1. We agree with the decision and would like to speak on one point: The fact that the Appeals Chamber disposes of an appeal on one ground makes it unnecessary, but not impermissible under the law of the Tribunal, to deal with an additional ground raised by the appellant. If the Appeals Chamber decides to deal with an additional ground, that does not oblige it to deal with all other additional grounds.
  2. In this case, it was a sufficient ground of disposition to determine that Croatia lacked standing, but this did not prevent the Appeals Chamber from going on, as it did, to pass on Croatia’s other "submission that the prosecution must interview or offer to interview every proposed accused before seeking a confirmation of an indictment" (para. 12 of the Decision).
  3. The additional question there was one of law, and so was the Appeals Chamber’s reply, as can be seen from the cited paragraph of its Decision. General and immediate guidance would be beneficial to the workings of the Tribunal on the issue whether there was a requirement to interview an accused before confirmation of the indictment against him could be sought.
  4. Not quite so with another additional argument, in which Croatia submitted that Mr Bobetko satisfied all the requirements for provisional release, and that, in view of this, he need not be arrested because he would at once be granted provisional release (para. 13 of the Decision). Here matters of fact would have to be assessed specific to the particular case.
  5. In particular, the Appeals Chamber would have to say whether, on the material which has been placed before it by Croatia, it accepts the claim by Croatia that Mr Bobetko would appear for trial so as to satisfy the requirements for provisional release. If an application for provisional release were to be later made by Mr Bobetko to a Trial Chamber, he would in all likelihood rely, wholly or largely, on the same facts which are now available to the Appeals Chamber; and an appeal from the Trial Chamber would lie to the same Appeals Chamber.
  6. While the Trial Chamber and the Appeals Chamber would not be legally bound by any findings now made by the latter, we believe that there would be practical difficulty in ignoring those findings, inclusive of a possible finding that, on the basis of the available factual material, Mr Bobetko would not appear for trial. In any provisional release proceedings of his own, Mr Bobetko would wish to argue the exact opposite and may complain of unfairness. There could of course be a complete legal answer to that. But, if it could be avoided, as we consider it could be, Mr Bobetko should not have to content himself with a legal answer.
  7. The Appeals Chamber should not be unnecessarily expressing itself on matters of fact which could be later brought before a Trial Chamber for decision and thence on appeal back to the same Appeals Chamber. The circumstance that the Appeals Chamber has dealt with the additional argument about the necessity for an interview did not oblige it to deal with the additional argument about provisional release; it had a discretion in the matter. In the circumstances of the case, the discretion was correctly exercised.


Done in English and in French, the English text being authoritative.

Claude Jorda

Mohamed Shahabuddeen

Dated this 29th day of November 2002
At the Hague
The Netherlands