IN THE APPEALS CHAMBER OF THE INTERNATIONAL TRIBUNAL
Judge Gabrielle McDonald, Presiding
Judge Mohamed Shahabuddeen
Judge Lal Chand Vohrah
Judge Wang Tieya
Judge Rafael Nieto-Navia
Mrs. Dorothee de Sampayo Garrido-Nijgh
17 March 1999
The Office of the Prosecutor:
Mr. Geoffrey Nice
Mr. Kenneth Scott
Ms. Susan Sommers
Mr. Patrick Lopez-Terres
Counsel for the Republic of Croatia:
Mr. David B. Rivkin, Jr.
Mr. Lee A. Casey
Mr. Darin R. Bartram
Counsel for the Accused Dario Kordic:
Mr. Mitko Naumovski
Mr. Turner T. Smith, Jr.
Mr. David Geneson
Counsel for the Accused Mario Cerkez:
Mr. Bozidar Kovacic
The Appeals Chamber ("Appeals Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),
NOTING the Order to the Republic of Croatia for the Production of Documents, issued by Trial Chamber III on 4 February and filed on 5 February 1999 ("Order");
NOTING the Notice of State Request for Review of Order to the Republic of Croatia for the Production of Documents, filed ex parte the Defence for Dario Kordic and Mario Cerkez ("Defence") by Counsel for the Republic of Croatia on 11 February 1999 ("Notice of Request");
NOTING that the Republic of Croatia in the Notice of Request asserts that its request for a review of the Order is admissible pursuant to Sub-rule 108bis(A) on the following grounds:
(a) The 4 February 1999 Order was issued on a secret, ex parte basis without justification or authority in the International Tribunals Rules of Procedure and Evidence. The question whether the Trial Chambers may act upon OTP applications under Article 29(2) without first allowing the targeted State the opportunity to respond is an issue of general importance relating to the powers of the International Tribunal. [ ]
(b) The 4 February 1999 Order is inconsistent with the Appeals Chambers Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 ("29 October 1997 Judgement"). [ ] The interpretation, application, and enforcement of the 29 October 1997 Judgement, which articulated the standards and procedures to be followed under Article 29 of the ICTY Statute, is a matter of general importance relating to the powers of the Tribunal.
(c) Because the Trial Chambers Order of 4 February 1999 is inconsistent with the Appeals Chambers 29 October 1997 Judgement [ ] it raises the question of the binding and precedential effect of decisions of the Appeals Chamber on the Trial Chambers and, most particularly, on the OTP. This also is a matter of general importance relating to the powers of the Tribunal.
FURTHER NOTING that the Republic of Croatia in the Notice of Request seeks a suspension of the execution of the Order, pending resolution of the Appeals Chambers review;
CONSIDERING the provisions of Sub-rules 108bis (A) (B) and (C) of the Rules of Procedure and Evidence of the International Tribunal ("Rules");
ORDERS that the Office of the Prosecutor and the Defence be at liberty to file submissions before the Appeals Chamber by 24 March 1999, addressing whether the issues identified in the Notice of Request, as set out above, are issues of general importance relating to the powers of the International Tribunal within the meaning of Sub-rule 108bis(A) of the Rules, and, if the Appeals Chamber should hold the request for review to be admissible, whether the execution of the Order should be suspended pending resolution of the Appeals Chambers review. In their submissions, if any, the parties may further address the extent to which any material submitted by an interested party and relating to the request for review should be disclosed to the Office of the Prosecutor, the Defence and the Republic of Croatia.
Done in both English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this seventeenth day of March1999
At The Hague,
[Seal of the Tribunal]