Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 18 July 1997
DECISION ON THE OBJECTION OF THE REPUBLIC OF CROATIA TO THE ISSUANCE OF SUBPOENAE DUCES TECUM
To: The Office of the Prosecutor
Ms. Louise Arbour, Prosecutor Mr. Mark Harmon
Mr. James Crawford
To: The Republic of Croatia
Ambassador Ivan Simonovic
Ambassador Branko Salaj
Mr. David Rivkin
Ms. Katharine Baragona
Mr. Ivo Josipovic
To: The Republic of Bosnia and Herzegovina
Madame Vasvija Vidovic
Ms. Jadranka Slokovic Glumac (on behalf of the Minister of Defence)
To: Defence Counsel for Tihomir Blaskic
Mr. Russell Hayman
Mr. Anto Nobilo
1. Pending before Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia ("International Tribunal") is the question of the validity of a subpoena duces tecum issued by Judge Gabrielle Kirk McDonald to the Republic of Croatia and its Defence Minister, Mr. Gojko Susak. The Government of the Republic of Croatia ("Croatia") challenges the legal power and authority of the International Tribunal to issue this compulsory order to States and high government officials. This Decision addresses the basis of the authority and power of the International Tribunal to issue such orders to States as well as individuals, including high government officials, as well as the duty to comply with such orders. It also discusses the extent of the authority and power and its effect on national security concerns. Not discussed here are the appropriate remedies for non-compliance with such orders, as that issue is not yet ripe for consideration. Prior to addressing the arguments of Croatia, however, a review of the procedural history concerning the manner in which the question arose is necessary.
B. Procedural History
2. Pursuant to a request by the Office of the Prosecutor ("Prosecution"), Judge McDonald issued on 15 January 1997 subpoenae duces tecum to the Republic of Croatia and the Croatian Defence Minister, Mr. Susak, and to Bosnia and Herzegovina and the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna, respectively (Registry Page nos. ("RP") D488-93 and D495-501). The requests for the subpoenas were directed to Judge McDonald, who issued them in her role as the Judge confirming the Indictment against Tihomir Blaskic, the accused in this case (RP D143-55).
3. In a letter dated 10 February 1997 (RP D3261-63), Croatia, through its representative Dr. Sre}ko Jelinic, declared "its readiness for full cooperation under the terms applicable to all states", but challenged the legal authority of the International Tribunal to issue a subpoena duces tecum to a sovereign State. Croatia also contested the naming of a high government official in a request for assistance pursuant to Article 29 of the Statute of the International Tribunal ("Statute") as, in its view, such requests are only properly directed to a State. The letter also stated Croatia's position that, even when assisting the International Tribunal, it maintains the right to tailor its assistance in a manner such that its national security interests are protected.
4. On 14 February 1997 the first hearing was held at which the addressees of the subpoenae duces tecum were requested to appear to answer questions relevant to the production of the subpoenaed documents. A representative of the Government of Bosnia and Herzegovina appeared and explained the steps taken thus far in compliance with the subpoena duces tecum. Croatia did not appear, and Judge McDonald issued an Order requesting the Republic of Croatia and Mr. Susak to produce the documents or, in the event of non-compliance, that a representative of the Ministry of Defence personally appear before Judge McDonald on 19 February 1997 (RP D3883-85)1.
1. Judge McDonald also, on 14 February 1997, issued an Order to Ensure Compliance with a Subpoena Duces Tecum to Bosnia and Herzegovina and Mr. Ante Jelavic (RP D3280-82).
5. Representatives from both Croatia and Bosnia and Herzegovina were present at the 19 February 1997 hearing, after which Judge McDonald suspended the subpoena duces tecum issued to the Republic of Croatia and to Mr. Susak (RP D3303-06) in order to allow the parties to resolve the matter informally and also because of Croatia's challenge to the authority of the International Tribunal to issue such subpoenas. Croatia thereafter provided to the Prosecution some of the requested documents and has informed the International Tribunal that it is in the process of locating other documents. Croatia asserts that many of the remaining documents either do not exist, or that the "unspecific and broad nature of the request" makes it impossible to provide them2.
2. Answer of the Republic of Croatia to the Prosecutor's Brief in Support of Subpoenae Duces Tecum, 11 April 1997 (RP D4731-47) at D4745.
6. Thereafter, on 28 February 1997, counsel for the accused filed a Motion for Issuance of a Subpoena Duces Tecum to the Republic of Bosnia and Herzegovina Compelling the Production of Exculpatory Documents (RP D3342-51), for which an Order Compelling the Production of Documents was subsequently entered (RP D4844-50).
7. Additional hearings in regard to the subpoena duces tecum addressed to Bosnia and Herzegovina and the Custodian of the Records of the Central Archive were held on 24 and 28 February and 7 March 1997. On 7 March 1997 Judge McDonald issued an order directing all parties to file with the Registry, by 1 April 1997, briefs on issues relating to the power of a Judge or Trial Chamber of the International Tribunal to issue subpoenae duces tecum to States and high government officials, and the appropriate remedies for non-compliance (RP D3411-13). The Order listed the following issues as appropriate for discussion: (1) the power of a Judge or Trial Chamber of the International Tribunal to issue a subpoena duces tecum to a sovereign State; (2) the power of a Judge or Trial Chamber to make a request or issue a subpoena duces tecum to a high government official of a State; (3) the appropriate remedies to be taken if there is non-compliance with a subpoena duces tecum or request issued by a Judge or Trial Chamber; and (4) any other issue concerned in this matter. The Order called for briefs to be filed by 11 April and set a hearing for 16 April 1997.
8. Due to the importance of the issue, Judge McDonald ordered, on 14 March 1997, that the matter be heard by the full Trial Chamber II, consisting of herself as Presiding Judge, Judge Elizabeth Odio Benito and Judge Saad Saood Jan (RP D3455-56). She also invited requests for leave to submit amicus curiae briefs on the above-mentioned issues pursuant to Rule 74 of the Rules of Procedure and Evidence of the International Tribunal ("Rules").
9. The Prosecution submitted, on 20 March 1997, a Request in Respect of Issues to be Briefed for the Hearing of 16 April 1997 Relating to Subpoenae Duces Tecum (RP D3469-72) by which it sought to narrow the scope of the issues to be briefed, which request was denied by the Trial Chamber on 27 March 1997 (RP D3612-13). On 21 March 1997 the Prosecution filed a Request for Reinstatement of Subpoena Duces Tecum (RP D3474-79), which was opposed by Croatia (RP D3607-08).
10. On 25 March 1997 Bosnia and Herzegovina submitted its Brief on the Issues (RP D3589-91). On 1 April 1997 the Prosecution, the Minister of Defence of Bosnia and Herzegovina, and Croatia submitted briefs regarding the subpoena duces tecum (RP D3620-3671, D3673-76, and D3682-84, respectively). Counsel for the accused was invited on this same day to participate in the hearing and to file a brief (RP D3614-15). Croatia responded to the Prosecution's Brief on 11 April 1997 (RP D4747-31). Also submitted prior to the 16 April 1997 hearing were amicus curiae briefs from Bartram S. Brown (RP D4539-45); Luigi Condorelli (RP D4515 bis/1-10); the Croatian Association of Criminal Science and Practice (RP D4758 bis/1-9); Marie-José Domestici-Met (RP D4684 bis/1-7); Donald Donovan for the Lawyers Committee for Human Rights (RP D4709-26); J.A Frowein, Georg Nolte, Karin Oellers and Andreas Zimmermann, for the Max Planck Institute for Comparative Public Law and International Law (RP D4547-4607); Annalisa Ciampi and Giorgio Gaja (RP D4502-05); Peter Malanczuk (RP D4608-23); Juristes sans Frontières and Alain Pellet (RP D4538 bis/1-20); Juan-Antonio Carrillo Salcedo (RP D4660-72); Bruno Simma (RP D4763-86); Thomas Warrick, Rochelle Stern and J. Stefan Lupp (RP D4496-4501); and Ruth Wedgwood (RP D4624-59).
11. In a letter dated 15 April 1997, Mr. Jelinic requested, inter alia, that Judge McDonald recuse herself from participating in the 16 April hearing as she was "the judge who issued the order that is here at issue" (RP D4805). On 16 April the Bureau of the International Tribunal, consisting of President Antonio Cassese, Vice-President Adolphus Karibi-Whyte, Judge Claude Jorda and Judge McDonald met to consider this request. After stating her position on the issue, Judge McDonald retired and the Bureau considered the request in her absence. The Bureau concluded that the impartiality of Judge McDonald was in no way hindered by her earlier participation in the issuing of the subpoena and that she was therefore not precluded by Rule 15(A) of the Rules from further participation (RP D4814-13).
12. At the 16 April 1997 hearing, which continued on 17 April 1997, the Prosecution, Croatia, Bosnia and Herzegovina, a representative of its Minister of Defence, Mr. Ante Jelavic, and counsel for the accused, Tihomir Blaskic, as well as several of those who submitted amicus curiae briefs3, presented oral arguments. Croatia, on 8 May 1997, submitted, with leave of the Trial Chamber, a final written Brief in Opposition to the Subpoena Duces Tecum (RP D4874-4937) ("Croatia's Final Brief"), to which the Prosecution responded on 28 May 1997 (RP D6203-12).
3. Those appearing included Alain Pellet, Luigi Condorelli, Vladimir Lujbanovic on behalf of the Croatian Association of Criminal Science and Practice, Andreas Zimmermann for the Max-Planck-Institute, Ruth Wedgwood, Peter Malanczuk, and Donald Donovan for the Lawyers' Committee for Human Rights.
13. After due consideration of the written briefs and oral arguments, including those of the amicus curiae, the Trial Chamber issues the following Decision.
A. Power to Issue Binding Orders to States
14. Croatia has challenged the capacity of the International Tribunal to address subpoenae duces tecum to sovereign States. The Trial Chamber considers, however, that the heart of this dispute in fact concerns the International Tribunal's authority and power to issue binding compulsory orders, rather than the particular nomenclature used for such orders. A discussion of whether or not the International Tribunal inherently possesses this power or has been expressly granted this authority is, therefore, required. Only after such inquiry can the Trial Chamber determine whether a subpoena is an appropriate mechanism available to the International Tribunal. An examination of the nature of the International Tribunal, its purposes and the circumstances surrounding its establishment, is therefore necessary, for this impacts upon the subsequent examination of its inherent and express powers.
1. Nature and Purposes of the International Tribunal
15. The decision of the United Nations Security Council to establish an international tribunal was a response to an ongoing armed conflict, with attendant widely reported atrocities which violated fundamental norms of international humanitarian law, in the former Yugoslavia. Beginning in 1991, the Security Council passed a series of resolutions in an attempt to resolve the conflict and bring to a halt these violations. Resolution 713, of 25 September 1991, initially determined that the situation in Yugoslavia constituted a threat to international peace and security. Resolutions 764 and 771, adopted in July and August 1992 respectively, then reaffirmed the obligation on the parties to the conflict to abide by international humanitarian law, demanded that they cease and desist from all breaches of this law, and called upon States and international organizations to collate substantiated information in their possession of such violations. In addition, pursuant to resolution 780 of 6 October 1992, a Commission of Experts was set up to examine and analyse this information gathered by States and international organizations and also to conduct its own investigations.
16. A preparatory investigation of serious violations of international humanitarian law was undertaken by the Commission of Experts, which produced an interim report, stating:
Impetus for such a tribunal also came from other sources, such as the reports presented by the Special Rapporteur on Human Rights, Tadeusz Mazowiecki5, and the Conference for Security and Cooperation in Europe which, through its Moscow Human Dimension Mechanism, had appointed Rapporteurs to investigate reports of atrocities and make recommendations6.
4 U.N. Doc. S/25274, Annex 1, para. 74.
5 Reports on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1992/S-1/1 of 14 August 1992. U.N. Docs. E/CN.4/1992/S-1/9, E/CN.4/1992/S-1/10, E/CN.4/1993/50.
6 See Proposal for an International War Crimes Tribunal for the Former Yugoslavia By Rapporteurs (Corell-T¸rk-Thune) under the CSCE Moscow Human Dimension Mechanism to Bosnia-Herzegovina and Croatia, 9 February 1993, reprinted in Michael P. Scharf and Virginia Morris - An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (hereafter "Insider's Guide") (vol. II) (1995) at p. 211.
17. By resolution 808, adopted on 22 February 1993, the Security Council decided "that an International Tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991". This resolution also requested that the United Nations Secretary-General submit to the Security Council a report on the matter, including specific proposals for such a tribunal and taking into account the suggestions of States. The Secretary-General presented his report on 3 May 19937, incorporating a draft Statute for the tribunal, of 34 articles. The Security Council subsequently, by resolution 827, a resolution under Chapter VII of the United Nations Charter, approved the Secretary-General's Report and adopted the Statute, finding that the establishment of an international criminal tribunal "will contribute to ensuring that such violations are halted and effectively redressed"8.
7 Report of the Secretary-General Pursuant to Paragraph 2 of
the Security Council resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993 (hereafter
8 S/RES/827 (1993). Given that the legitimacy of the establishment of the International Tribunal by such a method is not here in dispute, it is not necessary to discuss this issue further. In addition, the range of measures envisaged under Chapter VII and the establishment of the International Tribunal as a Chapter VII mechanism have already been addressed by the Appeals Chamber: see The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (IT-94-1-AR72, 2 Oct. 1995, RP D6413-D6491) (hereafter "Jurisdiction Decision"). The Appeals Chamber found that Article 41 of the Charter provides a sufficient basis for the establishment of the International Tribunal and the Security Council may legitimately establish a subsidiary organ with judicial powers.
18. The Security Council, on behalf of all Member States, can adopt binding measures to address threats to the peace, breaches of the peace or acts of aggression9. Since 1945 it has exercised this mandate in a number of creative ways, but it was not until 1993 that it chose to set up an international criminal tribunal, as a subsidiary organ. Such resort to a judicial institution places emphasis on the individual responsibility of those committing violations of international humanitarian law10. In the especially complex circumstances of the conflict in the former Yugoslavia, the international community deemed a judicial response capable of achieving the goals of peace and reconciliation.
9 United Nations Charter, Arts. 24 and 25 and Ch. VII.
10 Security Council resolutions, throughout the conflict, had emphasized the individual responsibility of persons perpetrating such crimes. See, e.g., resolution 764, 13 July 1992, resolution 771, 13 August 1992, resolution 780, 6 October 1992, resolution 787, 16 November 1992.
19. The extent of the powers that the Security Council can, intended to and, in fact, did confer upon this special subsidiary organ is relevant to the present Decision. The United Nations Charter envisages that the principal organs of the Organization might create such subsidiary organs "as may be found necessary"11. The Security Council in particular, by virtue of Article 29, is granted the power to establish subsidiary organs which it deems necessary for the performance of its functions. Even a cursory examination of the practice of the United Nations' principal organs and the academic discussion of Articles 7 and 29 of the Charter reveals that the concept of a "subsidiary organ" is flexible and amorphous12. This is necessarily so in relation to an international organization of an organic nature and possessed of a broad mandate. The view has been expressed that " '[s]ubsidiary organs' are actually instrumentalities at the disposal of international organizations: devices which respond ultimately to the principles of functional necessity, effectiveness, specialization and decentralization"13.
11 Article 7(2).
12 See Bernardez - Subsidiary Organs, in Dupuy (ed) - Manuel sur les organisations internationales (1988), at p. 100 (hereafter "Bernardez"). Also, Goodrich, Hambro and Simons - Charter of the United Nations: Commentary and Documents (3rd ed. 1969), and Simma (ed.) - The Charter of the United Nations: A Commentary (1994) (hereafter "Simma Commentary").
13 Bernardez at p. 144.
20. Thus, each subsidiary organ established within the United Nations system requires evaluation in its own particular context. In his Commentary to the United Nations Charter, Bruno Simma observes that
14 Simma Commentary at p. 482.
15 Id. at p. 486.
21. It is well recognized that the functions entrusted to subsidiary organs cannot exceed the competence and functions of the Organization itself. Despite such limitation on their actions, it is equally important to note their independent nature16. Simma further states that:
16 See Bernardez at p.130.
17 Simma Commentary at p. 196.
22. As such a subsidiary organ, the International Tribunal is a creature of its parent body, but it must also be possessed of a large degree of independence in order to constitute a truly separate institution and, in order to be able to fulfil properly its judicial mandate, free from political considerations18. The Secretary-General's Report, in confirmation of this, states that:
18 The Appeals Chamber has, in the Jurisdiction Decision,
confirmed the legitimacy of the establishment of the International Tribunal as a
subsidiary organ of the United Nations, performing a judicial function which the Security
Council does not itself possess, but which was deemed necessary for the performance of its
function to maintain international peace and security. See paras. 37-38.
19 Secretary-General's Report at para. 28.
23. In sum, the International Tribunal is an independent international court created under the terms of Chapter VII of the United Nations Charter to bring justice, to contribute to the restoration and maintenance of peace in the former Yugoslavia and to deter further violations of international humanitarian law. Its establishment was the culmination of a progression of thought and discussion on how to achieve these aims effectively. As a subsidiary organ of a judicial nature, it cannot be overemphasized that a fundamental prerequisite for its fair and effective functioning is its capacity to act autonomously. The Security Council does not perform judicial functions, although it has the authority to establish a judicial body20. This serves to illustrate that a subsidiary organ is not an integral part of its creator but rather a satellite of it, complete and of independent character.
