory framework against

    5 non-complying statements.

    6 These are my submissions. Unless you have further

    7 questions.

    8 JUDGE McDONALD: We do not at this point. We may

    9 tomorrow.

    10 Now, let us determine, if we may -- I understand

    11 some of the amici may have to leave. You are free to

    12 leave. Thank you very much for coming, those who have

    13 to leave. We need to determine tomorrow, our schedule.

    14 Mr Rivkin?

    15 MR RIVKIN: Your Honour, may we briefly address the court?

    16 I fully appreciate that it is entirely up to you how to

    17 structure proceedings, but we feel somewhat harmed by

    18 the way events have evolved today and it in some way

    19 bears upon the question of the rules. We have been told

    20 by the Registrar that all parties would be limited to

    21 roughly 20 minutes' worth of submissions and we have an

    22 opportunity, all of us, in whatever order you designate

    23 us, we have an opportunity to make arguments today.

    24 JUDGE McDONALD: Parties would be limited to 20 minutes?

    25 MR RIVKIN: Each, yes -- no, 40 minutes. Excuse me.

  198. 1 JUDGE McDONALD: No. When Ambassador Salaj met with the

    2 representative, I told him 45 minutes, but I said that

    3 that was flexible. We are flexible. We have as much

    4 time as you wish.

    5 MR RIVKIN: I appreciate that, your Honour, but with all due

    6 respect, the way we prepared for this appearance, again

    7 perhaps taking undue guidance from the American court,

    8 from procedures, would be to say we have 45 minutes and

    9 no more than that, and if you go beyond that you get ...

    10 JUDGE McDONALD: You have more than 45 minutes.

    11 MR RIVKIN: Except we are learning about it at 6 o'clock

    12 today. We have not a whole lot of time to revise our

    13 presentations for tomorrow.

    14 JUDGE McDONALD: Pardon me?

    15 MR RIVKIN: We are learning about this, your Honour, at 6

    16 o'clock.

    17 JUDGE McDONALD: Learning about what?

    18 MR RIVKIN: About the fact that we can all go for much

    19 longer than 45 minutes, which is indeed fine.

    20 JUDGE McDONALD: The representative from the Registrar told

    21 me this morning that there were four people -- actually

    22 five people, from Croatia who would be present. I then

    23 told him that is unusual, but that would be acceptable

    24 with me. I then asked him how many people would speak.

    25 He said that perhaps all of you would speak, but that

  199. 1 you would probably take the 45 minutes, as, well as the

    2 individual, I suppose, who is sitting behind. I am

    3 willing to hear all five of you and I am willing to hear

    4 from you for as much time as you consider that you

    5 need. I do not want to hear -- I do not think we wanted

    6 to hear repeats of the arguments, but, as I advised the

    7 representative of the Registry, we would hear from each

    8 of you. You may have as much time as you need. How

    9 much time do you think you need?

    10 MR RIVKIN: I think that --

    11 JUDGE McDONALD: You can tell me tomorrow. We have planned

    12 for tomorrow and if necessary through Friday. There is

    13 a hearing in this same court room that we have to share

    14 with other Chambers on Friday at 11. I do not think it

    15 will take very long. If it is convenient for you, we

    16 can work around that, but we are free tomorrow and we

    17 can begin at 9.30, if that is acceptable. We could

    18 begin at 9.30 tomorrow morning.

    19 MR RIVKIN: I appreciate your indulgence, your Honour. We

    20 will proceed as best as we can tomorrow. My only point

    21 again, and I beg your forgiveness, is it would be

    22 somewhat easier for us, just like the Prosecutor did, to

    23 present our case in chief, if I may use an American

    24 analogy, and then engage with some separation between

    25 that presentation and the next round of some rebuttal

  200. 1 arguments. What will happen tomorrow is we will present

    2 our case in chief that is already prepared and then

    3 within close proximity try to make our rebuttal

    4 arguments.

    5 JUDGE McDONALD: I see what you are saying.

    6 MR RIVKIN: I do not want to belabour this point, but I

    7 just wanted you to appreciate where I am coming from.

    8 JUDGE McDONALD: You are saying that we went so long today

    9 that you had expected to submit your case in chief,

    10 having heard the Prosecutor, and then have over the

    11 evening to prepare your rebuttal.

    12 MR RIVKIN: Indeed, that is the case. Tomorrow I suppose

    13 we will beg your leave to have one of us present our

    14 case in chief and have another one present a rebuttal,

    15 but it would be a little strained because they would, in

    16 effect, follow each other.

    17 JUDGE JAN: You have five. It is an easy task for you.

    18 MR RIVKIN: We will do our best, but I just wanted to state

    19 our views for the record.

    20 JUDGE McDONALD: The real problem has been the amici, but we

    21 need them. We all need them and I think we have heard

    22 from -- both positions have been presented thus far by

    23 amici. Tomorrow how we will proceed is to do what we

    24 had originally decided, that we would hear from the

    25 defence after that, because we were advised -- again

  201. 1 maybe I received incorrect information -- that you

    2 needed five minutes, Mr Hayman. Now that you have heard

    3 all of this you want 50, do you not?

    4 MR HAYMAN: I will resist the temptation to jump in with

    5 these other issues and we will stick with our

    6 five-minute request, your Honour.

    7 JUDGE McDONALD: Five minutes. We thought we would hear

    8 from Mr Hayman for five minutes. Then we would hear

    9 from Croatia, Bosnia-Herzegovina and then Miss Glumac.

    10 We do have -- how many amici -- two amici to hear from.

    11 We need to hear from them in the morning, do we not?

    12 You talk with the Registry and see. Tell them what your

    13 position is and we will try to accommodate you. I am

    14 thinking -- let us see how things go tomorrow, but it

    15 may be that we may spend most of tomorrow hearing from

    16 you with your case -- your direct presentation, then

    17 hearing a rebuttal, and we not even get to hear from you

    18 on a reply until Friday. It may be.

    19 MR RIVKIN: Thank you, your Honour. Indeed, given an

    20 opportunity, we would appreciate a chance to bifurcate

    21 with some passage of time our case in chief and our

    22 rebuttal. So perhaps what you are suggesting makes

    23 sense. If we state our case in chief and you then hear

    24 from the rest of the amici, there will be at least --

    25 JUDGE McDONALD: And the reply from the Prosecutor and

  202. 1 Mr Hayman and then we have to hear from Miss Vidovic,

    2 who I think said fifteen minutes, and Miss Glumac, I am

    3 not sure how long. So we have a lot to hear from yet

    4 and things may work out well for you.

    5 MR RIVKIN: Thank you, your Honour.

    6 JUDGE McDONALD: We are adjourned then until tomorrow at

    7 9.30.

    8 (5.50 pm)

    9 (Court adjourned until 9.30 tomorrow morning)

    10 --ooOoo--