DISSENTING OPINION OF JUDGE SHAHABUDDEEN
- Appreciating its liberal intent and drawn to it in many ways, I feel obliged
to explain my inability to agree with today’s decision on both of the points
which it addresses.
A. Competence of the Tribunal to subpoena a State official to testify
as to what he has seen or heard in his official capacity
- The first point on which I am not able to agree is a holding by the Appeals
Chamber that it is competent to subpoena a State official to testify as to
what he has seen or heard in his official capacity. Blaskic1,
which might be thought to stand in the way, is sought to be distinguished
on the argument that that case was confined to production of State documents.
Today’s decision, in paragraph 19, correctly takes the view “that whatever
relevant information Sthe two potential witnessesC may have would have been
gained by them in their capacity as State officials”. However, the decision
proceeds on the basis that this does not immunise them from subpoenas requiring
them to give evidence of what they saw and heard, short of producing State
documents. I should have wished to support this proposition but, on reflection,
it gives me difficulties. The chief one arises from the view that Blaskic
is to be confined to State documents. So, perhaps, this argument may be
- In Blaskic, the Appeals Chamber took the view that a subpoena could
not issue to a State official to produce documents in his custody in his official
capacity. The same object could however be achieved by issuing a binding order
against the State requiring it to produce the documents through some person
to be designated by it. The sanction for disobeying such an order would not
be the application by the Chamber of the criminal penalties by which a subpoena
is enforced, but a report to the Security Council of the failure of the State
to meet its obligation to cooperate with the Tribunal under Article 29 of
- Thus, Blaskic did indeed deal with documents, but it seems to me
that it is the reasoning of the Appeals Chamber in making its holding in that
case which is important. That reasoning logically extends to any other information
acquired by the official in his official capacity as a State official. This
is how the case has been consistently and authoritatively understood in the
- Blaskic was decided by the Appeals Chamber on 27 October 1997. Rule
54bis was first adopted on 17 November 1999. It provided an elaborate
procedure to be observed where a party requested “an Order under Rule 54 that
a State produce documents or information …”. It is reasonable to assume that
the judges of the Tribunal who adopted the new Rule intended it to be based
on Blaskic, that they understood the reasoning of the case to mean
that both documents and information (where these were acquired by a State
official in his official capacity) could only be obtained from the State,
and that in particular such information could not be obtained, either by subpoena
or by binding order, directly from that State official. Acting legislatively,
the judges of the Tribunal therefore fashioned a careful regime for obtaining
such information from the State through a binding order procedure, including
provisions for giving protection to the State for its national security interests.
It was pointless for them to do all of this if all the while it was and remained
possible to obtain the information directly from the State official himself
by issuing a subpoena against him. By necessary implication, the Rule excluded
the possibility of issuing a subpoena against a State official in respect
of information gained by him in his official capacity.
- On this approach, which is revisited later, it is not really necessary
to consider the scope of Blaskic: the new Rule is all that is relevant.
However, assuming that the scope of that case is still open for examination,
it is proposed to consider four views that the case was not intended to extend
to information in the sense of matters which the witness saw and heard (“information”),
short of the production of a State document (including, perhaps, production
of information gained from such a document).
- First, it may be said that the Appeals Chamber in Blaskic would
have appreciated that the individual criminal responsibility of State officials,
as provided for by Article 7(2) of the Statute of the Tribunal and as otherwise
recognised in paragraph 41 of the judgment in that case, could not be established
without competence to subpoena other State officials to testify as to their
information. In other words, the provision by Article 7(2) of individual criminal
responsibility on the part of State officials impliedly authorised the Tribunal
to issue a subpoena to other State officials requiring them to testify as
to what they had seen and heard in such cases.
- In my respectful view, that does not follow. This is because the approach
in question overlooks a distinction between the evidence of an act and the
mode by which the evidence is brought to the court. The issuance of a subpoena
or the making of a binding order is only a mode by which the evidence is brought
to court. Even if a binding order is made, the evidence will still be available
through this mode to support an Article 7(2) prosecution.