20 See Jurisdiction Decision at para. 36.
2. Inherent Powers
24. In support of its position that the International Tribunal may issue a subpoena duces tecum to a State, the Prosecution asserts that the International Tribunal has implied and inherent powers necessary or essential for the effective performance of its functions. It contends that a teleological method of interpretation of the Statute is appropriate and supported by the Appeals Chamber in its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadic Case ("Jurisdiction Decision") and the jurisprudence of other international tribunals21. Thus, the International Tribunal should be deemed to have those powers which, although not expressly conferred, arise by necessary implication as being essential to the performance of its duties. The Prosecution then submits that the power to require the production of evidence is part of the inherent powers of a judicial organ, as such powers are necessary and essential for the effective administration of justice22. During its oral submissions, the Prosecution emphasized that, as the Security Council clearly intended that the International Tribunal would effectively discharge the responsibility assigned to it, the principle of effectiveness must govern whenever there arises a question of its competence in a particular area.
21 See Prosecutor's Brief In Support of Subpoena
Duces Tecum, 1 April 1997 (RP D3620-D3671) (hereafter "Prosecution Brief")
at p. 9. Brownlie describes the teleological principle thus: "Judicial interpretation
may lead to expansion of the competence of an organization if resort be had to the
teleological principle according to which action in accordance to the stated purposes of
an organization is intra vires or at least is presumed to be." Brownlie - Principles
of Public International Law, (4th ed. 1990) at p. 690. Note, however, the Jurisdiction
Decision, in which the Appeals Chamber examined different methods of interpretation,
including the teleological approach, but nevertheless found that Article 2 of the Statute
applies only to international armed conflicts. This appears to rely more on a literal
interpretation, rather than a teleological one. Judge Georges Abi-Saab, in his Separate
Opinion, himself adopted the teleological approach.
22 See Prosecution Brief at p. 12.
25. Croatia, however, argues that the Prosecution here seeks a form of compulsory process that is unprecedented in international law. It contends that where such a departure from the general practice is intended, the constitutive instrument - namely the Statute - must provide so expressly. That its challenge is not founded on a preclusion under general principles of international law, but rather involves a statutory limit of authority, is made evident by its concession during oral submissions, upon questioning from the Bench, that there would be no violation of international law if the word "subpoena" were simply inserted into the Statute23.
23 See Transcript Page ("TP") 416 (Thursday, 17 April 1997).
26. The absence of an express grant of power, however, does not negate the existence of such a power if it can be considered to be inherent and implied. The question of whether an international organization may exercise powers which have not been expressly conferred upon it has been previously considered by the International Court of Justice ("ICJ"). In the Reparations for Injuries Suffered in the Service of the United Nations case24, the court found, inter alia, that the United Nations has the capacity to bring an international claim against a government responsible for causing injury to an agent of that Organization. Such capacity is not provided for in the Charter of the United Nations and, the court found, is dependent upon a measure of international personality being ascribed to the United Nations25. The court stated that "[t]hroughout its history, the development of international law has been influenced by the requirements of international life. . . .[Thus] to achieve [the purposes of the United Nations] the attribution of international personality is indispensable"26. The court took a teleological approach and held that
It then affirmed the legitimacy of the doctrine of implied powers and stated that,
It concluded that
24 ICJ Rep. (1949) p.171 (hereafter "Reparations Case").
25 For discussion of this case and the doctrine of implied powers, see Rama-Montaldo - International Legal Personality and Implied Powers of International Organizations, 44 Brit. Ybk Int'l L. 111 (1970) (hereafter "Rama-Montaldo").
Reparations Case at p. 178.
27 Id. at p. 180.
28 Id. at p. 182. The ICJ noted that the Permanent Court of International Justice had applied the same principle of powers by necessary implication to the International Labour Organization, in its Advisory Opinion Number 13, of 23 July 1926 (Ser. B,. No. 13, p. 18).
29 Id. at p. 184. Judge Hackworth registered his dissent from the majority in this case. He concurred with the court's conclusion that the United Nations has the capacity to bring an international claim, because this is a proper application of the implied powers doctrine. He disagreed with the majority in that he considered the Organization to have no capacity to become a sponsor of claims on behalf of its employees because there is no necessity for the exercise of such a power.
27. In the Effects of Awards of Compensation made by the United Nations Administrative Tribunal case30, the ICJ considered whether the General Assembly of the United Nations was legally entitled to refuse to give effect to an award of compensation made by the Administrative Tribunal. In the course of its examination of this question, the court determined that the Charter of the United Nations gives the General Assembly the power to establish a tribunal competent to render judgments binding on the United Nations. No such express provision appears in the Charter and the court, therefore, citing the Reparations Case, enquired whether there was an implied power to establish a judicial tribunal to adjudicate upon disputes arising out of staff contracts of service. It found that
30 Advisory Opinion of 13 July 1954, ICJ Rep. (1954) p. 47
(hereafter "Effects of Awards Case").
31 Effects of Awards Case at p. 57.
28. The court concluded that the awards determined by the tribunal were binding on the General Assembly, even though there was no express provision in its statute as to their intended effect. It recognized that this subsidiary organ was an "independent and truly judicial body pronouncing final judgments . . . within the limited field of its functions"32.
32 Id. at p. 53.
29. Furthermore, in the Certain Expenses of the United Nations case,33 the ICJ effected a negative presumption that if a constitutive instrument does not deny a power, the relevant organization is to have it. It found that
When the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.35
In finding that the International Tribunal has the competence to determine its own jurisdiction, the Appeals Chamber has adopted a similar approach. It recognized that such competence is part of the incidental or inherent jurisdiction of any judicial tribunal and, in particular, "[i]t is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents . . . although this is often done".36
33 Certain Expenses of the United Nations, ICJ Rep.
(1962), p. 151.
34 Id. at p. 164.
35 Id. at p. 167.
36 Jurisdiction Decision at para. 18.
30. The Trial Chamber concludes that the power of the International Tribunal to issue a subpoena duces tecum to a State may similarly be implied if it is necessary in order to fulfil its fundamental purposes and to achieve its effective functioning37.
37 See amicus brief by Juan Antonio Carillo Salcedo (hereafter "Salcedo Brief") at p. 4. See also Rama-Montaldo, who warns that "this doctrine is not an open door to an unlimited interpretation of the powers of an organization" but must be limited by the criterion of necessity (p. 148). The proposition that the International Tribunal must have certain implied as well as express powers has also been recognized in the Insider's Guide (vol. I) at p. 193.
31. The International Tribunal is, primarily, a criminal judicial institution, with jurisdiction over individuals charged with the most serious offences. It is imperative that a Trial Chamber, which must ultimately make a finding of the guilt or innocence of such individuals and impose the appropriate sentence as penalty, has all the relevant evidence before it when making its decisions. It is noteworthy in this regard that, in United States v. Nixon,38 the Supreme Court of the United States of America stated that:
38 418 U.S. 683, at p. 709 (Supreme Ct. 1974).
39 Id. at pp. 230-231.
32. Article 20 of the Statute provides, inter alia, that it is for the Trial Chamber to ensure that a trial is fair and expeditious. Given that the Rules were adopted in order to give practical effect to the principles espoused in the Statute, it is reasonable to expect that they should contain provisions intended to secure this particular aim. The use of the words "necessary . . . for the preparation or conduct of the trial" in Rule 5440 must be interpreted in this light. Hence, an order or subpoena for the production of evidence is appropriate where the fairness of the trial so requires. In addition, if it could not use the method of compulsion, the Trial Chamber would be unable to ensure that the trial proceed expeditiously. Furthermore, Article 21, paragraph 4(e) provides that the accused shall be entitled "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". If third parties cannot be compelled to produce documents in their possession, the Trial Chamber would be unable to guarantee the rights of the accused.
40 Reproduced in full at para. 46.
33. The Prosecution, in its oral submission, emphasized the different consequences which would result from pre- and post-indictment non-compliance with orders. The Trial Chamber considers, however, that the duty of States, government officials and individuals to comply with orders from the International Tribunal is the same, regardless of the stage of the proceedings at which the particular order is issued41. The impact of non-compliance on the ability of the Trial Chamber to afford a fair trial and recognize the rights of the accused is, of course, critical after the indictment has been confirmed and the accused person transferred to the International Tribunal.
41 See Section II.C, infra, regarding the duty to comply with orders.
34. The International Tribunal is also an international institution, whose jurisdiction - ratione materiae, ratione temporis and ratione loci - is such that the tangible evidence required for proof of the guilt or innocence of those persons appearing before it will often be in the possession of States. Many of the crimes listed in Articles 2, 3 and 5 of the Statute relate to the conduct of military operations and therefore the records of those operations may constitute vital evidence. The fact that these are government documents should not automatically bar their production42.
42 See amicus brief by Ruth Wedgwood (hereafter "Wedgwood Brief"). During her oral presentation, Wedgwood emphasized the fact that when a case concerns command responsibility, the nature of much of the evidence means that it will most likely be in the possession of States, from whom production must be ensured.
35. By virtue of Article 9, paragraph 2, of the Statute, the International Tribunal has primacy over national courts. While this Article does not provide explicitly that States are required to supply documents to the International Tribunal when it is exercising this primacy, States must comply with a request for deferral43. The statutory primacy of the International Tribunal would be meaningless if such requests did not impose a binding obligation on States. In addition, if a domestic court were to prosecute a person within its jurisdiction for violations of international humanitarian law, it would have available all the tools of that national system necessary to guarantee that the prosecution and defence were conducted effectively and its verdict fairly reached. Given that it was envisaged that the International Tribunal would have concurrent jurisdiction with, and primacy over, national courts, its capacity to obtain all the necessary documents for the adjudication of a case cannot be less than that of these courts. An examination of a number of domestic legal systems reveals that, whatever the particular mechanisms utilized, they do provide for the production of all relevant evidence.
43 See Rules 10 and 11.
36. In the United States, a subpoena is a tool which is widely used to compel the attendance of a witness at criminal proceedings. Rule 17 of the Federal Rules of Criminal Procedure 1995 specifically provides for this mechanism, which may also command that the witness bring with him or her, for production, books, documents or other objects designated in the subpoena. Should a person fail to obey a subpoena addressed to them, without adequate excuse, this may be deemed contempt of court. The term is also utilized in the Canadian Criminal Code, which provides that a subpoena may be issued by a judge or court, directing the attendance of a witness and the bringing of any thing relating to the subject-matter of the proceedings44. In England the terminology used is that of a summons. There, section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 stipulates that a witness may be summoned to appear before the Crown Court in a criminal proceeding and to give evidence or produce any document or thing specified in the summons.
44 Canadian Criminal Code, ss. 698-700. Reprinted in Martin's Annual Criminal Code, 1996.
37. In Scotland, the provisions of the Criminal Procedure Act 1995 apply. In that jurisdiction the relevant concept is the citation of a witness. Despite this difference in form, when a witness receives his or her citation to appear, it includes notice that a penalty will be imposed should he or she fail to attend on the requisite date. The Code of Criminal Procedure of Pakistan also empowers a court to issue a summons to a person in possession of a document or thing necessary or desirable for the purposes of an investigation, inquiry, trial or other proceeding, requiring his or her attendance and the production of the document or thing45. If such a summons is disobeyed, the court may not only issue a search warrant under this section, but also punish the person for contempt and impose a fine or prison sentence46.
45 The Code of Criminal Procedure (Act V of 1898, as
amended), s. 94. Reprinted by Mahmood and Shaukat (eds.) 1995.
46 Pakistan Penal Code (Act XLV of 1860), s. 175.
38. In the civil law tradition, the Yugoslav Law on Criminal Procedure of 1977 provided that articles which are required as evidence in criminal proceedings may be confiscated and turned over to the court. Persons in possession of such items who refuse to submit them to the court may be subject to a fine or imprisonment47. Furthermore, a witness can be summoned by means of a written subpoena which must specify the consequences of an unjustified failure to appear48. If he or she fails to appear, an order can be issued to compel him to do so, and he may also be fined49. In Costa Rica also, a judge may order the production of any items connected to the commission of a crime, or that have been seized for use in evidence50.
47 Yugoslav Law on Criminal Procedure 1977, art. 211.
48 Id. art. 230.
49 Id. art. 237.
50 CÛdigo de Procedimientos Penales, art. 216. Reprinted in CÛdigo de Procedimientos Penales: anotado, concordado y con jurisprudencia, Dobles Ovares (ed.) 1994.
39. Under the French system, the investigating judge may call all persons whose statements might be useful to appear before him51. Coercive measures may be applied to those who do not appear or who refuse to answer the questions put to them52. In order to obtain items which are useful to establish the truth, an investigating judge may himself carry out, or prescribe that a commission (une commission rogatoire) carry out, searches and seizures of property53. Also in Germany, a witness may be summoned to appear before a court and such summons refers to the legal consequences which will be incurred if the witness fails to appear54. Thus, witnesses are obliged to testify and are subject to coercive measures should they refuse to do so. Premises may be searched and objects of proof seized at the order of a judge55. Similarly, the Code of Criminal Procedure applicable in Spain provides that a person may be judicially summoned. Non-appearance, or refusal to disclose information about which he or she has been asked, results in a fine or charge of contempt of court56. Furthermore, all persons are under the obligation to produce objects or documents that are suspected to relate to the case. Once again, should anyone refuse such production, they may be subject to a fine or charged with contempt of court in some cases57.
51 Code de ProcÈdure PÈnale, art. 101.
52 Id. art. 109.
53 Id. art. 94.
54 Strafprozessordnung, ss. 48 and 51. Reprinted by Kleinknecht and Meyer (eds.) 1995.
55 Id. Chapter VIII.
56 Ley de Enjuiciamiento Criminal, art. 420.
57 57. Id. art. 575.
40. From this it is clear that a number of national legal systems, while not perhaps using the term "subpoena", have provisions granting criminal courts the power to compel the attendance of a witness and the handing over of documents and other evidence. As mentioned above, the jurisdiction of the International Tribunal dictates that the evidence which it requires will often be in the form of government documents. However, since the International Tribunal is not a national court, it relies on the assistance of States (which will always be non-parties to the proceedings) in order to be able to function at any effective level, in particular in the gathering of evidence. A Judge or Trial Chamber must, therefore, have the authority to oblige States to submit whatever material is necessary to evaluate the case effectively and fairly58.
58 See amicus brief by Bruno Simma (hereafter "Simma Brief") at p. 4. See also amicus brief by the Lawyers' Committee for Human Rights (hereafter "Lawyers' Committee Brief") at p. 6.
41. In the Reparations Case, the ICJ emphasized the functions and goals of the United Nations and concluded that it "could not carry out the intentions of its founders if it was devoid of international personality"59. Thus, taking into consideration its nature and purposes, the Trial Chamber finds that the International Tribunal has the inherent power to compel the production of documents necessary for a proper execution of its judicial function. To hold to the contrary would prevent the International Tribunal from effectively redressing serious violations of international humanitarian law, its very raison d' être.
59 Reparations Case, at p. 179.
3. Express Power
42. Having established that the effective functioning of the International Tribunal requires that it have the power to issue binding orders to States for the production of all necessary evidence, an examination of the provisions in the Statute and Rules demonstrates that express authority is given to the International Tribunal to direct mandatory orders to States.
43. Article 1 of the Statute, articulating the competence of the International Tribunal, provides that it "shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute". It is clear from the statements of members of the Security Council voting on resolutions 808 and 827, and from the Secretary-General's Report60, that the International Tribunal was intended to apply existing international law and not to create new norms. However, it is also evident from these documents that this limitation was solely concerned with the subject-matter jurisdiction of the International Tribunal. In other words, the International Tribunal is not empowered to "create" the crimes over which it has jurisdiction, but simply to prosecute serious violations of existing customary international humanitarian law. Article 15 of the Statute is not, however, so constrained. It reads:
The Judges are empowered to adopt rules of procedure and evidence and, while these cannot go beyond the boundaries of the International Tribunal's jurisdiction, a judicial body which combines elements of common and civil law traditions will naturally create procedures for which there is no analogue.
60 See Secretary-General's Report at para. 34. See also statement of the Representative of Venezuela, statement of the Representative of the United Kingdom and statement of the Representative of Brazil, in the provisional Verbatim Record of the Three Thousand and Two Hundred and Seventeenth Meeting of the Security Council (S/PV.3217), 25 May 1993.
44. A literal reading of the relevant provisions of the Statute and Rules reveals the broad nature of the powers available to the International Tribunal in order to carry out its judicial functions. Article 18 of the Statute reads in part:
2. The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.
45. Article 19, entitled "Review of the indictment", then provides in relevant part:
Article 29, entitled "Cooperation and judicial assistance", subsequently
reinforces the proposition that the International Tribunal has the ability to render
binding orders, by requiring that States comply with any order issued by a Trial Chamber.
46. The issuance of a subpoena duces tecum is expressly authorized in the Rules. Rule 54 reads:
47. The word "subpoenas" was inserted into Rule 54 in January 1995, when the Rules were revised at the Fifth plenary session. The Second Annual Report states that this was "to improve the clarity, consistency and completeness of the rules"61. Given that the word "subpoenas" appears beside orders, summonses, warrants and transfer orders, it would seem that Rule 54 was intended to confer a general power.
