1. 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

  2. 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 examined.

  3. 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 the Statute.

  4. 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 Tribunal.

  5. 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.

  6. 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).

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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”.

  14. 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 ”.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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 interview

  20. 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 ”.

  21. 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.

  22. 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”.

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. 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 the Tribunal.

  30. 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.

  31. 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.

  32. 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

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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 see that.

  39. 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.

  40. 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.

  41. 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, justice ends”.

  42. 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.

  43. 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 dissent.


Done in both English and French, the English text being authentic.

Mohamed Shahabuddeen

Dated this 1st day of July 2003
At The Hague
The Netherlands

1 - IT-95-14-AR108bis, of 29 October 1997.
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 [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 interview.