- Also, if the fact that State officials have individual criminal responsibility
means that functional immunity is withdrawn from other State officials in
respect of what they saw or heard in their official capacity, it is difficult
to appreciate why the withdrawal of the immunity should not extend to State
documents; it should be possible to subpoena the production of such documents.
- Further, information may be required from a State official in a case in
which a person who is not a State official is charged. In such a case, the
argument based on the individual criminal responsibility of State officials
could not be drawn upon. Immunity would not exist if a State official was
charged but would presumably exist if the charge was against someone else.
So, an argument resting on the individual criminal liability of State officials
is of limited efficacy.
- Second, it may be said that the Appeals Chamber in Blaskic would
have appreciated that any functional immunity of State officials automatically
disappeared with the establishment of international criminal courts. In my
view, however, there is no substance in the suggested automaticity of disappearance
of the immunity just because of the establishment of international criminal
courts. If that is the result, it does not come about, as it were, through
some simple repulsion of opposed juridical forces; a recognisable legal principle
would have to be shown to be at work, such as an agreement to waive the immunity.
- International criminal courts are established by States acting together,
whether directly or indirectly as in the case of the Tribunal, which was established
by the Security Council on behalf of States members of the United Nations.
There is no basis for suggesting that by merely acting together to establish
such a court States signify an intention to waive their individual functional
immunities. A presumption of continuance of their immunities as these exist
under international law is only offset where some element in the decision
to establish such a court shows that they agreed otherwise. It may be thought
that, in the case of the Tribunal, Article 29 of the Statute shows that they
agreed otherwise, but that provision is directed to an obligation to cooperate;
that obligation can be satisfied by a binding order which does not involve
criminal sanctions inconsistent with the traditional functional immunity of
States. Neither is an agreement to waive that immunity shown by Article 7(2)
of the Statute, which has already been dealt with. It is difficult to see
what else in the Statute shows that the establishment of the Tribunal as an
international criminal court indicated an intention by States to abandon their
individual functional immunities.
- Third, it may be said that Blaskic can be explained by reference
to a principle of law which does not lead to an extension of that case to
information, as distinguished from State documents. In paragraph 23 of its
decision in this case the Appeals Chamber says that it “is common place in
the law that, where the documents to be produced are the documents of either
the State or a corporation, only the State or the corporation can be required
to produce them, and that it is for the State or the corporation to do so
through its proper officer”, and accordingly that the “issue of a subpoena
to the Defence Minister [in Blaskic] to produce the documents would
have had to be set aside upon that basis in any event”.
- However, that does not appear to be the basis on which the Appeals Chamber
in fact proceeded in that case. The Appeals Chamber spoke of the maxim par
in parem non habet imperium and considered that it was on this basis –
a principle of international law - that functional immunity arose. It
is true that the decisions cited by the Appeals Chamber in illustration of
the working of that principle in international criminal cases concerned prosecutions,
and not subpoenas. But, in paragraph 41 of its judgment in that case, the
Appeals Chamber gave the reason : “international courts … have of course addressed
their orders or requests through the channel of the State Agent before the
court or the competent diplomatic officials ”.
- Fourth, there seems to be an argument as to the extent of the information
which attracts the immunity. On the one hand, not all kinds of information
attract immunity ; Blaskic itself recognised that. On the other hand,
it is not right to narrow the definition of information to material collected
in some central place under the authority of the State, such as its archives.
A State acts through its officials ; it has information held by them over
the whole field of its activity, national and international, including information
of matters seen or heard by them. It is not useful to attempt to refine the
matter beyond the point reached in Blaskic.
- As I understand that case, the test which it lays down is whether the material
was acquired by the proposed witness in his capacity as a State official.
I believe that today’s decision correctly finds that the test was met in this
case; it is notwithstanding this that the decision determines that the two
potential witnesses are to be subpoenaed. By contrast, the same finding that
the test was met in this case leads me to the view that the required information
can be made available to the Appeals Chamber through the making of a binding
order against the State; and, from the pleadings, I gather that the prosecution
is not opposed to that course.