61 Second Annual Report of the International Tribunal, 23 August 1995 ( A/50/365), at para. 21, fn. 6.
48. It is the contention of Croatia that the Security Council only intended that individuals could be the subjects of orders from the International Tribunal, and not States. The duty upon States, it argues, is discharged upon their due execution. According to Croatia, the competence of the International Tribunal, in Article 1 of the Statute, does not extend to States and, therefore, to issue a subpoena to a State would break with accepted norms of international law and constitute an illegitimate extension of the International Tribunal's mandate.
49. Although the International Tribunal's function is the prosecution of persons responsible for serious violations of international humanitarian law within a limited geographical and temporal scope, this does not mean that it cannot address itself incidentally to others in the fulfilment of this task. For example, under Rule 77, a Trial Chamber can find a witness in contempt of court, even though that witness is not a person responsible for serious violations of international humanitarian law. Therefore, by addressing an order to a State, the International Tribunal is not seeking to extend its competence beyond that laid down in the Statute. It is not attributing criminal responsibility to the State, but merely exercising its necessary incidental judicial functions in fulfilment of its purpose. Such incidental functions have been recognized by the Appeals Chamber in the Jurisdiction Decision62.
62 "[T]he jurisdiction of the International Tribunal, which is defined in the middle sentence and described in the last sentence as "the full extent of the competence of the International Tribunal", is not, in fact, so. It is what is termed in international law "original" or "primary" and sometimes "substantive" jurisdiction. But it does not include the "incidental" or "inherent" jurisdiction which derives automatically from the exercise of the judicial function". Jurisdiction Decision at para. 14.
50. There can be no doubt that the Security Council intended that a Judge or Trial Chamber would issue orders to States, should such prove necessary. The very fact that there is an express duty upon States to comply with orders of the International Tribunal in Article 29 and in paragraph 4 of resolution 82763 confirms that orders to States were envisaged. The Secretary-General's Report, in its discussion of cooperation and judicial assistance, states that
It is indisputable from this that the Secretary-General considered the International Tribunal to be a body capable of issuing binding orders to sovereign States.65
63 Discussed in Section II.C.1, infra.
64 Secretary-General's Report at para. 126.
65 See amicus brief by the Max-Planck-Institute for Comparative Public Law and International Law (hereafter "Max-Planck-Institute Brief") at p. 10. Malanczuk, however, asserts that this statement of the Secretary-General is misleading because the Security Council did not transfer coercive enforcement powers to the International Tribunal. (See amicus brief by Peter Malanczuk, hereafter "Malanczuk Brief" at p. 8). Malanczuk argued orally that resolution 827 did not adopt the same language as the Secretary-General's Report. This latter point appears misapprehended, as resolution 827 did adopt the Report in its entirety. Thus, it would seem that the Security Council, without stating so explicitly in the Statute, accepted the view that it is the application of an enforcement measure whenever an order is issued by a Trial Chamber for the surrender or transfer of persons.
51. The argument that a State cannot be ordered to perform a particular act is simply incorrect66. The Security Council itself regularly orders that specific action be taken, such as, for example, resolution 771, where it demanded that all parties to the conflict in the former Yugoslavia cease and desist from breaches of international humanitarian law67. The mandatory terms of this resolution, and many others, indicate that the Security Council has the power to compel the behaviour that it desires. All States, upon exercising their sovereign prerogative in joining the United Nations, recognize the primary authority of the Security Council in relation to matters of international peace and security. As has been previously noted, while the Security Council has not delegated its functions to the International Tribunal, it has created an independent subsidiary organ of a specialized nature. An order within the International Tribunal's mandate, addressed to a State, as with any compulsory action taken by the Security Council itself, in no way offends the sovereignty of that State. It is a logical corollary of the special nature and functions of the International Tribunal that it has the ability to order States to take action that falls within its given sphere of competence.
66 The Max-Planck-Institute Brief claims that the national
laws on cooperation indicate that there is no general principle prohibiting orders
addressed directly to States. At p. 13.
67 S/RES/771 (1992).
4. Power to Obtain Evidence as Compared with Other International
52. There has been some discussion in the amicus briefs and the submissions of Croatia of the powers of various other international tribunals to compel the production of evidence. While it cannot be overemphasized that the International Tribunal is fundamentally different from those other bodies, since it possesses mandatory authority by virtue of Chapter VII of the United Nations Charter, it is useful to examine briefly the provisions of their constitutive instruments in order to determine whether the assertion of such a power is an anathema in international law.
53. Article 49 of the Statute of the International Court of Justice provides that the court may call upon the agents of the State parties to a dispute before it to produce any document or supply explanations. The rules of the ICJ further grant it the power to request the parties to bring witnesses or call for the production of any other evidence68. There is, therefore, no doubt that the ICJ can instruct States to provide documents and, should they not do so, it can take formal note of this fact. The sanction for non-compliance is thus the negative inference that may be drawn69. Sandifer states that
Thus, Croatia is correct in its assertion that the ICJ has no power to compel the attendance of witnesses or production of documents71. However, since States are parties to matters before the ICJ, it is in their interests to comply, even with a 'request', in order to advance their claim fully and avoid the negative inference that may be drawn from non-compliance.
68 68. Art. 62(1) of the Rules of the court.
69 In the Corfu Channel Case, Judgment of 9 April 1949 (ICJ Rep. 1949) (hereafter "Corfu Channel Case"), the United Kingdom refused to provide documentation requested by the court and no negative inference was drawn. Croatia seeks to use this case to demonstrate the powerlessness of the court in the face of a negative response to its requests. However, this case concerned the production of documents against which the United Kingdom successfully raised the privilege of national security. The national security exception to the requirement of production is further addressed below and does not detract from the more general rule. See discussion of this and other cases in Sandifer - Evidence before International Tribunals (Revised edition, 1975) (hereafter "Sandifer") at pp. 147-154.
70 Sandifer at pp. 116-117 (footnotes omitted).
71 See Croatia's Final Brief at p. 4, quoting from Fitzmaurice and Highet.
54. Parties to a dispute before the European Court of Justice are required to produce all documents and information which the court considers desirable. However, article 21 of the statute of that court stipulates that member States and institutions who are non-parties can also be required to supply all information which the court considers necessary72. This therefore contemplates that State non-parties to the proceedings can be addressed by the court in the course of its adjudication of the matter before it. The European Convention of Human Rights ("ECHR") grants the power to the European Commission of Human Rights to investigate any petition which it has accepted. For the effective conduct of this investigation, States must provide all the necessary facilities, including the furnishing of all necessary documents73. In the case of Ireland v. United Kingdom, the European Court of Human Rights emphasized "the fundamental importance of the principle . . . that the Contracting States have a duty to cooperate with the Convention institutions"74. Similarly, by virtue of the American Convention on Human Rights75, the Inter-American Commission on Human Rights may request the States concerned to furnish it with all the facilities and information necessary for its investigation into a petition76.
72 Note that Article 24 of the Statute of the European Court
of Justice also stipulates that, with regard to defaulting witnesses, the court has the
powers generally granted to courts and tribunals, and may impose pecuniary penalties.
73 ECHR, Art. 28. The ECHR has been modified by the conclusion of Protocol 11 in 1994, although this has not yet come into effect. This removes the role of the Commission, but grants the Court the same power to undertake an investigation, for the effective conduct of which the parties must provide the necessary facilities.
74 Ireland v. UK, Judgment of 18 January 1978, ser. A, No.25, 60, at para.148.
75 American Convention on Human Rights, art. 48.
76 See Fairen Garbi and Solis Corrales Case (Merits), 15 March 1989, I.-A. Court H.R., Ser. C., Decisions and Judgments, No.6 (1990) at para.160.
55. The Iran-United States Claims Tribunal, established pursuant to the Algiers Accords, also may require that parties to proceedings produce documents necessary for a just determination of a case, and has done so in a number of instances77. If a party fails to provide the desired documentary evidence, without showing sufficient cause, the tribunal may make its award on the basis of the evidence before it78. Thus, once again, this tribunal uses the tool of negative inference in order to obtain evidence which it deems necessary79.
77 See Rules of Procedure of the Iran-United States
Claims Tribunal, adopted 3 May 1983 (incorporating UNCITRAL Rules) (hereafter
"Iran-US Claims Tribunal Rules"), art. 24(3). See also
Max-Planck-Institute Brief at p. 15 and fn. 43.
78 Iran-US Claims Tribunal Rules, art. 28(3).
79 See, e.g., Ultrasystems Incorporated and Islamic Republic of Iran, et al., Award No. 27-84-3 (4 March 1983), reprinted in 2 Iran-U.S. C.T.R. 114, 115 (1983), the Concurring Opinion of R. Mosk - "When a party... has access to relevant evidence, the Tribunal is authorized to draw adverse inferences from the failure of that party to produce such evidence." See also, Selby, Fact-Finding before the Iran-United States Claims Tribunal: A View from the Trenches, in Lillich (ed.) Fact-Finding before International Tribunals (1991) (hereafter "Lillich"), p. 135 "to all appearances the Tribunal has attached significance to the failure to produce, as shifting to some degree, the burden of proof" (at p. 140).
56. It is clear from the preceding examination that it is a familiar concept that States can be addressed by international tribunals for the purpose of production of documents in their possession, when such are necessary for an international judicial determination. While these other international tribunals cannot compel this production by States, they do have as an inducement the power to draw a negative inference. This illustrates the fundamental difference between an international tribunal adjudicating a dispute between States, or where a State is one of the parties against whom an allegation has been made, and the circumstances in which the International Tribunal operates80. States are not parties before the International Tribunal and yet it must rely on their assistance and cooperation in order to fulfil its functions. Should such assistance not be forthcoming and important documents not be provided, the interests of the recalcitrant State are not automatically harmed. The International Tribunal therefore requires a power different and broader in scope than those of the above-mentioned bodies81. In addition, while not parties to the proceedings, States are involved with the International Tribunal by virtue of their duty of cooperation with it82. Indeed, the effective functioning of the International Tribunal in large measure depends upon their support.
80 See Simma Brief at p. 3.
81 By virtue of Rule 98, a Trial Chamber may summon additional witnesses, should it so desire. This demonstrates once again that the Chamber can ensure that all the necessary evidence is before it when it reaches its decision.
82 See Section II.C.1, infra.
57. Further demonstration of the fact that the International Tribunal has, by necessity arising from its dual international and criminal mandate, powers extending beyond those of the above mentioned bodies, is provided by the fact that Article 26 of the International Law Commission Draft Statute for an International Criminal Court ("ILC Draft Statute")83 grants to the Prosecutor the authority to request the attendance of witnesses and collect documentary and other evidence, as well as seeking the cooperation of any State. In addition, the Article provides that "[t]he Presidency may, at the request of the Prosecutor, issue such subpoenas and warrants as may be required for the purposes of an investigation, including a warrant under article 28(1) for the provisional arrest of a suspect" (emphasis added). In the commentary to that Article, the International Law Commission expressly envisages that the International Criminal Court will, upon request, issue orders to States to facilitate the Prosecutor's investigations84. Thus, the assertion by the International Tribunal of a power to issue binding orders directly to States cannot be regarded as entirely unwarranted and unheard of in international law.
83 See Report of the International Law Commission on
the Work of its forty-sixth Session, 2 May-22 July 1994, G.A. Official records, 49th
Sess., Supp. No. 10 (A/49/10).
84 Article 51 on the other hand, drafted along similar lines to Article 29 of the Statute of the International Tribunal, does not use the language of compliance with orders, but cooperation and judicial assistance. This does not, however, detract from the proposed power of the International Criminal Court to issue subpoenas and orders, contemplated in Article 26.
5. The Issuance of a Subpoena Duces Tecum is a Valid
Exercise of the Authority and Power to Issue Binding Orders
58. The Prosecution has argued that all national legal systems provide, in some form, for the power of their criminal courts to compel the production of documents and appearance of witnesses85. During its oral submissions, however, it did concede that it may have been wiser not to use the term "subpoena", as what is at issue is simply an order compelling the attendance of a witness and the production of documents, compliance with which is not discretionary. Croatia counters that the power to issue a subpoena duces tecum - a compulsory and coercive order - is a feature limited to common law legal systems86.
85 See discussion in Section II.A.2, supra. See
also Simma Brief at pp. 9-11.
86 In addition, Croatia asserts that in the form presently constituted, it is unique to the United States.
59. From the brief examination of national legislation conducted above, it is clear that, while not perhaps using the term "subpoena", national systems do, indeed, generally provide for the compulsory attendance of witnesses and acquisition of evidence in criminal proceedings. This power is as necessary for the proper functioning of the International Tribunal as it is for domestic criminal courts.
60. Emanating from both common law and civil law systems, the Judges of the International Tribunal were responsible for the drafting of its Rules. Every Rule adopted was the result of extensive discussion and debate among the Judges and, therefore, the terms used therein carry their own specific meaning, suited for an international judicial institution with criminal jurisdiction. The Nürnberg Charter, which governed the operation of the International Military Tribunal for the Trial of the Major War Criminals, established after the Second World War, contained little precedent for this rule-making process87. In adopting the Rules, the Judges recognized procedures from both the common law and continental legal systems, but considered that they were bound by neither, although the Statute - and thus, the Rules - tends towards the adversarial system in many respects88. First and foremost, however, the Judges were guided by the nature of, and purposes for, the establishment of the International Tribunal, as reflected in its Statute and supported by the Secretary-General's Report.
87 Annex to the Agreement for the Prosecution and Punishment
of Major War Criminals of the European Axis (London Agreement) ("Nürnberg
Charter"). The Nürnberg Charter contains only 11 rules and did not require
provisions for the wide-ranging functions performed by the International Tribunal.
88 See the First Annual Report of the International Tribunal, 29 August 1994 (A/49/342) at paras. 71-74. Rule 89 enunciates the evidentiary rules which govern trial proceedings. Sub-rule 89(A) explicitly provides that the Chambers shall not be bound by national rules of evidence.
61. As an international institution, the International Tribunal was intended to give effect to the highest standards of justice. However, since it was the first institution of its kind, little guidance was available from existing international instruments. Terminology utilized which originates in one or another domestic legal system does not convey its full meaning in the International Tribunal's context89. Likewise, the Judges did not reject a term simply because it was peculiar to one legal system. Indeed, although the term "subpoena" literally means "under penalty", in the French text of the Rules, the expression "assignation" is used. This term does not necessarily imply any imposition of a penalty90. Both English and French are official languages of the International Tribunal and it is no more legitimate to impose an interpretation of a term appearing in the Rules from its meaning in one language, any more than from the other. Thus, it would be incorrect to infer that a penalty was envisaged, just as it would be incorrect to infer that a penalty was excluded from consideration. Where a term such as "subpoena" can be used to comport with the purposes of the International Tribunal, in a flexible manner which gives effect to the equally authentic English and French versions of the Rules, its use is indeed appropriate. Regardless of the specific differences in the consequences of non-compliance with subpoenas in common law systems, the Rules are designed to capture the essence of the term - that is, the essential power to compel the attendance of witnesses and the production of evidence. It is this essence that the Trial Chamber has found characterizing several domestic legal systems from both the common and civil law traditions91.
89 In its Final Brief, Croatia discusses at length the extent
of the discovery rules applicable in the United States and the differences between the
broad rules used in civil proceedings from the more narrow rules applied in criminal
cases. While this discussion is of some interest, it is not dispositive of the issue
before the Trial Chamber as it is not in contention that the procedures adopted by the
United States should not be imposed on other States.
90 See Simma Brief at p. 10. In Baleyte, Kurgansky, Laroche and Spindler - Dictionnaire Economique et Juridique (4th ed. 1995) assignation is defined as the serving of a writ, writ of summons, subpoena. The verb assigner is then defined as to summon, to subpoena, to cite (un témoin, etc.), to issue a writ against someone, to serve a writ on someone. A subpoena, on the other hand, is explicitly stated as being "sous peine d'amende" and is a "citation à comparaître adressée a des témoins." In Lebettre, F. and Servajean, H. - A Key to the English Vocabulary (Clef du Vocabulaire anglais) (3rd ed. 1943), to summon, to serve a writ on and to subpoena are all designated as "assigner, citer en justice".
91 Pellet argues, (amicus brief by Alain Pellet and Juristes Sans Frontières (hereafter "Pellet Brief") at para. 15) that the Prosecutor's reference to French law is erroneous, in that art. 283 of the Code of Criminal Procedure, cited in support of its position, is far removed from any notion of subpoena. While it is correct that this article does not by itself constitute an illustration of a concept similar to a subpoena, the discussion above (Section II.A.2, supra) reveals that the French system does indeed provide for the compulsory attendance of witnesses and the obtaining of documentary evidence necessary for proceedings.
62. Furthermore, even if a subpoena is regarded as an order "under penalty", the penalties imposed by the International Tribunal could range from a note of non-compliance and reference of the matter to the Security Council, when States are concerned, to consideration of utilizing the inherent contempt power or that provided for in Rule 77 against individuals who fail to comply. The International Tribunal strives to develop its own jurisprudence with respect to the interpretation of its Rules on the basis of its special nature and purposes. Thus, the argument that the use of the term is invalid because the International Tribunal cannot impose any criminal sanction is wholly unpersuasive92. The Trial Chamber considers that use of a subpoena does not necessarily imply the assertion of a power to imprison or fine, as it may in a national context. The "penalty" may be no more than a finding that a State has failed in its duty to comply with an order, which itself is a censure and form of penalty. Referral to the Security Council after such a finding has been made would constitute an imposition of this penalty.
