"Binding Order to the Republika Srpska for the Production of Documents"

12 March 1999
Judge Jorda, Presiding Judge of Trial Chamber I

Introduction

At the pre-trial stage of the Krstic case, the Prosecution submitted an ex parte sealed request for a binding order to the Republic of Bosnia and Herzegovina ordering it to produce several documents. The Presiding Judge considered that binding orders for the production of documents must meet the criteria set out in the Appeals Chamber’s Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 of 29 October 1997 in the Blaskic case (IT-95-14-AR108 bis). Accordingly, the Judge held that such orders must "1) identify specific documents and not broad categories; 2) set out the relevance of such documents to the trial; 3) not be unduly onerous; and 4) give the State sufficient time for compliance". The Presiding Judge further endorsed the requirement set forth in the Appeals Chamber’s Judgement that, as a matter of "sound policy", a party must first seek the voluntary assistance of States before recourse may be had to the mandatory compliance powers pursuant to Article 29 of the Statute.

The Order

The Presiding Judge applied these criteria to the documents required by the Prosecution. He first found that the documents numbered 5 and 15 were relevant insofar as they might determine the application of Articles 7(1) and 7(3) of the Statute to the accused. Furthermore, the Judge noted that the Prosecution had unsuccessfully attempted to obtain the documents through requests for assistance to the Ministry of Defence of Republika Srpska, despite a commitment to co-operation by the latter. The Judge further noted that the Defence Ministry had indicated that the production of these documents would not pose "insurmountable difficulties" but that the co-operation would be a matter of time limits. In this respect, the Judge found that in order to establish a reasonable time period the lengthy correspondence between the Prosecution and Republika Srpska must be taken into account. The Presiding Judge consequently ordered the production of the documents.

As to the required documents numbered 1, 2, 3, 4, 6, 7, 8, 9, 13 and 14, the Presiding Judge found that their relevance to specifying inter alia the appropriate chains of command has been established. He also found that the feasibility of their producting them had been established since the documents were sufficiently identified by date, author and addressee. However, since the Prosecution had not first requested the voluntary production of the documents, the Presiding Judge dismissed the request that the categories be included at this stage and directed the Prosecution to start by seeking voluntary co-operation. For the same reason and because the Prosecution had not established their relevance, the documents numbered 10, 11 and 12 were also not included in the current binding Order.

All requested documents were presumed to be in the possession of the Defence Ministry of Republika Srpska. The Presiding Judge considered Rule 2 of the Rules of Procedure and Evidence according to which the definition of a State not only comprises a Member or non-Member State of the UN but also "a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not". In respect of Republika Srpska’s obligations vis-à-vis the Tribunal, the Judge also considered Articles II(8) and III(2)(b) of the Constitution of the Republic of Bosnia and Herzegovina and Article X of Annex I-A of the Dayton Peace Agreement. In conclusion, the Judge issued a binding Order to Republika Srpska, rather than to the Republic of Bosnia and Herzegovina, requiring the disclosure of the two documents to the Prosecution within a month.

Nonetheless, the Presiding Judge issued a Request to the Republic of Bosnia and Herzegovina for the production of the documents numbered 5 and 15 if they are in its possession or, if not, to provide all necessary assistance to comply with the Prosecution’s request on this point. The legal basis for both the Order and the Request was Article 29 of the Statute and Rule 54 of the Rules of Procedure and Evidence.