- In the result, one comes to this: If, as I hold, the reasoning of this
Chamber in Blaskic covers this case, then, in keeping with the settled
jurisprudence of the Tribunal, what has to be considered is whether, in reality,
that decision is now being departed from and, if so, whether there are cogent
reasons for the departure. I think that today’s decision does represent a
departure, and that the departure is not supported by cogent reasons.
- There is a last point. It is raised in the alternative to the foregoing
questions of interpretation of Blaskic. Let it be assumed that the
reasoning in that case does not cover this case, that that case was confined
to State documents, and that consequently no question of departing from it
arises in this case. Still there is Rule 54bis. It seems to me that
the true interpretation of the Rule is that, if it is desired to have information
gained by a State official in his capacity as such an official, the only permissible
course is to move for a binding order against the State under that provision.
Even if the Rule misunderstood that case, what has to be now addressed is
the validity of the Rule and not the interpretation of the case.
- There is only one basis on which the validity of the Rule could be questioned.
That basis is that the Rule exceeded the province of the rule-making competence
confided to the judges by Article 15 of the Statute. However, this provision
empowered the judges to make “rules of procedure and evidence …”. It would
appear to provide authority for the making of Rule 54bis. The Rule
is thus valid. On a true interpretation, it excludes the issuance of a subpoena
against a State official for information gained by him in his official capacity.
For this reason and for others mentioned above, I am respectfully unable to
support today’s decision to the opposite effect.
B. Competence to subpoena potential witnesses to attend a defence
- The second point on which I am not able to agree with today’s decision
arises out of paragraph 29 of the decision, reading that the “Appeals Chamber
orders that subpoenas be issued requiring the two prospective witnesses identified
in the Motion to attend at a location in Bosnia and Herzegovina, and at a
time, to be nominated by the Krstic defence after consultation with the prosecution
(and, if need be, with the Victims and Witnesses Section), to be interviewed
there by the Krstic defence ”.
- An original defence motion of 1 April 2003 requested the “Appeals Chamber
to issue subpoena for [a named] witness … to appear before the Chamber and
give his testimony”. Another motion, of the same date and relating to another
witness, was in like terms. The motions looked to the witnesses being required
to testify in the ordinary way before the Appeals Chamber. I should have had
no difficulty with these motions.
- However, on 3 April 2003, the original requests were modified by an addendum.
The addendum referred to the “two motions for the issuance of subpoena for
[the] witnesses” and stated that it “confirms that the order sought by the
defence from the Appeals Chamber is one requiring the witnesses to attend
at some location within Bosnia so that the witnesses may be interviewed by
the defence in anticipation of adding material to the Rule 115 application
in relation to these two witnesses”.
- On the basis of the order of the Appeals Chamber, the place and time of
the proposed defence interview are to be nominated by the defence “after consultation
with the prosecution”. Apparently, however, the prosecution has no right to
participate in the interview, the interview will not be held under oath, and
it will not be part of proceedings conducted by the Tribunal itself, including
proceedings held by it through depositions. The interview will be an out-of-court
one, in anticipation of adding material to an existing Rule 115 application
brought by the defence in relation to these two witnesses. There is also no
suggestion that the witnesses are required for the purpose of producing documents:
no documents have been described or referred to in the requests to the Appeals
Chamber. The witnesses are “required ” for the purpose of giving general information
at the proposed defence interview.
- The Appeals Chamber correctly proceeds on the basis that the amended motions
are seeking subpoenas. As is known, a subpoena is enforced by the application
of criminal sanctions. I am not persuaded that the Appeals Chamber has competence
to issue the requested subpoenas. The Chamber has power to facilitate the
attendance of a potential witness at a defence interview, but it does not
have power to compel such attendance.