92 See Pellet Brief at paras. 10-18.
63. Croatia, in its Final Brief, threatened that the use of a coercive process against States by the International Tribunal "would make the formation of new international tribunals, and particularly international criminal tribunals, virtually impossible"93. This negative speculation about potential dire consequences is misleading, for it was not until after the International Law Commission had adopted the ILC Draft Statute, providing for the issuance of subpoenas, that Rule 54 was amended to add the term "subpoenas". Rather than acting as renegade, threatening the development of international law, the International Tribunal's use of the term comports with the ILC Draft Statute and is consistent with its development of international criminal procedure in this respect94.
93 Croatia's Final Brief at p. 54.
94 See Simma Brief at p. 12. Likewise, the term "subpoena" appears in the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
64. The Trial Chamber concludes that the issuance of a subpoena duces tecum to a State for the production of government documents is nothing more than an order compelling the production of those documents. The International Tribunal has the inherent power and express authority to issue such orders. Resort to the mechanism of subpoenas is provided for in Rule 54. The Trial Chamber declines to invalidate that Rule, which effectuates the duty of States and individuals to comply with orders of the International Tribunal.
B. Power to Issue Binding Orders to Government Officials
65. Although many arguments have been raised by Croatia and some amicus curiae that the International Tribunal cannot issue a subpoena duces tecum directed to a sovereign State, there appears to be no controversy where the addressee of this form of binding order is an individual. There is no doubt that a Judge or Trial Chamber may address individuals directly in a number of circumstances. For example, under Rule 98, a Chamber may summon a witness to appear before it95 and, under Rule 105, the Chamber can order the appearance of a third party in possession of property which is subject to a claim for restitution. The national cooperation laws of several States confirm this view96. The Austrian law, for example, provides that the International Tribunal may forward summonses and other documents to persons directly by mail97. Thus, presumably, the International Tribunal is recognized as having the power to issue such orders to individuals. Similar provisions exist in the Swiss legislation98. The relevant Dutch legislation refers to persons "being transferred to the Netherlands by the authorities of a foreign state as witnesses or experts in the execution of a subpoena issued by the International Tribunal"99. This expressly contemplates that individuals may be the subjects of binding orders in the form of subpoenas addressed to them. The applicable Finnish Act100 refers to the summoning of witnesses and the duty of persons to comply with such summons, once again an indication that these are orders binding on individuals101.
95 See The Prosecutor v. Dusko Tadic, Decision on
the Defence Motion to Summon and Protect Defence Witnesses, and on the Giving of Evidence
by Video-Link, (IT-94-1-T, 25 June 1996, RP D9148-D9162). In this Decision, taken
pursuant to Rule 54, the Chamber ordered that the penalty for non-compliance with the
summons be included therein.
96 See the discussion of national cooperation laws in the Max-Planck-Institute Brief at pp. 44-46.
97 See the Austrian Federal Law on Cooperation with the International Tribunals, 1 June 1996.
98 Federal Order on Cooperation with the International Tribunals for the Prosecution of Serious Violations of International Humanitarian Law of 21 December 1995, art. 23.
99 Provisions relating to the establishment of the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, bill of 9 March 1994 as amended.
100 Act on Jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Crimes Committed in the former Yugoslavia and on Legal Assistance to the International Tribunal, of 5 January 1994, s. 8.
101 A survey of other international tribunals reveals that, generally, they do not issue orders to individuals (see Max-Planck-Institute Brief at p.46). However, these tribunals may be distinguished on the grounds that the parties before them are States, and they are not adjudicating the guilt or innocence of individual persons accused of criminal acts.
66. By virtue of Articles 6 and 7 of the Statute, the International Tribunal properly has jurisdiction over individuals and it is their criminal responsibility that it is called upon to adjudicate, rather than the responsibility of States. However, to issue a binding order such as a subpoena does not constitute an exercise by the International Tribunal of jurisdiction over the individual concerned, unless they are alleged to be responsible for one of the crimes enunciated in the Statute. Nonetheless, it is a necessary exercise of the International Tribunal's incidental powers102 for it to compel an individual to produce information required for an investigation or trial. Should any person deny the International Tribunal access to necessary documents in his or her possession, this would prevent the International Tribunal from adjudicating effectively and fairly trials involving crimes over which it has subject-matter jurisdiction. A criminal court must have the ability to ensure that its functioning is not frustrated at the inclination of obstructive individuals103.
102 Described in Section II.A.3, supra.
103 See Pellet Brief at p. 15.
67. Croatia contends, however, that government officials are not the proper subjects of orders from the International Tribunal and all communication must go through Croatia's designated office for cooperation. The International Tribunal does typically channel its requests through the State and, moreover, through the designated office for cooperation. However, Article 18, paragraph 2 of the Statute grants the Prosecutor express authority to deal with State "authorities" in particular, rather than "the State" as an abstract entity, and demonstrates that the International Tribunal is not required to proceed through designated State channels, but can approach those officials who are most directly responsible for compliance104. It is logical that, if the Prosecutor has contacted a particular authority for the production of certain items, when she requests the confirming Judge for an order pursuant to Article 19, paragraph 2, that order should also be directed to those same authorities105. In addition, if the Prosecutor, in the investigation stage prior to indictment, can seek the most direct route to the information she requires, so too must a Judge or Trial Chamber, in the post-indictment stage, when the judicial process has been set in motion, have the ability to gain prompt access to all necessary information sought at the behest of the prosecution or the defence, by directing an order to the appropriate State official.
104 See amicus brief by Luigi Condorelli
(hereafter "Condorelli Brief") at p. 5.
105 See Condorelli Brief at p. 6. Furthermore, the fact that Rule 39 reiterates the Prosecutor's power to seek the assistance of State authorities as well as to request a Judge or Trial Chamber for such orders as are necessary, reaffirms this interpretation.
68. That a State chooses to designate a particular official or department for the purposes of cooperation with and assistance to the International Tribunal does not preclude the possibility of direct contact between the International Tribunal and another official or department in relation to specific matters106. Illustrative of this is Article 29(1) of Bosnia and Herzegovina's Decree with Force of Law on Extradition at the Request of the International Tribunal. This requires that all items of evidence requested by the International Tribunal be handed over. Read in light of the Constitution of Bosnia and Herzegovina - which provides that all competent State authorities must cooperate with the International Tribunal - what is envisaged is the production of evidence by individual officials and departments, despite the designation of a particular liaison officer between the International Tribunal and Bosnia and Herzegovina107. Croatia's argument that all communication between itself and the International Tribunal, including orders and requests, must go through its office for cooperation, cannot be accepted. Although it is a general principle of international law that it is for the State to determine how it will fulfil its international obligations, a State cannot impose conditions of form on the fulfilment of these obligations by enacting national legislation which results in derogation thereof108. This principle is of the utmost importance where the obligation imposed on States arises by virtue of a Chapter VII resolution.
106 See Condorelli Brief at p. 7.
108 See Pellet Brief at p. 9, Lawyers' Committee Brief at p. 13, Salcedo Brief at p. 9.
69. In conclusion, the fact that a person identified by the International Tribunal as being in possession of important documents is an official of a State does not preclude the issuance of a subpoena duces tecum addressed to him or her directly. The International Tribunal is a Chapter VII enforcement mechanism as well as a criminal body and, therefore, is not required to conform to standard methods of inter-State cooperation, whereby individual officials may not be addressed109. It has been established that binding orders may be issued by the International Tribunal addressed to both States and individuals and there is, therefore, no reason why a person exercising State functions, who has been identified as the relevant person for the purposes of the documents required, should not similarly be under an obligation to comply with a specific order of which he or she is the subject110. States must always act through their officials and thus the authority to issue binding orders to States by necessary implication carries the authority to issue such orders to their officials111. The International Tribunal must have powers that are both practical and effective and, as a criminal institution, this dictates that it seek the most direct route to any evidence which may have a bearing on the finding of guilt or innocence of the accused112.
109 See amicus brief by Giorgio Gaja and Annalisa
Ciampi (hereafter "Gaja and Ciampi Brief") at p.2.
110 The duty to comply with such orders is further discussed in Section II.C.2, infra.
111 See Lawyers' Committee Brief at p.10.
112 The course of the subpoenas directed to Bosnia and Herzegovina and its Defence Minister, Mr. Jelavic illustrates that in some situations the State may be providing the cooperation and assistance required of it, while an individual official prevents the documents sought from being produced.
C. Duty to Comply With Orders of the International Tribunal
70. As noted above, the International Tribunal has the authority and power to issue binding orders, including subpoenas, to States as well as individuals. A separate but closely related question is the scope of the duty, if any, of States and individuals to comply with such orders. Both the Prosecution and the Government of Bosnia and Herzegovina hold that States and individuals must comply with such orders.
71. Croatia challenges this position. While acknowledging that States have an obligation to cooperate equally and completely with the International Tribunal113, Croatia maintains that Article 29 of the Statute does not give the International Tribunal coercive authority over any State. It bases this argument on the use of the term "cooperate" in the Statute, asserting that the Statute contemplates a relationship whereby any requested action must be mutually agreed upon by the parties. Croatia therefore submits that, pursuant to paragraph 2 of Article 29, the concept of coercion is inappropriate as it, as a State, is only required to recognize and implement the International Tribunal's requests for assistance and to ensure that orders addressed to individuals within its jurisdiction are executed.
113 Croatia's Answer to the Prosecutor's Brief in Support of Subpoena Duces Tecum, 11 April 1997 (RP D4731-47), at p. 2 noting that it "accepts this obligation and expects that international law, the Statute and other legal sources which are related to the [International Tribunal] are strictly adhered to".
1. States' Duty to Comply
72. The core of the duty of States to comply with orders of the International Tribunal lies in Article 29 of the Statute, which provides as follows.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:
On its face, this provision is clear: States have a duty to comply with orders of the International Tribunal in addition to their general obligation to cooperate. Thus, Croatia's assertion that the Statute calls for anything less than compliance is unwarranted114. Nevertheless, several arguments have been raised to contradict such a conclusion. These arguments include that: (1) the Secretary-General's Report suggests that States must only "give effect to", as opposed to comply with, orders of the International Tribunal; (2) sovereign immunity bars a duty to cooperate unequivocally; and (3) the duty to cooperate hinges on national implementation legislation.
114 See Pellet Brief at paras. 6-9, noting that the obligation of States to cooperate with the International Tribunal is "incontrovertible"; Malanczuk Brief at para. 1.1 stating that Article 29 clearly indicates that the International Tribunal has the power to issue orders directly to States, which are binding by virtue of resolution 827 and the United Nations Charter, and that a failure to comply with an order under Article 29 is a violation of resolution 827; and the Prosecution's oral argument that Article 29 imposes a duty on States to comply with orders of the International Tribunal and such compliance must be in terms determined by the International Tribunal, not by the States themselves.
73. Prior to evaluating the above-mentioned contentions, the preliminary question of whether Article 29 includes a duty to comply with an order issued by a single Judge must be addressed. As noted above, Article 29 only uses the term "Trial Chamber" and does not explicitly mention single Judges acting alone, or for that matter, the Appeals Chamber. This omission, however, does not allow States to ignore orders emanating from single Judges or the Appeals Chamber. Article 19 of the Statute, which allows the Judge who confirmed an indictment to issue orders "as may be required for the conduct of the trial", is instructive in this regard. In addition to granting a single Judge the power to issue such orders, it refers to that Judge as a "judge of the Trial Chamber", thereby suggesting that the Judge, when exercising powers under Article 19, acts as a representative for that Trial Chamber. Because a single Judge serves in a representative capacity, there is no basis for a determination or finding that the obligation to comply differs with regard to an order of the Trial Chamber as compared with that of a single Judge. Moreover, the duty to cooperate contained in paragraph 1 of Article 29 of the Statute is with regard to the "International Tribunal", with no distinction made between single Judges, Trial Chambers, or the Appeals Chamber. Accordingly, there is no basis on which to presume that the Security Council, in adopting the Statute, intended different standards of cooperation and compliance with orders depending on the issuing organ. The purpose of the collection of evidence before trial, when a single Judge typically issues an order, is as important as those made during the trial by the entire Trial Chamber115. Therefore, the duty to comply with requests and orders of the Trial Chamber must also apply to decisions taken by a single Judge.
115 It is a single Judge who signs an arrest warrant, for example. See Rule 55.
(a) Secretary-General's Report: "Giving Effect To" Compared with
74. The following statement in the Secretary-General's Report confirms that there is a duty to cooperate:
However, it then declares that "[e]ffect shall also be given [by States] to orders issued by the Trial Chambers, such as . . . any other orders necessary for the conduct of trial", suggesting that there is a different status or standard for compliance with orders as compared with requests for assistance.
116 Secretary-General's Report at para. 125.
75. Thus, it may be possible to interpret the reference to "giving effect" to orders of the International Tribunal as demonstrating that Article 29 only allows it to demand the cooperation of States through "requests for assistance". Following from this is the theory that States may only be addressed for the execution of the order and cannot be the subject of such orders117. In support of this position are some of the drafts and proposals submitted by States and experts participating in the drafting of the Statute. Several of these participants anticipated that the method of cooperation between the International Tribunal and States would conform to traditional forms of international legal cooperation118, and envisaged that this cooperation would be given in the form of "assistance"119. When discussing orders issued by the International Tribunal, the drafts and proposals mentioned indirect obligations on States to "enforce", "execute" or "arrange compliance with" orders, but failed to refer explicitly to States being obligated to "comply" with such orders120.
117 Max-Planck-Institute Brief at p. 6.
118 See, e.g. the Proposal of the CSCE-Rapporteurs, supra note 6, reprinted in Insider's Guide vol. 2 at p. 262-63.
119 Insider's Guide, vol. 2 at pp. 346 (France), 378 (Italy), 454 (USA), 424 (Amnesty International), and 476 (Netherlands).
120 Id. at pp. 405 (Org. of the Islamic Conference), 446 (Russia), and 530 (USA).
76. The parties involved in this action accept that there is a duty to comply with requests for assistance. This is in line with the customary law under which requests give rise to a duty to perform specific acts subject to conditions established by the applicable conventions in regard to international legal cooperation between States in criminal matters. For example, in the European Convention on Extradition, the Contracting Parties "undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting parties are proceeding for an offence . . ."121. However, in contrast to the other parties, Croatia would limit the duty to comply to such requests, declining to extend it to orders issued by the International Tribunal, based on its conclusion that Article 29 of the Statute is the equivalent of a multilateral convention.
121 Art. 1; reprinted in European Inter-State Co-operation in Criminal Matters - Collection of Texts, M¸ller, Rappard / Bassiouni eds., (Dordrecht 1987) vol. 1 ch. 1,1.
77. This assertion is erroneous. The International Tribunal is not - and was not intended to be - so limited. Although traditionally the triggering of treaty obligations by other States has been by means of a "request" rather than an order, this has no relevance to the obligation vis-à-vis the International Tribunal. There are several reasons for the use of the term "request" as opposed to "order", including that designating such requests between equals as orders would be inappropriate, and because such requests can often be refused on one or more of the several grounds that are typically provided for within the relevant treaties122. To the contrary, whether denominated "requests" or "orders", the relationship between States and the International Tribunal is not one between equals since the International Tribunal is a Chapter VII entity complete with the associated rights and obligations. Moreover, there are no specified grounds on which a State may refuse to comply with an order or request from the International Tribunal, as there are in treaties or bi- or multilateral agreements. Instead, any stated refusal must be evaluated by the International Tribunal for merit, and it retains the power - to the extent it is expressly authorized or inherent because of the nature of the institution - to penalize the non-complying party if appropriate. Finally, the use in the Statute of both "orders" and "requests for assistance" can be best explained by the reflection by the Security Council in the Statute of different legal systems' procedures. The traditional "request for assistance" terminology endows the International Tribunal with traditional means of international legal cooperation, while the grant of the power to issue "orders" reveals an intention to bestow upon the International Tribunal, to a certain extent, some of the powers with which national criminal courts are necessarily endowed for the adequate performance of their functions123.
122 Id., ch. 1,2.
123 See Max-Planck-Institute Brief at p. 11.
78. Paragraph 2 of Article 19 of the Statute also counters the possible suggestion in the Secretary-General's Report that a State must only give effect to, rather than comply with, orders of the International Tribunal in its mention of "orders . . . for the surrender or transfer of persons", as such orders would normally be addressed to and complied with by States. Moreover, that the Security Council intended to impose an obligation on States to cooperate with, and assist in all respects, the International Tribunal, is evidenced by paragraph 4 of resolution 827, in which the Security Council:
This was reiterated by the Security Council in 1995 in resolution 1031, wherein it, in
Thus, it is clear that the intent of the Security Council was for States not only to give effect to orders of the International Tribunal but also to be bound to comply fully with such orders. Considering that the International Tribunal clearly has the power to issue binding orders as noted above, there is no basis for creating a distinction between the duty to comply with requests issued by the International Tribunal and orders issued by the same entity. As there is a duty to comply with requests for assistance, so there is a duty to comply with orders of the International Tribunal, as they have the same legally binding effect. Given that a subpoena duces tecum is an order, just as any other125 issued by the Trial Chamber, States are bound to comply fully with these as well.
124 S/Res/827 (1993).
125 See discussion in Section II.A, supra, and Rule 54, which enables Judges to issue orders, including subpoenas, as necessary during trial. The terms following "such orders" are all sub-categories of orders - see e.g. Henry C. Black, Black's Law Dictionary (6th ed. 1990) wherein a summons is defined as "a written order notifying an individual that he or she has been charged with an offence" in criminal law (at p. 1436); a subpoena is "a command to appear at a certain time and place to give testimony upon a certain matter (at p. 1426) (a command is defined as "[a]n order, imperative direction, or behest (at p. 266)); and a warrant is an "order by which the drawer authorizes one person to pay a particular sum of money" (arrest warrant is a "written order of the court which is made on behalf of the state . . . based upon a complaint issued pursuant to statute and/or court rule and which commands law enforcement officer to arrest a person and bring him before a magistrate" (at p. 1585).
(b) Sovereign Immunity
79. In general, States, as sovereign entities, cannot be ordered by other States or intergovernmental entities to take certain action. However, it has already been established that the International Tribunal can indeed issue binding orders to States and thus this rule is not applicable here. Nonetheless, it has been argued that sovereign immunity precludes a duty to comply with orders of the International Tribunal.
80. Developed in regard to domestic, as opposed to international, courts, that doctrine is inapplicable in this context. The ICJ, in a decision regarding an argument by a State that compliance with an international instrument would affect its State sovereignty, stated:
While this comment specifically relates to general treaty obligations, it is equally applicable to the situation here. The Charter of the United Nations, in Article 2(1), supports this theory in its statement that the "Organization is based on the principle of the sovereign equality of all its Members", implying that members of the United Nations, although they remain sovereign nations, also are subject to certain obligations that do not affect their sovereignty.
126 Case of the S.S. Wimbledon, 1925 PCIJ ser. A vol. 1 at p. 25. See also amicus brief by Bartram Brown (hereafter "Brown Brief") at pp. 1-2.
81. Moreover, the establishment of the International Tribunal by the Security Council under Chapter VII of the United Nations Charter clearly calls for the priority of measures adopted by the Security Council to maintain or restore international peace and security, and subordinates State sovereignty to these concerns. Article 2 of the Charter requires all Member States to "give the United Nations every assistance in any action it takes in accordance with" the Charter127. In addition, Articles 25, 41, 45 and 49 mandate that Member States must accept and carry out decisions of the Security Council under Chapter VII. Article 103 of the Charter makes clear that State concerns must be subordinated to Chapter VII measures: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail". This was confirmed by the International Tribunal in the Jurisdiction Decision128, where the Appeals Chamber, quoting from Article 27 of the Charter, held that the principle of non-interference in domestic affairs "shall not prejudice the application of enforcement measures under Chapter VII".
127 Art. 2(5). See also Salcedo Brief at pp. 6-7.
128 Jurisdiction Decision at para. 56. See also Lawyers' Committee Brief at p. 8.
82. These provisions confirm that State sovereignty must give way129 to measures taken by the Security Council to maintain or restore international peace and security130. This conclusion is supported by the Legal Consequences for States of the Continued Presence of South Africa in Namibia case131, which holds that Member States must comply with Security Council decisions.
129 As Malanczuk noted, the defence of State immunity
"arises in the normal relationship of States among each other. It is based upon the
principle that States are independent and legally equal and that therefore no State may
exercise jurisdiction over another State without its consent. In the case of compulsory
collective security measures adopted by the Security Council under Chapter VII of the UN
Charter the situation is different from the normal application of the principle of the
sovereign equality of States". Malanczuk Brief at p. 15.
130 See Lawyers' Committee Brief at p. 8.
131 131. 1971 ICJ Rep. p. 16.
83. Croatia and Bosnia and Herzegovina both were admitted as members of the United Nations on 22 May 1992. They have therefore been bound since then by decisions of the Security Council under Chapter VII132. In voluntarily exercising their sovereignty in joining the United Nations, these States obligated themselves, along with all others, to comply with the International Tribunal as a Chapter VII enforcement measure133. Moreover, these States expressly committed themselves, in signing the Dayton Peace Agreement, to full cooperation with the International Tribunal134. Accordingly, State sovereignty is in no way implicated by mandating compliance with an order from a Judge or Trial Chamber and sovereign immunity cannot serve as a basis for a refusal to comply135.
132 See Wedgwood Brief at pp. 10-12.
133 See Lawyers' Committee Brief at p. 9.
134 See General Framework Agreement for Peace in Bosnia and Herzegovina (hereafter "Dayton Peace Agreement"), Art. IX and Annex I-A, Art. X, by which the parties committed to full cooperation with all the bodies authorized by the Security Council, including the International Tribunal.
135 It is worth noting that even those who contest the International Tribunal's ability to issue subpoenas to States would find that there is a duty to comply: "nothing precludes the possibility of addressing requests to States as part of the conduct of the trial, and these requests are strictly binding on the person(s) receiving them". Pellet Brief at para. 20. Perhaps this incongruency is due to the misconception that subpoenas automatically carry the threat of criminal sanctions: "The only thing which is not possible is to issue the requests - which are like orders - under threat of criminal sanctions". Id. Contrary to this statement, if subpoenas are regarded as "under penalty", the penalty is not necessarily criminal; indeed, the censure that accompanies public disclosure of non-compliance or reporting to the Security Council is also a form of penalty. See para. 62, supra.
(c) National Implementing Legislation
84. Resolution 827 of the Security Council calls upon States to implement its provisions as well as those of the Statute of the International Tribunal: "States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute". States are thus required to create internal legislation that would enable them to fulfil their duty to comply with orders of the International Tribunal. Accordingly, the assertion that compliance with an order of the International Tribunal would violate internal law has no validity136.
136 This is in agreement with the general principle of international law that internal law cannot serve as a basis on which to avoid international obligations. See art. 27 of the Vienna Convention of 1969 on the Law of Treaties: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty". See also Pellet Brief at para. 9.
85. Nevertheless, considering that national implementation mechanisms are necessary for the International Tribunal to be fully operative, a review of the implementing legislation of States is necessary. The issue of the duty to comply with a legally binding order of the International Tribunal is not specifically addressed in most of the national laws implementing Article 29 of the Statute. However, the legislation of certain States does contain a general clause referring to the obligations of Member States to cooperate with the International Tribunal137. Others are more specific. For example, the International War Crimes Tribunals Legislation 1995 of the Commonwealth of Australia "contains provisions enabling Australia to comply with . . . [the] binding international obligations imposed by the United Nations Security Council in relation to the two Tribunals set up to deal with war crimes". The Act provides for the taking of evidence, the production of documents or other articles, and the transfer of persons, with their consent, to give evidence at hearing138. The New Zealand International War Crimes Tribunals Act 1995 similarly provides for cooperation based on requests for assistance such as, inter alia, the production of documents or other articles139. While most of the legislation of the various States refers to requests, as is customary under international law in regard to treaty obligations, there is nothing within the legislation that could be interpreted as expressing a general principle prohibiting compliance with orders of the International Tribunal addressed to States.
137 See, e.g., Belgian Law on the Recognition of the
International Criminal Tribunal for the former Yugoslavia and the International Criminal
Tribunal for Rwanda and Cooperation with these Tribunals, Art. 2 (Moniteur Belge of
27 April 1997) (refers generally to obligations under Security Council resolution 827
(1993)); Danish Act on Criminal Proceedings before the International Tribunal for the
Prosecution of Persons Responsible for War Crimes Committed in the Territory of Former
Yugoslavia, Art. 1 (requiring action "in accordance with . . . said Statute and Rules
of Procedure and Evidence").
138 Australian International War Crimes Tribunals Act 1995, part 4, division 3.
139 New Zealand International War Crimes Tribunals Act 1995, ss. 21 and 22.
86. In conclusion, it is clear that States are obliged to comply with requests for assistance as well as orders of the International Tribunal, whether issued by a single Judge or a full Trial Chamber. This conclusion is supported by Articles 19 and 29 of the Statute, Security Council resolution 827, the Secretary-General's Report, implementing legislation of States, and the status of the International Tribunal as a Chapter VII measure. Considering especially the importance of the effective and fair adjudication of the charges against persons brought before the International Tribunal for very serious crimes, there is no basis, on grounds of sovereign immunity or otherwise, to find to the contrary.
2. Individuals' Duty to Comply
(a) Individuals Generally
87. As noted above, the International Tribunal clearly has the power to issue binding orders to individuals in the execution of its mandate. The duty of individuals to comply with such orders has not been challenged by the parties. Individuals are bound to comply with orders of the International Tribunal, although this duty is grounded in different considerations than that of States, as paragraph 1 of Article 29, which provides for States' duty to cooperate, does not mention individual persons. In addition to the ability - and necessity - of the International Tribunal to issue orders to individuals as noted above, the concept that individuals generally have a duty to comply with orders of the International Tribunal is confirmed by Rule 77, which provides for the sanctioning of persons who refuse or fail to "answer a question relevant to the issue before a Chamber"140.
140 Rule 77(A). The Trial Chamber need not decide whether the scope of Rule 77 is sufficiently broad to include the remedy for the failure to comply with a subpoena duces tecum.
88. The implementing legislation of States also provides a basis for the duty of individuals to comply with orders of the International Tribunal. For example, the German cooperation law provides that a request or order for the appearance of an individual may be enforced as if the summons were issued by a German court or prosecutor's office141, and the Spanish law provides that persons summoned to appear before the International Tribunal are under the "same obligation to appear as that provided for in Spanish law"142. Similarly, the New Zealand legislation holds that the law of New Zealand will apply with respect to the compelling of persons to attend before a judge and to "give evidence, answer questions, and produce documents or other articles"143. The Italian cooperation law allows for coercion by Italian authorities where a witness fails to appear before the International Tribunal, if the International Tribunal so requests144. Under British provisions, if a person fails to appear pursuant to a summons issued by the International Tribunal, the United Kingdom will, if requested by the International Tribunal, have the non-appearing person arrested145. Finally, the Finnish legislation provides that individuals who have been summoned to appear before the International Tribunal are "under the duty to comply with the summons" and if such individual fails to appear or refuses to answer questions, that person "shall be imposed a fine and, where necessary, under penalty of fine or sentence, ordered to fulfil his duties"146.
141 German Law on Cooperation with the International Tribunal
in respect of the Former Yugoslavia (Law on the International Yugoslavia Tribunal) of 10
April 1995, at s. 4, para. 2.
142 Annex, Organization Act 15/1994 of 1 June on cooperation with the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (adopted by the Spanish Parliament on 1 June 1994), art. 7.
143 New Zealand International War Crimes Tribunals Act 1995, s. 26.
144 Italian Provisions on Cooperation with the International Tribunal for the Prosecution of Serious Violations of international Humanitarian Law Committed in the Territory of the Former Yugoslavia (Decree-Law No. 544 of 28 December 1992) at art. 10, para. 7.
145 The United Nations (International Tribunal) (Former Yugoslavia) Order 1996, Statutory Instruments 1996 No. 716 (entered into force 15 March 1996) at art. 9.
146 Act on the jurisdiction of the International Tribunal for the prosecution of persons responsible for crimes committed in the territory of the former Yugoslavia and on legal assistance to the International Tribunal (5 January 1994/12) at s. 8.
(b) Individuals that are Subject to Orders in an Official Capacity
89. Specifically at issue here is the duty of a State official to comply with a subpoena that is issued to him in his official capacity. As States can act only through their officials, a high government official who is subpoenaed in his official capacity to carry out obligations on behalf of a State would not be taking part in the proceedings as a private person but as an agent of the State. Unlike private individuals, officials of foreign governments in a diplomatic capacity usually enjoy immunity in domestic courts from any requirement that they proffer any testimony pursuant to the Vienna Convention on Diplomatic Relations147 and the Vienna Convention on Consular Relations148. However, these conventions have no applicability to the International Tribunal, and the driving force behind them - the fear of harassment of diplomatic officials149 - is not valid for an international criminal tribunal established by the Security Council.
147 500 U.N.T.S. 95 (1961, entered into force 1964).
148 596 U.N.T.S. 261 (1963, entered into force 1967).
149 See Wedgwood Brief at pp. 25-26.
90. To the contrary, the Statute and Rules allow orders directly addressed to such officials. For example, Article 18, paragraph 2, of the Statute provides that the Prosecutor may "seek the assistance of the State authorities concerned" and Rule 39 allows the Prosecutor to solicit "the assistance of any State authority concerned". Where there is no voluntary compliance, as is indicated by these terms ("seek the assistance of"), paragraph 2 of Article 19 and Rules 39 and 54 authorize the Judges of the International Tribunal to issue orders when necessary.
91. Considering that a State has a duty to comply, a government official to whom a subpoena duces tecum is issued in his official capacity has a corresponding duty to comply. Indeed, it would be anomalous to consider that his duty is less than that of the State from which he receives his authority, since a State may only act through its competent officials. Moreover, the duty of a State official to comply flows explicitly from Article 18, paragraph 2, of the Statute which, as noted above, allows the Prosecution to seek the assistance of State authorities150.
150 See Condorelli Brief at pp. 5-6; Lawyers' Committee Brief at pp. 10-13; and Gaja and Ciampi Brief at pp. 5-7.
92. It is inarguable that an order addressed to an individual in his official capacity implicates the State as well. While the Trial Chamber finds that the question of the remedies available to it should the State or government official fail to comply with binding orders is not ripe for consideration, a blind eye cannot be turned to the reality that actual compliance is controlled by the State. When a subpoena is addressed to such an individual who fails to comply with it, the lack of compliance, if wilful, may be based on one of two grounds: (1) he or she was ordered, instructed, or directed by his State not to comply; or (2) his or her State ordered compliance but he failed to act accordingly. These situations raise different concerns and give rise to different analyses.
93. The second scenario is the less complex of the two. Because the State seeks to comply with the order and it is the individual who fails to do so, the State itself can remedy the situation by taking some form of internal enforcement measure such as replacing or sanctioning the individual. This is appropriate as the State is also inherently responsible for compliance, whether noted in the order or not, where the notice was sent to the individual as an agent of the State. In this situation, the individual is no longer acting in his official capacity and, in defiance of the State, becomes an actor in his individual capacity151. Assuming that the State has an internal enforcement mechanism, the problem can be solved quickly and the order complied with by that official or any other competent individual acting on behalf of the State, especially where the order is one for documents (subpoena duces tecum) and not for specific information within the personal knowledge of the individual named in the order (subpoena)152. While the onus in this case remains on the State to produce the requested information or individual or to comply otherwise with the order, because the individual is acting ultra vires his official position, the limitations, if any, on the availability of sanctions which may be imposed by the International Tribunal on States does not apply. In such a case the official may be sanctioned as an ordinary individual153.
151 See Croatia's Final Brief at p. 33, noting that
individual responsibility is incurred when the individual cannot raise his or her state
office as a defence to the substantive offenses charged. See also amicus brief by
Marie-JosÈ Domestici-Met (hereafter "Domestici-Met Brief") at para. 19, noting
that where the official refuses to obey such an order, it is "a purely internal
problem and does not relieve the State of its responsibility to cooperate".
152 See Gaja and Ciampi Brief at p. 6, noting that "a penalty against a non-complying official would have to be adopted by the relevant State".
153 A discussion of the range of sanctions available to the International Tribunal where there is non-compliance with an order, however, is beyond the scope of this Decision.
94. The more difficult situation is the first, which raises the question of whether an individual acting in his official capacity as a high State official can in fact comply, or be expected to comply, if the State on the behalf of which he acts prohibits him from so doing154. Must this high governmental official defy orders of his government pursuant to an order by an International Tribunal, even one established under Chapter VII of the United Nations Charter? The ability that the individual has to comply with the order flows, in this scenario, directly from his position as a high government official, and he may be prohibited from complying with it in his official capacity by the State.
154 Domestici-Met Brief at para. 19 states that the International Tribunal cannot present a request to obtain documents directly to an official if "no consensus exists between him and his State". Under English law, an employee who is in possession of documents in that role cannot be compelled to produce them if his employer disallows it or it the production would be in violation of his duty of performance. See Austin v. Evans (1841) 2 Man & G 430; Crowther v. Appleby (1873) LR 9 CP 23; Re Higgs, ex parte Leicester (1892), 66 LT 296; Eccles & Co. v. Louisville and Nashville Railroad Co. 1 KB 135, CA, (cited in vol. 17 Halsbury's Laws of England, 4th ed. para. 251 n.1).
95. If the individual complies with the order in defiance of this government, he may face the loss of his position and possibly far greater sanctions than need be mentioned here. Given the International Tribunal's lack of police power, it would be very difficult to provide adequate protection for an official who so defied his State. Based on the principle ultra posse nemo tenetur, which states that one should not be compelled to engage in a behaviour that is nearly impossible, it may not be proper to compel an individual to comply with such an order in his official capacity in such circumstances155. However, these concerns must be balanced with the need of the International Tribunal to obtain the information necessary for a just and fair adjudication of the criminal charges before it. Due to these concerns and noting the established rule of international law that "[e]very internationally wrong act of a State entails the international responsibility of that State"156, the duty to comply in such a scenario must be placed on the State, with appropriate sanctions or penalties for non-compliance157. However, notwithstanding that the State is ultimately responsible, the individual retains a duty to appear before the International Tribunal and state the reasons for his or her non-compliance, for the International Tribunal necessarily must have the opportunity to assess the truthfulness of the official's contentions and inquire as to the exact nature of his alleged inability to comply. The State concerned has a duty to execute any orders issued by the International Tribunal compelling the attendance of the official for this purpose.