- The distinction is illustrated by what happened in Tadic.2
The case involved an application by Tadic to admit additional evidence in
an appeal by him. He feared that officials in the State (or Entity) where
the evidence had to be collected could be obstructive, and he accordingly
moved an ex parte “Motion for Binding Order against” that State for
certain reliefs. Pursuant to that motion, the Appeals Chamber granted him
an order to the State requiring it to “inform Defence Counsel of the precise
whereabouts of [certain] individuals” and to “use all the means in its power
during [a certain] period … to enable Defence Counsel without any restriction
or interference to interview and take statements from the individuals …”.3
The necessary arrangements were then made by the authorities of the State,
and the individuals were in due course interviewed by counsel and co-counsel
for Tadic at a police station.4 But no subpoena
was issued by the Appeals Chamber to the individuals themselves requiring
them to attend the interview held by defence counsel.
- Thus, the Appeals Chamber assisted the investigation by clearing the way
for the individuals to come forward to the defence, but did not apply compulsion
on them to come forward to the defence. This, it may be thought, represents
the correct position. However, there are opposing considerations; these have
to be considered.
- It is argued that the Appeals Chamber derives competence to grant the amended
motions from Rule 54 of the Rules of Procedure and Evidence of the Tribunal,
which, with appropriate modifications, applies in relation to appeals by virtue
of Rule 107. Rule 54 reads:
At the request of either party or proprio motu, a Judge or a
Trial Chamber may issue such orders, summonses, subpoenas, warrants and
transfer orders as may be necessary for the purpose of an investigation
or for the preparation or conduct of the trial.
- The language used in Rule 54 is admittedly wide, but it is as short as
it is wide; it has to be interpreted and applied in a reasonable way. The
provision grants general power to issue subpoenas, but whether it grants power
to issue a subpoena in a particular case depends on the nature of the case.
Thus, despite the apparent amplitude of the Rule, it was held in Blaskic5
that it did not give power to issue a subpoena to a State or to its Minister
of Defence to produce State documents. In the instant case, it is one thing
for the Appeals Chamber to use its powers under the Rule to remove any difficulties
which might prevent a potential witness from coming forward to the defence;
it is another thing for the Appeals Chamber to use its powers under the Rule
to compel the potential witness to come forward to the defence, and more particularly
under the threat of penal sanctions.
- It may be said that Blaskic recognises that the Tribunal has power
to make a binding order on a State to furnish documents to a party and that
in like manner the Tribunal is competent to issue a subpoena to a potential
individual witness to attend a defence interview for the purpose of giving
information to the defence. However, in making a binding order on a State
to furnish documents to a party, the Tribunal is acting under Article 29 of
the Statute relating to the obligation of States to cooperate with the Tribunal.
The sanction is a report to the Security Council; that is not applicable to
individuals. Thus, the Blaskic principle rests on a basis which is
peculiar to the special statutory obligation of a State to cooperate with
- Argument may also be made that the right claimed is consistent with the
recognised right of access by the defence to confidential material produced
in other cases before the Tribunal, including the criterion of a legitimate
forensic purpose used in such cases. But that right of access is not relevant.
The prosecution knows of the confidential material; it is fair that the defence
should also have it; and the whole process is under the control of the Tribunal.
The gap is too wide to be safely bridged by analogy.
- One may point to the predisposing fact that in certain jurisdictions a
court may order a non-party to produce specified documents to a party at a
stated time and place.6 But this facility does
not extend beyond documents and seems to be confined to civil proceedings.
These are criminal proceedings, and what is visualised is the giving of general
information and not the mere production of documents.
- It is also the case that deposition procedure in some countries involves
the taking of sworn evidence from a witness in the office of an attorney.
But there both parties are entitled as of right to be present, the proceedings
are subject to the standing regulations of the court, some agency of the court
is present, and the evidence is really part of the evidence before the court
or at least can be produced there. In these respects, the present case is
different. The reference in the decision to the Victims and Witnesses Section
of the Tribunal is insufficient to change anything, that Section being concerned
with the privacy and protection of witnesses and being involved, under the
decision, only, and then optionally, in the nomination of the place and time
of the interview. Further, proceedings in the office of an attorney are really
directed to gaining knowledge of the evidence on the other side, the object
being to avoid “trial by surprise” or, as it has been said, to deny a “sporting
theory of justice”. A party may indeed produce its own witnesses, but the
idea is not to enable that party to gain knowledge of the expected testimony
of its own witnesses; that is a matter which the party should know when it
decides to lead evidence from its own witness. Also, the procedure appears
to be confined to civil proceedings. The matter is not advanced by reference
to cases relating to letters of request or letters rogatory.7
- A major argument is that it is, as a general matter, imprudent for counsel
to lead evidence from a witness without the benefit of a proof of the proposed
evidence of the witness. That, it may be thought, supports the issuing of
subpoenas in this case requiring the witnesses to be interviewed by the defence.