155 See Simma Brief at p. 15. See also amicus brief
by the Croatian Association of Criminal Science and Practice (hereafter "CACSP
Brief") at para. 3.3, noting that an official may only dispose of documents in a
manner prescribed by national legislation or risk being "held legally responsible for
revealing a state secret", although it recognizes that if the document were privately
owned by him, the International Tribunal "could request it directly from him as any
156 Draft Articles on State Responsibility, Art. 1, printed in the Report of the International Law Commission on the work of its forty-eighth session (6 May - 26 July 1996) General Assembly Official Records, 51st session, supp. no. 10 (A/51/10) at p. 125. The Draft Articles also provide that the "conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law, provided that organ was acting in that capacity in the case in question". Id. (Art. 5) at p. 126.
157 See Simma Brief at p. 14, Malanczuk Brief at pp. 13-14. Malanczuk also notes that the International Tribunal can issue orders directly to sub-State entities and designated officials only with States' consent via implementing legislation or other agreement, although States are obligated to provide the International Tribunal with "the appropriate points of contact and necessary information regarding the division of internal responsibilities so that it can effectively conduct its work and that they are obliged to secure the internal implementation and execution of the orders of the Tribunal." Id. at p. 14. See also Brown Brief at pp. 5-6, finding it "unreasonable to hold such a government official in contempt for failure to comply with an order from the International Tribunal when he or she does so pursuant to the official policy and laws of the government". A third, even more complex situation could be envisioned where there is no clear indication of the person who is responsible for having, obtaining, or maintaining information that is the subject of an order of the International Tribunal. Where a State appears to have made extensive efforts to locate or define such a person but the identified person denies that he is the appropriate party, the question remains on whom the duty to comply rests. However, this issue is not before the Trial Chamber.
96. Thus, while it is incumbent upon an individual acting in an official capacity to comply with orders of the International Tribunal - including a subpoena duces tecum - such individual's inability to comply pursuant to a State instruction may be taken into consideration by a Chamber, although he is still required to appear before the International Tribunal if so ordered158. Moreover, although an individual State official may be specifically named in an order in his official capacity, the ultimate responsibility is shared with the State, which is also required to comply or compel compliance159.
158 See, e.g. vol. 17 Halsbury's Laws of England para.
159 However, it is important to note that individuals who happen to be State officials but are addressed in their individual capacity are clearly obligated to comply in that capacity, and cannot hide behind their official duties. See, e.g. Pellet Brief at pp. 17-19.
D. Relevancy and Limits on Power to Issue Orders under Article 19
97. In addition to its primary argument that the subpoena duces tecum issued by Judge McDonald exceeded the authority granted the International Tribunal by the Security Council, Croatia alternatively argues that even if the subpoena duces tecum is valid, the documents requested therein are not relevant to the case against the accused before Trial Chamber I, the Chamber seized of the trial itself.
98. The subpoena duces tecum requested by the Prosecution in this case was issued pursuant to the power granted to the Judges of the International Tribunal by Article 19 of the Statute. Although neither the Statute nor the Rules mandate that the Judges conform to any specific requirements when issuing such orders, Article 19 does limit them to the issuance of orders "required for the conduct of the trial". However, there is little guidance to be found discussing that which is "required" for trial. It was not considered in the Secretary-General's Report nor was it debated in the Security Council after the adoption of resolution 827. Accordingly, a review of national laws on criminal procedure may provide guidance if they comport with the nature and purposes of the International Tribunal.
99. Although the use of the term "subpoena" by the International Tribunal does not incorporate its full meaning as expressed in any national system, because the common law provides for the issuance of subpoenas, it is appropriate to look at the manner in which they are utilized in common law systems as well as its limitations. Countries that follow the common law system, from which the subpoena duces tecum is derived, generally adhere to the policy that a "subpoena is not to be used as a bill of discovery. The writ may not be issued for a mere 'fishing' expedition"160. Thus, certain courts in the United States have noted that requests for "all documents" or "any and all documents" are not acceptable for a subpoena in criminal cases:
The United States Supreme Court has also ruled on this matter, in the leading case of United States v. Nixon162. In that case, the issue was whether the President at the time, Richard Nixon, was required to produce voice recordings of specifically identified conversations that were sought to be used in a prosecution against him. In upholding the subpoena, the Supreme Court noted that the process was available only if the prosecutor made a showing:
The court also noted that the prosecution had to show that the documents sought would contain "evidence admissible with respect to the offenses charged in the indictment"164. The United States Supreme Court has also stated that compliance with a subpoena should not be unreasonable or oppressive165.
160 American Jurisprudence, 2d ed. 1981,
"Witnesses" s. 14. See also Max-Planck-Institute Brief at p. 27.
161 United States v. Crosland, 821 F. Supp. 1123, (U.S. Dist. Ct., E.D. Va. 1993); see also United States v. Hand, 75 F.3d 1275, 1283 (U.S. App. Ct., 8th Cir. 1996) (title of document and conjecture regarding its contents is not enough to fulfil specificity and relevancy requirements).
162 418 U.S., supra note 38, at p. 700.
163 Id. at pp. 699-700 (footnote omitted), citing United States v. Iozia, 13 F.R.D. 335 at p. 338 (U.S. Dist. Ct., S.D. N.Y. 1952).
164 Id. at 700; see also New York Times et al. v. Jascalevich, 439 U.S. 1331, 1335 (U.S. Supreme Ct. 1978) (evidence sought by subpoena must meet a threshold level of materiality, relevancy and necessity). See Brown Brief at p. 5.
165 Hale v. Henke, 201 U.S. 43, 76 (U.S. Supreme Ct. 1906). See Gaja and Ciampi Brief at p. 5, agreeing that documents requested should be as specifically described as possible and that reasons for their production should be given if it is not self explanatory.
100. Such rules are not unique to the United States. For example, in England, it is well established that a subpoena must be issued in good faith for the purpose of obtaining relevant evidence166 and will be set aside if it is oppressive167. In regard to a subpoena duces tecum, the documents required must be identified with some specificity168. Similarly, the Malaysian Law of Criminal Procedure provides that
Thus, it appears widely accepted that the power of courts generally to order the production of evidence is limited to that which is relevant, necessary, or in some cases, desirable.
166 R. v. Baines  1 KB 258.
167 Steele v. Savory (1891) 8 TLR 94; Senior v. Holdsworth, ex parte Independent Television News Lts.  2 All ER 1009, CA.
168 See, e.g. Soul v. IRC,  1 All ER 68n.
169 Malaysian Criminal Procedure Code, Rule 51, para. 1 (F.M.S. Cap. 6), May 1991.
101. Certain international instruments contain similar provisions which may also provide guidance. In the Iran-United States Claims Tribunal, article 24, paragraph 3, of its rules grants the power to request the production of documents. That tribunal has been hesitant to order production of documents where the requesting party could not describe them specifically and if the tribunal was not satisfied that all possible steps to locate the documents had been taken, or if it felt that the request was not justified170. On the other hand, the European Court of Justice seems to allow broadly phrased requests, with the court ordering a defendant to produce all documents relating to the act in question before the court171. Such broad requests are, however, limited to the parties involved as the court held that it would not order the production by a party of documents drawn up by others172. As these tribunals and courts are not criminal in nature and were not created under the same circumstances as the International Tribunal, these cases are of limited relevance. Nonetheless, they tend to confirm that in the international setting there must be some specificity and relevance to the request for subpoena before compliance can be required by the International Tribunal.
170 See, e.g. MCA Inc. v. Iran, case no. 768, Order of
6 October 1983 (request denied where documents were not specified and there was no
explanation of any alternative effort at locating them); S. Baker, M. Davis, The
UNCITRAL Arbitration Rules in Practice (1993) 113; PepsiCo Inc. v. Iran,
13 Iran-US C.T.R. 3, 16-17 (1986) (request denied because court believed documents were
not necessary for determination of claim); Max-Planck-Institute Brief at p. 28.
171 Kalavross c. Court of Justice, (1990), case nos. T-160, T-161/89, ECR II-871, paras. 14-15.
172 Spie-Batignolles v. Commission (1990), case no. C-201/86, ECR I-197, Order of 16 December 1987 paras. 16-17 (analyzed in K. Lasok, The European Court of Justice - Practice and Procedure (2d ed. 1994) p. 384).
102. Accordingly, it is clear that the subpoena duces tecum is valid only if it seeks relevant and potentially admissible evidence. This inquiry does not end here, however, for this gives rise to the question of the manner in which this is determined. Again the Statute and Rules of the International Tribunal are silent on this issue, and a review of national legislation, to the extent that it comports with the nature and purposes of the International Tribunal, would prove helpful given that there is little guidance from international instruments.
103. Rule 17(c) of the United States Rules of Criminal Procedure provides that the subject of a subpoena duces tecum retains the right to contest its scope if he or she believes that the documents requested are not relevant173 or necessary, or that the production would cause an unnecessary burden. The laws of England are more specific, providing that if the subpoena is too general, it will not be enforced. These provisions also provide that if a witness objects to the production of the requested document, he or she must be sworn in order to make the objection under oath. The judge who tries the case then has the opportunity to determine the validity of the objection174. However, it is notable that this specificity is not required in the first instance; it is sufficient to make the request more specific after the initial issuance175. These rules apply not only at trials, but at any stage where the court deems it necessary176, although the information sought must be something that would be admissible at trial177.
173 Similarly, the Gaja and Ciampi Brief at p. 5 asserts that
a government official directed to comply should be allowed to question either his or her
competence to comply as well as the authority to submit the documents, but note that such
objection would be unlikely to succeed if the State asserted that the official is
competent and possesses authority.
174 See, e.g., Amey v. Long (1808) 9 East 473; R v. Greenaway (1845) 7 QB 126.
175 Soul v. IRC,  I All ER 68n.
176 RSC Ord. 38, r. 13(1).
177 RSC Ord. 38, r. 13 (2).
104. Thus, in these systems, it is apparent that once a subpoena is issued, it is then subject to challenge by the receiving party. Typical bases for challenging a subpoena duces tecum include that the order does not provide for sufficient time to produce the documents, that the requested documents do not exist, are not in the possession of the named party, or are not relevant, or that national interests would be at stake if the documents were produced178.
178 See Simma Brief at p. 19.
105. Similar procedures should apply in the International Tribunal. Although it is incumbent on the issuing Judge or Chamber to make a preliminary assessment of whether the requested items appear relevant and admissible and are identified with sufficient specificity, an in-depth review of the request is unnecessary and, in fact, could prove counter-productive as the subject of the subpoena always maintains the ability to challenge the subpoena. In issuing a subpoena, a Judge or Chamber is acting ex parte and perhaps without the benefit of a full understanding of all of the true issues that may arise at trial, and, therefore, the review of the request is, by its very nature, perfunctory. If the order is challenged, then there will be a full opportunity to resolve this issue, with the Judge or Chamber maintaining the authority to determine the validity of any challenges to the scope or issuance of a subpoena as a part of its inherent jurisdiction as an adjudicatory tribunal179. It is important to mention, as noted above, that objections do not absolve the subject of the subpoena from the duty to appear; the subject of the order must still appear before the International Tribunal and indicate the basis and extent of the objections180.
179 See, e.g. Nuclear Test Case (Australia v. France)
1974 ICJ Rep. p. 253.
180 See, e.g. Amey v. Long (1808) 9 East 473.
106. The subpoena duces tecum here at issue was executed by the Judge who confirmed the Indictment. Although this Chamber is empowered to hear challenges as to the relevance of the documents sought, it is considered more appropriate for the Trial Chamber seized with the case to make such determinations. This is so particularly since the trial in this case has commenced. In this case, Croatia has appeared before the International Tribunal to challenge the validity of the subpoena duces tecum as noted above. However, the primary objection was the validity of the order itself, and not the relevancy of the requested documents or the scope of the subpoena generally. Moreover, there has been no specific indication of the items requested to which Croatia objects. Accordingly, any determination of the scope, specificity, and relevance of the documents sought by the subpoena duces tecum is premature. If Croatia has such objections, they should be specifically brought to the attention of the Trial Chamber seized with the pending criminal case.
E. National Security Concerns
107. Croatia's final challenge to the validity of the subpoena duces tecum is that the protection of its national security181 constitutes a privilege which relieves it of any obligation to comply with such orders182.
181 In its Reply to Subpoena Duces Tecum dated 10 February
1997, the Government of Croatia stated that "[l]ike any other sovereign state,
[Croatia] reserves the right to observe the interests of its national security when
assisting the Tribunal" (Reply to Subpoena Duces Tecum dated 10 February 1997 at
182 See Wedgwood Brief at pp. 4 and 23. She notes that the documents requested from Croatia belonged to the community of Herceg-Bosna. She maintains that since Herceg-Bosna was never a sovereign state, it can hardly be argued that the production of the documents in question may prejudice the security of Croatia. Furthermore, she avers that the origin of the documents is relevant for the resolution of the present dispute since "many of the documents under subpoena were not created as a part of any state authority recognized as sovereign". She also notes that "documents created by agents of Herceg-Bosna were created for a rump entity, not a sovereign state. There is no imaginable claim to resist production of records of an entity that was never sovereign. What is more, Herceg-Bosna has ceased to exist". In oral argument, the representative of Croatia responded to the arguments raised by this amicus, and noted that the discussion should focus on the substance of the documents rather than on their origin.
108. In particular, it is the assertion of Croatia that a State may be excused from the obligation imposed by Article 29 of the Statute when the production of evidence sought by the International Tribunal could expose matters that are within the domain of its national security. Croatia asserts that it is a settled practice for States, in similar situations, to refuse requests for assistance from international courts on the grounds of national security. It further bases its assertion on its domestic law, which prohibits compliance with orders of the International Tribunal when its security may be jeopardized. In addition, Croatia notes that the Basic Criminal Code of Croatia provides that disclosure of confidential information by an agent of the government may lead to criminal prosecution183.
183 Art. 103 of the Code, "Revealing States Secrets", provides in para. (1) that: "[a]ny person who makes available a state secret confided to him or her to an unauthorized person shall be punished by imprisonment for not less than one year and not more than five".
109. The Prosecution contends that, in appropriate circumstances, the International Tribunal may give due regard to the legitimate security interests of a State, noting that in national legal systems, "the national security exception is a well-established doctrine in the criminal procedural law"184. However, the Prosecution avers that national security interests of a State must be balanced against the interest of the Security Council in ensuring an effective prosecution of serious violations of international humanitarian law committed in the territory of the former Yugoslavia.
184 Prosecution Brief at p. 28.
110. Thus, although Croatia and the Prosecution recognize that legitimate security concerns of a State may relieve it of its obligation to comply with orders seeking the production of government documents, they differ on the extent of that privilege. It is the submission of Croatia that the mere assertion of a claim of national security must be accepted by the International Tribunal. The Prosecution, on the other hand, is of the view that such a privilege does not operate automatically and that the International Tribunal must evaluate the claim in order to determine its validity. Accordingly, the Trial Chamber will first consider whether and to what extent the Statute or the Rules, expressly or implicitly, recognize such a privilege185.
185 For a discussion of national security claims before the International Tribunal, see Ciampi and Gaja Brief at pp. 5-6; Simma Brief at pp. 5-6, Pellet Brief at p.11, Max-Planck-Institute Brief at pp. 19-25 and amicus curiae Brief by Thomas S. Warrick, Rochelle E. Stern, J. Stefan Lupp (hereafter "Warrick, Stern and Lupp Brief").
1. National Security as a Privilege
111. In general, a privilege is understood as "[t]hat which releases one from the performance of a duty or obligation, or exempts one from a liability which he would otherwise be required to perform". A State secret privilege "is a long-standing evidentiary privilege that permits governments to resist discovery of evidence if disclosure reasonably could been seen as threat to military or diplomatic interest of nation"186.
186 Black's Law Dictionary at pp. 1197 and 1409.
112. The Statute and the Rules do not include any express reference to exceptions or privileges which a State may invoke to derogate from its obligation to comply with orders of the International Tribunal. Nor does the Secretary-General's Report or resolution 827 contain any reference to the security or other essential interests of States. Nonetheless, the Statute and the Rules contain explicit reference to other privileges such as the privilege against self-incrimination, the lawyer-client privilege and the work product privilege187.
187 See Rules 70(A) and 97, and Art. 21(4)(g) of the Statute.
113. The ability to protect national security interests is, however, contemplated in the Rules. According to Sub-rule 66(C), the Prosecutor may seek from the Trial Chamber relief from the wide-ranging disclosure obligations contained in Sub-rule 66(A) on the grounds that it may be necessary to protect sensitive information related to a State. It provides that:
Thus, Sub-rule 66(C) tempers the general obligation of disclosure by the Prosecutor with considerations of national security189.
188 The Rule, when read as whole, contemplates that the
information is already in possession of the Prosecutor and therefore the assumption is
that States have made it available, in spite of its confidential nature.
189 See Warrick, Stern and Lupp Brief at p. 2, averring that the "Tribunal's rules already recognize that the security interests of a State provide a legitimate reason not to disclose otherwise material information to the defense".
114. In a similar manner, Sub-rule 70(B) protects from disclosure the source from which the Prosecutor receives information in confidence, when such information is used solely for the purpose of generating new evidence. Pursuant to this Sub-rule, the Prosecutor will not disclose either the information or the identity of the source without the consent of that source. In the case of a State which supplies information to the Prosecution, the State in question will be guaranteed that the information provided will not be disclosed without its consent190. Thus, Sub-rule 66(C) and Sub-rule 70(B) illustrate the fact that the International Tribunal has attached significance to issues involving the security interests of, or any other confidential information concerning, States.
190 Id. at p. 3: "[A]ny State that provides information to the Prosecutor under Rule 70 is assured that the information will not be further disclosed without consideration being given to its national security interests in the information" .
115. In conclusion, although the refusal of a State to produce evidence on the ground that such action would be prejudicial to its security interest is not explicitly provided for in the Statute or the Rules, the Judges of the International Tribunal, in creating the Rules, recognized the need to protect the secrecy of information relating to national security. The lack of a provision stipulating the privilege as such is an implicit recognition that claims of national security cannot encumber the capacity of the International Tribunal to carry out its mandate effectively.
(a) National Security and Other International Tribunals
116. Given that the Rules and the Statute do not resolve the question, a review of considerations of national security claims by other international tribunals and of the attitude of States towards producing information related to national security before international courts is necessary in order to determine the legitimacy of such claims in international fora191.
191 See Sandifer at p. 377, noting that the privilege concerning State secrets does not appear to "have risen in international tribunals in a manner requiring formal consideration in the opinions of such tribunals, except in certain instances in proceedings before the Permanent Court of International Justice".
117. In the Corfu Channel Case192, the ICJ, pursuant to article 49 of its statute, requested the Government of the United Kingdom to produce certain documents. The United Kingdom, nonetheless, maintained that the evidence required by the court was related to matters of naval secrecy and failed to comply with the request. In its judgment, the ICJ abstained from drawing a negative inference from the refusal of the Government of the United Kingdom to submit the evidence in question.
192 Supra note 69.
118. In the Godínez Cruz Case193, the Government of Honduras was requested by the Inter-American Court of Human Rights to produce evidence concerning the structure of its armed forces. The Government averred that the evidence sought was intimately related to the security of the State. Nevertheless, the Government of Honduras did not refuse to produce the evidence and was permitted by the court, upon request, to present the testimony in a closed session due to "strict security reasons of the State of Honduras"194.
193 GodÌnez Cruz Case, Judgment of January 20, 1989,
Inter-American Court of Human Rights (Ser. C) No. 5, 1989 (hereafter "Godinez Cruz
194 Id. at paras. 33-35.
119. The European Court of Human Rights in The Observer and the Guardian v. the United Kingdom was concerned with an alleged violation of article 10 ("Freedom of Expression") of the ECHR. In this case, the court acknowledged that interests of national security may constitute a valid category of "legitimate aim" necessary for a derogation from an international obligation195.
195 Unlike the present situation where Croatia seeks to avoid producing documentary evidence based, inter alia, on national security justifications, the case before the European Court of Human Rights involved a government using legal proceedings to try to halt the publication of certain information by two newspapers, information which had already been disseminated in print and TV media.
120. In international administrative tribunals the question of whether a party is obliged to produce documents, in spite of their confidential nature, has not arisen frequently196. Where this has been considered, the tribunal, once satisfied of the relevancy of the information, generally has ordered that such evidence be given to the tribunal, and has declined to communicate it to the applicant party197.
196 C.F. Ameransighe, "Problems of Evidence before
International Tribunals" in Lillich at p. 211.
197 Ballo Case, ILOAT Judgment No. 191  (UNESCO); Molina, ILOAT Judgment No. 440  (WHO), Alikhan, ILOAT Judgment No. 556  (ILO).
121. In the discussions of the Preparatory Committee on the Establishment of an International Criminal Court, concerning the issue of State cooperation with the court and the limitations to this cooperation, the view was expressed that, in general, traditional exceptions regarding cooperation should not be applicable "given the serious nature of the crimes and the interest of the international community in the effective investigation and prosecution of those crimes". More specifically, with regard to the issue of national security, it was considered that national security may constitute a legitimate exception provided that it is limited in scope. Thus it was noted that "recognising a broad exception based on public or national security interests" would obstruct the effective functioning of the court198.
198 Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. 1 (Proceedings of the Preparatory Committee during March-April and August 1996) General Assembly, Official Records, fifty-first Session, Supplement No. 22 (A/51/22) at p. 69.
122. This general overview demonstrates that, in a few instances, the issue of production of evidence related to national security has been considered by various international tribunals, which have each approached the issue in a distinct manner. As has been noted before, each of the above-mentioned tribunals operates in a different context from the International Tribunal. With the exception of the proposed International Criminal Court, none of them is of an international criminal nature. Furthermore, none of these tribunals have been established by the Security Council as an enforcement measure under Chapter VII. In general, they are bodies concerned mainly with the resolution of disputes where at least one of the parties is a State. They may thus penalize a recalcitrant State by drawing an adverse inference, which could ultimately affect the outcome of a particular case199.
199 See supra Section A. 4. See also Simma Brief at p. 5.
123. Given that the Prosecution and Croatia submit that national security is a privilege generally upheld in national law, it is therefore equally appropriate to survey major national legal systems to determine the correctness of their assertions.
(b) National Security and National Law
124. In municipal law, there are established privileges which may excuse a party to proceedings, or a witness, from producing evidence commanded by a court order. In general, these privileges seek to protect an interest that is considered fundamental, amongst which is the protection of the security of the State. Accordingly, there are norms which prohibit the revelation of information which constitutes a State secret or is qualified as confidential on the basis of a determination by a member of the executive branch of government. Moreover, in municipal law, a State official who discloses information which his government has thus characterized may be punished in accordance with the national law.
125. In the United States such a privilege protecting military secrets from disclosure is well established200. The Supreme Court held in United States v. Reynolds et al201 that non-disclosure of evidence on security grounds is "a privilege [that] belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party". However, the court emphasized that it is not a privilege "to be lightly invoked"202. Similarly, the Law of Evidence of Canada provides that information may be retained in order to protect international relations, national defence or the security of the State203. In Pakistan, no one may provide evidence from unpublished official records relating to any affairs of State, except with the permission of the head of the department concerned. According to a commentary to the law, the privilege is only to be exceptionally exercized204. Furthermore, under Costa Rican law, official functionaries are not obliged to testify in relation to secrets of the State205. The German Strafprozessordnung contains express provisions prohibiting the forced gathering of documentation in official safe keeping by governmental agencies or civil servants if their superior agency declares that the publication of the case file or documents would be detrimental to the welfare of the Federal Republic or of a German state206. In France, the Code Pénal provides that disclosure by a state agent of classified documents relating to national defence may be punishable by seven years imprisonment and a fine207. Lastly, in the United Kingdom, the Crown may withhold information which it considers essential to its national security208.
200 See e.g. Totten, Admin. v. United States, 92 U.S.
105 (U.S. Supreme Ct. 1875) and Hudson River Sloop Clearwater, Inc. v. Department of
the Navy, 1989 WL 50794 (U.S. Dist. Ct, E.D. N.Y. 1989) (unreported case).
201 345 U.S. 1 (U.S. Supreme Court, 1953).
202 The court held that "in each case, the showing of necessity which is made will determine how far the court should probe itself that the occasion for invoking the privilege is appropriate . . . but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake". Id. at p. 11.
203 Canada Evidence Act (Loi sur la Preuve) at s. 38, as reprinted in 1996 Annotated Canadian Evidence Acts (Beach ed.).
204 Law of Evidence of Pakistan, Order X of 1984, art. 123. Reprinted by Mahmood and Shaukat (eds.) 1991.
205 Cûdigo de Procedimientos Penales as reprinted in Cûdigo de Procedimientos Penales: Anotado, Concordado y con jurisprudencia, Art. 229 (Dobles Ovares ed. 1994).
206 Strafprozessordnung at s. 96. Reprinted by Kleinknecht and Meyer (eds.) 1995.
207 Nouveau Code Pénal, Art. 413-9, s. II, "Des atteintes au secret de la défense nationale".
208 208. Archibold, vol. 1, 1995 at para. 12-42
126. This cursory review of municipal law indicates that national security interests may constitute a legitimate limitation on the obligation of States to disclose or produce information before municipal courts of law. Considering that under international and national law, there is a general acceptance of claims concerning the security of the State, it is also important to examine whether States, in the legislation which they have enacted to cooperate with the International Tribunal, specifically envisaged this privilege in relation to their cooperation with the International Tribunal.
(c) National Legislation on Cooperation with the International Tribunal
127. Thus far, 20 States have enacted legislation implementing Security Council resolution 827 for cooperation with the International Tribunal209. A review of this legislation reveals that several States have included provisions contemplating the possibility of declining to cooperate with the International Tribunal on grounds of national security. Other States have indicated that cooperation with the International Tribunal will be in accordance with their national laws210. The Austrian Law on Cooperation with the International Tribunal provides that material which is subject to special security provisions or has a bearing upon national security, particularly military matters, may be retained if the Federal Minister of Foreign Affairs, after consulting the most relevant senior administrative authority, determines that the interests of secrecy substantially outweigh the interests of transmitting the exhibits for the purposes of international criminal prosecution. Nonetheless, the International Tribunal will be consulted by the Austrian authorities as to whether it can guarantee that the information be kept secret, if disclosed211.
209 Resolution 827 emphasizes that all States shall take any
measures under their domestic law to implement the provisions of the present resolution.
The States that have passed implementing legislation to cooperate with the International
Tribunal are: Italy, Finland, The Netherlands, Iceland, Spain, Norway, Sweden, Denmark,
France, Bosnia and Herzegovina, Germany, Australia, Switzerland, New Zealand, United
States, United Kingdom, Belgium, Republic of Croatia, Austria, Hungary.
210 See, e.g. the "Law on the recognition of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda and cooperation with those Tribunals" enacted by the Kingdom of Belgium on 22 March 1996. Chapter III, "Judicial Cooperation", art. 9 provides that "requests from the Prosecutor or orders of the Tribunal seeking measures for collection and production of facts which inter alia concern the identification and search for individuals, the gathering of testimonies, the production of evidence and the sending of documents which are necessary for the investigation or proper conduct of the trial shall be implemented in accordance with the rules set forth by the Belgian law" (unofficial translation) .
211 Austrian Federal Law on Cooperation with the International Tribunals (entered into force on 1 June 1996) s. 12.
128. The New Zealand legislation on cooperation with the International Tribunal provides that the Attorney General may decline to comply with requests of the International Tribunal when such request would prejudice the sovereignty, security, or national interests of New Zealand212. The Act also provides that, where the Attorney General so declines, he shall give reasons to the International Tribunal for his decision213. Similarly, Australian law provides that documents and other articles need not be produced if, in the opinion of the Attorney General, complying with the request would prejudice Australia's national sovereignty, security or national interest, or there are exceptional circumstances justifying non-compliance214.
212 New Zealand International War Crimes Tribunals Act 1995,
213 Id. s. 59(2).
214 Australian International War Crimes Tribunal Act 1995 s. 26(3). It is worth noting that executive decisions taken pursuant to this Act are subject to the Administrative (Judicial Review) Act of 1977.
129. In conclusion, it is clear that some States have expressed their reservations about compliance with orders of the International Tribunal when, in their opinion, their national security is compromised. As noted above, however, certain States will allow disclosure of sensitive information concerning their security to the International Tribunal, provided that the International Tribunal implements safeguards to maintain the secrecy of the information215.
215 Austrian Federal Law on Cooperation with the International Tribunals, s. 12.
130. Having considered other international tribunals and municipal law, it is clear that a national security privilege may be invoked in certain circumstances and with certain safeguards. However, the bearing that the practice of these tribunals and national laws have on the State's duty to cooperate and comply with orders of the International Tribunal must be determined by a consideration of the International Tribunal's specific character and nature.
2. The Specific Nature of the International Tribunal
131. The International Tribunal, as a criminal tribunal which has been mandated to prosecute serious violations of international humanitarian law, is fundamentally concerned with issues which may involve the national security of States, in particular, those of the region of the former Yugoslavia216. Further, the International Tribunal, pursuant to Article 7 of the Statute, is empowered to prosecute alleged perpetrators of serious violations of humanitarian law, who may include Heads of State or Government, or any other responsible Government official217. In such cases, where the determination of command responsibility lies at the core of the case, the International Tribunal must ensure that the parties have access to information which will meet the standard of proof required. Thus, information relating to military operations will be vital in such cases218. A unilateral right of a State to withhold information necessary for the proceedings on national security grounds would prejudice the capacity of the International Tribunal to ensure a fair trial219.
216 See Gaja and Ciampi Brief at p. 5. In the brief it
is stated that "[b]ecause of the nature of the international crimes within the
jurisdiction of the International Criminal Tribunal for the former Yugoslavia, a
substantial part of the documents relevant to the cases before the International Tribunal
-especially military documents- will fall into the category of State secrets and/or will
have to do with State security".
217 See Brown Brief at pp. 5-6, noting that the Security Council's unprecedented decision to endow the International Tribunal with primacy over national courts would make little sense if the International Tribunal did not have the power to order the production of relevant evidence from a State.
218 See Wedgwood Brief at p. 17 indicating that "military records of belligerents are important as proof of guilt or innocence". Wedgwood states that "Croatia is within the territory of the former Yugoslavia, and the subpoena calls for documents created in those territories since 1991, during a conflict in which both states were de facto belligerents".
219 Id. at p. 15. In Wedgwood's opinion the concept of availability of national military information is recognized under the provisions of the Geneva Conventions of 1949 and the Convention on the Prevention and Punishment of the Crime of Genocide. She argues that Croatia as a party to those instruments cannot invoke its national security as grounds for non-compliance with the International Tribunal's orders.
132. The obligations of States to the International Tribunal as a Chapter VII mechanism take precedence over any national laws or claims of national security, since States, upon signing the United Nations Charter, relinquish certain aspects of their sovereignty in relation to international peace and security. The Security Council, with primary authority over matters affecting international peace and security, exercised its enforcement powers and established the International Tribunal as a response to a conflict threatening the security and peace of the international community. Hence, national security concerns of individual States cannot override international interests. Moreover, the absence in the Statute of express exceptions to the obligation of States to comply with orders of the International Tribunal is indicative of the Security Council's resolve to establish an effective mechanism through which the International Tribunal could secure the fulfilment of its mission.
133. It would be contrary to the spirit and the language of the Statute and to the nature and purpose of the International Tribunal to permit a State to invoke, absolutely, a national security privilege220. Further, such a position would jeopardize the International Tribunal's obligation to ensure a fair and expeditious trial and to afford the accused rights guaranteed by the Statute, for which access to evidence is a sine qua non221. Furthermore, the Trial Chamber reiterates that States may not detract from their international obligations on the basis of their national laws.
220 Id. at p. 19. Wedgwood emphasizes that the power
of the International Tribunal to compel production of evidence from military archives of
the former belligerents is a necessary condition for the International Tribunal to perform
its adjudicative task. See also Gaja and Ciampi Brief at p. 5, in which it is stated that
"[s]hould the requested State be free to object to complying with the order for
reasons of security, the Tribunal would be deprived of means for securing much of the
221 See Simma Brief at p. 6, noting that "in light of the specific purpose and tasks of the Tribunal, national security interests cannot possibly serve as a justification since the Security Council explicitly ordered unconditional cooperation with the Court (Art. 29 of the Statute)".
134. Considering the presumptio juris of bona fide compliance with international obligations and that national security is not an absolute privilege, the Trial Chamber accepts the importance of claims of this nature when invoked by a State222. Thus, the Trial Chamber must examine the extent of the competence of the International Tribunal to review a claim of national security before it can decide whether to accept such a claim.
222 See Pellet Brief at p. 11, arguing that on some specific points, national interests of a State may legitimately limit its obligation to cooperate with the International Tribunal.
3. Review by International Tribunals of a Claim of National Security
135. Croatia argues that once a State refuses to comply with an order for the production of evidence on grounds of its national security, such an assertion must be accepted by the International Tribunal. It submits that, even in international tribunals where States are parties to disputes, a State's assertion of national security is respected, citing the Corfu Channel Case223. In the opinion of Croatia, neither the Prosecution nor the International Tribunal is in a position, or has the competence, to judge the national security interests of Croatia or of any other State. A determination of such nature should be, in its view, left solely to the discretion of the State concerned224.
223 Supra note 192.
224 The representative of the Croatian Association of Criminal Science and Practice, during his oral submission, supported this position observing that only Croatia can assess whether its national security is at stake.
136. Croatia argues that at the national level, domestic courts, which may in fact have the power to review a national security privilege claimed with respect to confidential information sought in evidence, have a unique relationship with the State seeking to protect national interests. National courts are organs of the same sovereign State and, as such, are in a suitable position to adequately protect the interests of the sovereign. The lack of a similar relationship between the International Tribunal and a particular State to that existing between domestic courts and the State to which they belong prevents the Tribunal from ascertaining the State's security needs. The International Tribunal, not a constituent part of the Croatian legal system, is not accountable to Croatia or to the Croatian people. Hence, the International Tribunal cannot make a security determination, which, by itself, is an exercise of sovereignty.
137. The Prosecution, on the other hand, maintains that the determination of the legitimacy of a claim of national security lies within the International Tribunal's jurisdiction. It concedes that, at the national level, courts exercising the power of review "share both the interest in the effective administration of justice as well as the interest in protecting national security". According to the Prosecution, however, nothing precludes the International Tribunal from exercising its jurisdiction in a manner similar to national courts, where the executive branch may not, in fact, invoke a national security privilege without restriction225.
225 The Prosecution argues that because of its primacy, the International Tribunal sits as a national court of the former Yugoslavia and thus, should have all of its powers.