But the decision whether a witness is to be examined without a proof is one
which counsel has to take. Though without a proof, counsel may have some reliable
basis for anticipating the general direction of the witness’s testimony, and
may feel obliged by his duty to his client to proceed without doing violence
to his obligation to act skilfully and with loyalty in the discharge of his
responsibilities as counsel.
- In Rutaganda,8 the witness was called
by the ICTR Appeals Chamber proprio motu, but it was really the appellant
who was interested in his evidence; and so the fact that his counsel proceeded
by way of cross-examination and not by way of examination-in-chief was not
important to the question whether the taking of a proof is an essential prerequisite
to counsel’s ability to lead the witness in evidence. Clearly, counsel in
that case did not have a proof of what the witness was going to say. Nevertheless,
I cannot see that that circumstance inhibited him from putting forward a vigorous
cross-examination of the witness.
- Consequently, I am not persuaded that any need to take a proof from the
two potential witnesses by itself provides justification for issuing subpoenas
requiring them to attend the proposed defence interview for the purpose of
giving details, in the nature of a proof, to the defence. The defence already
has written statements from the witnesses, having been furnished with them
by the prosecution. It is material contained in those statements on which
the defence is fundamentally relying in its existing Rule 115 motion. So,
there is a basis on which the defence can request subpoenas requiring those
witnesses to testify on the relevant point before the Appeals Chamber. And
such subpoenas are what the defence originally requested. A subpoena requiring
the witnesses, under threat of criminal penalties, first to attend a defence
interview for the purpose of giving details of the material referred to in
their existing statements is another matter.
- One possible argument comes from Article 18(2) of the Statute, which gives
power to the Prosecutor to “question suspects, victims and witnesses, to collect
evidence and to conduct on-site investigations”. Why should not the Tribunal
have power to authorise the defence to question witnesses? Equality of arms
comes to mind. The answer is that the provision was only vesting the Prosecutor,
a creature of statute, with a competence to question witnesses that the accused,
as an individual, would have without the need for statutory authorisation.
Besides, that right is implied by Article 21(4) of the Statute which gives
to an accused “the following minimum guarantees, in full equality - … (e)
to examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him”. The real issue is therefore not whether the defence
has a right to question a potential witness but whether a potential witness
is obliged to submit to questioning. It does not appear to me that the Tribunal
has power to require a witness to submit to questioning by either side outside
of a hearing in the Tribunal – including a hearing by depositions.
- This conclusion applies also to the alternative course mentioned by the
Appeals Chamber in paragraph 12 of its decision, under which the Appeals Chamber
would subpoena the witness to appear before it but only, so it seems to me,
for the purpose of his being interviewed “in private” by the defence after
the judge who issued the order has explained to him the importance of his
cooperation to assist in producing a just result. The net effect of the subpoena
is to require the witness to submit to the defence interview “in private”;
meanwhile, he needs to be “released by the Tribunal”. That is only an indirect
method of accomplishing the substance of the matter. It may not always be
correct to say that what cannot be done directly cannot be done indirectly,9
but I think that this is the case here.
- It may be said, however, that the overriding interests of justice and the
search for truth require the Tribunal to assist the appellant in his investigations
by issuing subpoenas to the two potential witnesses to attend the defence
interview in Bosnia under threat of penal sanctions. With respect, I do not
- The appellant has been convicted. He proposes to challenge his conviction
by presenting additional evidence. The burden is on him to produce that evidence;
it is not the mission of the Appeals Chamber to find the evidence for him.
There is either such evidence or there is not. If there is none, his case
on the point ends. If there is, he is expected to be in possession of it before
moving the Appeals Chamber.
- Blackstone’s Criminal Practice 2003, para. D24.18, says that “a
statement from the proposed witness (whether taken as a deposition by an examiner10
or served by the appellant) should always be available to the court from an
early stage, and will no doubt assist it at the hearing in deciding whether
to receive oral evidence from the witness”. By way of example, reference may
be made to Rule 3(1)(d) of the Criminal Appeal Rules 1968 (U.K.), under which
the applicant should give notice of his request that the Court of Appeal should
receive evidence. He is to do so in a form 6, which has a box stating: “The
witness can now give the following evidence (which was not given at the trial)”.
The practical situation is illustrated by R. v. James, 2000 Crim. L.R.
571, in which, to cite the summary given in the report, it was held that –
where fresh evidence was tendered from a witness who was said not to
have been available at the trial, it was essential that an affidavit should
be sworn by the defendant’s solicitor describing the circumstances in
which the witness came forward to make the statement and the circumstances
in which the statement was made.
As I understand it, that is to be done at the beginning of the proceedings.
So an appellant who is seeking to overturn his conviction through additional
evidence should have that evidence when he is making application to have
it admitted. I think that is the principle.
- The interests of justice would empower the Appeals Chamber to make a binding
order requiring the State concerned to remove any obstructions that disable
the defence from interviewing any witness that wishes to come forward. But
I am not able to see how the interests of justice empower the Appeals Chamber
to take the further step of issuing a subpoena to the witness “requiring”
him to attend a defence interview and to give information to the defence under
threat of criminal penalties. The idea of the interests of justice is a valuable
one, but it needs to work on recognisable principles. Otherwise, there is
mystery. As Edmund Burke said, speaking “of human laws, … where mystery begins,
- My doubts should have been dispelled by any reference in today’s decision
to any clear instance in domestic or international jurisprudence in which
a court issued a subpoena to a potential witness requiring him to attend a
defence interview under the criminal sanctions threatened by such an instrument.
I am not satisfied that there is any such instance.
- That being so, it appears to me that the correct solution in this case
is to strike a balance between the public interest in securing information
needed for a criminal trial and the public interest in the right to privacy.
The granting of the amended motions can only mean that the potential witnesses
are required under threat of criminal penalties - as distinguished from being
enabled by the removal of possible impediments - both to attend a defence
interview at a location within Bosnia and to answer questions put there by
the defence. In my opinion, that involves movement by the Appeals Chamber
from facilitating to compelling. That movement disturbs the correct balance
between the two important public interests referred to. Beyond the line fixed
by that balance, an invasion of the right to privacy occurs. I believe that
today’s decision represents such an invasion. That is the source of my respectful
Done in both English and French, the English text being authentic.
Dated this 1st day of July 2003
At The Hague
1 - IT-95-14-AR108bis, of 29 October
2 - Judgment on Allegations of Contempt against Prior Counsel,
Milan Vujin, IT-94-1-A-R77, of 31 January 2000.
3 - Order to Republika Srpska, IT-94-1-A, of 2 February 1998.
4 - Judgment on Allegations of Contempt against Prior Counsel,
Milan Vujin, IT-94-1-A-R77, of 31 January 2000, para. 7.
5 - IT-95-14-AR108bis, of 29 October 1997.
6 - Civil Procedure Rule 31.17 (U.K.).
7 - See also the European Convention on Mutual Assistance in
Criminal Matters, 20 April 1959, and the Additional Protocol to the European Convention
on Mutual Assistance in Criminal Matters, 17 March 1978.
8 - ICTR-96-3-A, of 26 May 2003, paras. 467ff.
9 - See Re Ontario Judicature Act 1924  3 D.L.R.
433 at 444, Hodgins, J.A., dissenting.
10 - This is really an extended court proceeding; it does not
visualise the issuance of a subpoena to a potential witness to attend a defence