138. In order to resolve this question, the Trial Chamber will review both the practice of international tribunals and of national courts.
(a) The Practice of Other International Tribunals
139. The sparse case law of other international tribunals does not provide authoritative guidance226. While in the Corfu Channel Case, the United Kingdom did not comply with the request of the court on grounds of national security and the court accepted those assertions227, in the Godínez Cruz Case before the Inter-American Court of Human Rights, the State of Honduras honoured its international obligations and produced evidence in spite of its sensitive character228. However, the power of an international court to review claims of national security is expressly stated in article 225 of the Treaty establishing the European Community, pursuant to which the European Court of Justice may review such claim of national security if invoked by a State229.
226 See Sandifer at pp. 380-381. In the Sabotage
Claims (Lehigh Valley R.R.., Agency of Canadian Car and Foundry Co.,) before the
United States-German Mixed Claims Commission, the Umpire rejected the application by the
German Agent to inspect files in the Department of Justice of the United States. The
Umpire, however, reviewed the information which the German Agent was seeking. Sandifer
notes that "in the exercise of the discretion conferred upon it, the tribunal should
itself determine when the confidential character of any evidence warrants a party being
exempted from producing it".
227 See Corfu Channel Case at p. 32.
228 See GodÌnez Cruz Case at para. 36.
229 Article 225 of the European Community Treaty provides that "the Commission or any Member State may bring the matter directly before the Court of Justice if it considers that another Member State is making improper use of the powers provided for in Articles 223 and 224. The Court shall give its ruling in camera". Art. 223(1)(a) states that "no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security" (emphasis added). For further discussion see K. Lasok, The European Court of Justice, Practice and Procedure, 2nd Ed. (1994) at pp. 411-412. Lasok notes that "[i]t seems . . . that a member state is only entitled to refuse to supply information which falls within a category of matters, defined objectively by the Court in light of the purposes and objectives of the Treaty and the principles common to the members states, relating to 'security'". With respect to the Euratom Treaty, Lasok further points out that there is no express provision preventing the disclosure of sensitive information related to national security of a member state to the Court.
140. In view of the inconclusive nature of the existing jurisprudence in international law, an examination of the question of whether national courts have authority to review claims of national security may provide some guidance. Croatia asserts, however, that the power of the International Tribunal to review claims of national security may not be inferred from the power which national courts may have in this regard since national courts have a singular relationship with the State. This argument is not convincing, for although the judiciary and the executive are constituent components of a State, these two branches function independently from one another. National courts reviewing actions or decisions of the executive exercise that function based on the separation of powers doctrine230. Accordingly, national courts vested with the competence to verify privileges invoked by the executive branch exercise that function in their capacity as independent judicial organs and not merely as constituent parts of the apparatus of the State. Hence, an examination of the competence of the national courts is required.
230 See United States v. Nixon, supra note 38, at p. 704 and 706, where the Supreme Court of the United States held that "neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances". The court also held, citing Powell v. McCormack, 395 U.S. 486 (1969), that "[o]ur system of government 'requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch'".
(b) The Practice of National Courts
141. In the United States of America, the Supreme Court held in United States v. Reynolds that it fell within the competence of the court to determine the appropriateness of the circumstances under which a privilege of national security was invoked231. Although in this case the court was strongly in favour of non-production of documents when such production could jeopardize the military security of a State, the court noted that "regardless of how [the privilege] is articulated some like formula of compromise must be applied here". Further, the court said that
The court asserted that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers"233. However, it noted that it was not prepared to "go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case". It further held that "it may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters, which, in the interests of national security, should not be divulged". In sum, according to Reynolds, courts may examine whether the privilege of national security has been properly invoked. This may or may not entail the production of the documents in question to the court.
231 The circumstances of the case are key. First, it was
during a time of crucial preparation for national defence. Second, it mentioned that it
involved a military aircraft, a kind of war machine which was vital for military victory
in the Second World War. Furthermore, the court considered that the evidence sought was
not necessary to resolve the case. The court ultimately decided not to review the
232 See United States v. Reynolds, 345 U.S. 1, at p. 9, quoting Hoffman v. United States 341 U.S. 479 (U.S. Supreme Ct. 1951) at pp. 486-487.
233 See id. at p. 10.
142. In a more recent case, the Federal District Court in New York, considering Reynolds, stated that "the [c]ourt has the power to examine assertedly privileged material in camera in order to rule on whether the privilege is validly claimed or not234. It also cited Zweibon v. Mitchell235, which found that "[o]f necessity, in camera judicial inspection will often be imperative if a judge is to fulfil his own constitutional obligations".
234 See Hudson River Sloop Clearwater, Inc. v.
Department of the Navy, 1989 WL 50794 (U.S. Dist. Ct, E.D. N.Y. 1989) (unreported
235 516 F. 2d 594, 625 n. 80 (U.S. App. Ct. D.C.Cir.1975).
143. In United States v. Richard Nixon, the Supreme Court examined the question of whether, in cases where a court has required the production of evidence, there can be judicial review of a claim of privilege invoked by the President relating to confidential information. In determining the question, the court noted the distinction between confidential information and information related to national security. Thus, it recognized that courts have shown utmost deference to assertions made by a President seeking to protect military or diplomatic secrets, in contrast to cases where the President makes a general assertion aiming at protecting his confidential communications. With regard to the latter case, the court affirmed that "it is in the province and duty of the Courts to 'say what the law is' "236, in order to preserve the integrity of the judicial process. In addition, the court held that "the impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III"237. This position taken by the Supreme Court with respect to the role of the judiciary in the review of executive action should not be interpreted in detriment of the court's authority to exercise such review, even when the privilege claimed relates to military information.
236 See United States v. Richard Nixon at p. 705.
237 Id. at p. 707.
144. In the United Kingdom, the concept of State interest immunity (formerly known as "Crown Privilege") guarantees that information, the disclosure of which would be prejudicial to the interests of the State, may not be disclosed. However, the case of Conway v. Rimmer and Another limited the scope of the privilege by deciding that a court may order the disclosure of privileged information in certain circumstances238. The House of Lords held in that case that, when deciding whether to order the disclosure of privileged material, a court may order the production of the relevant documents to facilitate its determination of whether or not their disclosure would be injurious to the public interest. The scope of the court's power to inspect evidence is limited, however, when it pertains to matters of national security as, once a risk to national security is asserted, a court should not exercise its right to inspect, since it is not deemed competent to evaluate such information. This rule also applies in criminal cases with the added proviso that the court is under a positive duty to consider the likelihood of a miscarriage of justice if an order for disclosure is not made. Thus, if the court is of the opinion that the only way to determine the likelihood of a miscarriage of justice is by inspecting the evidence, it must order disclosure. It is then for the Crown to decide whether to withhold the material or abandon the criminal prosecution239.
238 See Conway v. Rimmer and Another (HL)
 AC 910, where Lord Reid held that there are two fundamental public interests which
need to be protected: the interest that a nation may not be harmed by disclosure of
certain documents, and the public interest that the administration of justice is not
frustrated by the withholding of documents which are necessary for the case.
239 See also R. v Ward, 96 Cr. App.R. 1, 57, C.A.
145. In Canada, in cases where an objection is raised to the production of evidence on the basis that production would be injurious to the national defence or security of the State, the Law of Evidence entitles the Chief Justice of the Federal Court, "or such other judge of that court as the Chief of Justice may designate, to hear such applications" and assess the legitimacy of the objection240. In Pakistan, the court must determine, in certain circumstances, whether such a privilege has been validly raised. The protection of the public interest is a fundamental consideration, which the court must take into account241. Under the Yugoslav Law on Criminal Procedure, the final determination as to whether a refusal of a government body or an agent to show or surrender documents is taken by a panel of judges242. In Australia, the Attorney General's certification that information may not be disclosed for the reason that it would prejudice the security, defence or international relations of Australia is authoritative and must be adhered to by the court243. Nonetheless, this certification does not affect the power of the court to order the production of documents to it 244.
240 Canada Evidence Act (Loi sur la Preuve), supra note
203 at s. 38(1).
241 See SH. Shaukat Mahood and SH. Nadeem Shaukat, The Law of Evidence, Qanun-E-Shahadut, vol. I, 2nd ed. (1991). The commentary to the law states that "if the privilege is claimed on the ground that the document relates to the affairs of the State which means matters of public nature in which a State is concerned and disclosure of which will be prejudicial to public interest or endangers national defence or is detrimental to good diplomatic relations then the general rule [of judicial review] ceases to apply and the Court shall not inspect the document or show it to the opposite party unless the validity of the privilege claimed is determined". It further asserts, however, that "[f]or, this purpose the Court has abundant power to inspect the document in order to determine the validity of the claim of privilege". It therefore appears that the court has the right to review the documents in making the determination.
242 Yugoslav Law on Criminal Procedure 1977, art. 212(1)
243 Administrative Decisions (Judicial Review) Act 1977, s. 14(1). See also B.W. Patton and The Honourable Kim Christian Beazley, Minister of State for Defence and The Commonwealth of Australia, unreported case, Federal Ct. of Australia, 11 September 1985 at para. 7, where Judge Pincus held that "the well-known statement that 'those who are responsible for national security must be the sole judges of what the national security requires' does not mean that evidence is unnecessary to establish that national security is involved in the case, nor that the opinion of the Crown as to such matters is conclusive". He also observed that "the cry for 'national security' can be used to encompass all kinds of alleged internal threats and the notion that, once it is uttered by the authorities, the rule of law has but an attenuated application has never taken hold here".
244 Administrative Decisions (Judicial Review) Act 1977, s. 14(4).
146. In sum, although there is a recognition in national laws that administrative decisions on questions of national security may be subject to review by the judiciary, the scope of this review is, in general, subject to the particular circumstances of each case and the interests of a particular State. However, national systems share similar concerns regarding the elements to be considered by a court when faced with claims of such nature and the need to uphold the judge's control over the proceedings.
(c) The International Tribunal
147. The possibility that a Trial Chamber of the International Tribunal may examine confidential information related to the security of a State is already contemplated by the Rules. Pursuant to Sub-rule 66(C), the mere assertion by the Prosecutor that information in its possession may affect a State's national security does not in itself constitute sufficient ground to relieve it from the general obligation of disclosure. On the contrary, the Trial Chamber must be satisfied that the information is indeed confidential before granting it protection from disclosure. In such cases, the Prosecutor must give the reasons for its objection to disclosure and furnish the Trial Chamber "with the information that is sought to be kept confidential" (emphasis added)245. Hence, in a similar manner, a State invoking a claim of national security as a basis for non-production of evidence requested by the International Tribunal, may not be exonerated from its obligation by a blanket assertion that its security is at stake. Thus, the State has the onus to prove its objection246. Although the State has the authority to determine that which endangers, threatens or compromises its national security, it must be specific in its refusal to comply with an order of the International Tribunal, and it is the refusal itself that the International Tribunal is called to assess with the State in question substantiating the basis of its assertions247.
245 Sub-rule 66(C).
246 The notion of submitting confidential government documents for examination by the Trial Chamber, however, was contemplated by the Government of the United States of America in its Suggestions for Rules of Procedure and Evidence. The proposal of the United States envisaged that the Trial Chamber would have a right to review, in camera, information provided to the International Tribunal "which the State believes necessary to protect as a matter of national security, ordre public, or other essential interest". Proposed Rule 8.2 provided that national security information of a State could not be disclosed to the public without the prior approval and consent of that State. The commentary of the proposed rule states in relevant part that "information provided to the International Tribunal by a State, which the State believes necessary to protect as a matter of national security, ordre public, or other essential interest, may initially be reviewed by the Trial Chamber in closed proceedings or in camera. If the Trial Chamber determines that the information is relevant, it should notify the State of the action it intends to take which may result in disclosure". Cited in Insider's Guide, vol. II, at p. 523.
247 See Pellet Brief at para. 26, noting that "the Tribunal is the only judge of the legitimacy of such claims which the State in question must explain to it precisely and with reasons". Pellet further contends that it would be a reasonable procedure to conduct in camera sessions for the purpose of reviewing claims related to national security.
148. Consequently, for the purpose of determining the validity of the assertions of a particular State relating to national security concerns, the Trial Chamber may hold in camera hearings, in a manner which accords with the provisions of Sub-rule 66(C) and Rule 79248. Furthermore, with a view to safeguard the secrecy of the information it may initially conduct an ex parte hearing in a manner analogous to that provided for in Sub-rule 66(C). Thus, the evidence in question may be produced to the Trial Chamber or Judge and not necessarily to the requesting party. Moreover, the Trial Chamber is of the opinion that any decision regarding an objection raised by a State to produce evidence requested by the International Tribunal on the grounds that it compromises its national security is best considered by the Trial Chamber seized with the criminal case in question.
248 See Wedgwood Brief at pp. 24-25. Furthermore, the need to conduct in camera proceedings in order to protect information sensitive to the security of a State has been recognized by the International Covenant on Civil and Political Rights in article 14. This article provides that "[t]he press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice" (emphasis added).
149. In conclusion, given that Article 29 of the Statute imposes upon States an unconditional obligation to comply with orders of the International Tribunal and that the International Tribunal determines the extent of the cooperation it requires from States in order to perform its functions, the International Tribunal is in a unique position to judge whether a national security claim has been legitimately invoked. Taking into account the interests at stake, namely those of the international community in the restoration of peace and the bringing of justice to the former Yugoslavia, the International Tribunal is best positioned to ascertain the legitimacy of a claim of privilege249. In assessing the merits of an objection, the International Tribunal must consider two fundamental interests, the interest in upholding the national security interest of a State and the interest in gaining access to the evidence critical to the prosecution or defence in cases relating to serious violations of international humanitarian law250.
249 See Warrick, Stern and Lupp Brief noting that the
International Tribunal can best balance the interests of international justice with the
national interests of States, either through the adoption of a rule or through
adjudication. The representative of Max-Planck-Institute, during his oral submission, also
noted that a State claiming national security as grounds for non-compliance with orders of
the International Tribunal has the burden to substantiate that claim before the
250 See Gaja and Ciampi Brief at p. 6, where it is submitted that "while it may be true that in many national systems State secrets cannot be broken by courts, the same cannot apply with regard to the Tribunal". Ciampi and Gaja, however, observe that the International Tribunal should respect "as far as possible - consistently with the proper use of its judicial functions - State secrets". They also propose the use of in camera sessions whenever the issue of national security interest arises before the International Tribunal.
III. SUMMING UP
150. In conclusion, a Judge or Trial Chamber of the International Tribunal has the authority and power to issue orders to States and individuals, including high government officials, for the production of documents required for the preparation or conduct of a trial. Moreover, these orders may properly be termed subpoenae duces tecum and, as such, there is a clear obligation on both States and their officials to comply fully with their terms. Any objection to an order for the production of documents, including a claim that a State's national security interests could be threatened by disclosure, does not automatically excuse the State or individual from compliance. Rather, such claims must first be assessed by the relevant Trial Chamber.
151. Regarding the role of the International Court of Justice, Judge Mohamed Shahabuddeen has recognised that
Mindful of this warning, the Trial Chamber has considered the arguments raised by the parties and the amicus curiae in a manner intended to give effect to the nature and purposes of the International Tribunal.
251 Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Order of 9 March 1988 (ICJ Rep. 1988, 3) at p. 63, Separate Opinion of Judge Shahabuddeen (quoted by Wedgewood during oral submission, at TP 324).
152. In rendering this Decision, the Trial Chamber has exercised its power to interpret the Statute and Rules in accordance with the proper meaning of their terms and considering their object and purpose. Due to the unique nature of the International Tribunal, there is no international analogue to provide direct precedent. Therefore, resort to recognized procedures of other international courts and tribunals and national courts in both common and civil law systems was necessary to ascertain general principles of law which comport with the nature and purposes of the International Tribunal.
153. This process necessarily raises concerns regarding judicial interpretive powers, some of which relate to the perceived predominance of the State in international law. Despite this State-centric view, the International Tribunal is a judicial institution which, by its very nature, advances the development of international criminal procedure. Moreover, the International Tribunal should not be frustrated by a restrictive approach which is inapplicable to an institution established as an enforcement measure by the Security Council pursuant to Chapter VII of the United Nations Charter. Therefore, when interpreting the Statute and Rules, it should adopt an approach which is appropriate for such a pioneering institution.
154. The International Tribunal was established to aid in the restoration and maintenance of peace in the former Yugoslavia. As a criminal court, its primary obligation is to provide a fair and expeditious trial and to guarantee the rights of the accused. This adjudicatory process strengthens the rule of law, a fundamental principle shared by all members of the international community. If effective, this may contribute to reconciliation, which is a precondition for lasting peace. Thus, the Trial Chamber cannot endorse the contention that States and government officials have no obligation to comply with orders of the International Tribunal.
For the foregoing reasons,
THE TRIAL CHAMBER, being seized of objections registered by the Republic of
PURSUANT TO RULE 54,
HEREBY REINSTATES the Subpoena Duces Tecum issued on 15 January 1997 by Judge
McDonald to the Republic of Croatia and Croatian Defence Minister Mr. Gojko Susak; and
ORDERS the Republic of Croatia and Mr. Susak to comply with the Subpoena Duces Tecum within thirty days of the date of this Decision.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Elizabeth Odio Benito Saad Saood Jan
Dated this eighteenth day of July 1997
At The Hague
[Seal of the Tribunal]