Order of a Chamber

Notion(s) Filing Case
Decision on Issuance of Subpoenas - 21.06.2004 HALILOVIĆ Sefer
(IT-01-48-AR73)

10. While a preparation for cross-examination is undeniably a part of the overall preparation for trial, it is not, in and of itself, a sufficient basis for an issuance of subpoena. […] In entertaining a request for a subpoena, a Trial Chamber is therefore entitled to take into account the fact that a witness whom a party seeks to subpoena is scheduled to testify during the trial, and to refuse the request where its sole rationale is to prepare for a more effective cross-examination. A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation […].

[…]

12. Where a witness is listed by one party as expected to testify on its behalf with respect to certain issues, it does not necessarily follow that this witness will have no information of value to the opposing party on other issues related to the case. The opposing party may have a legitimate expectation of interviewing such witness in order to obtain this information and thereby better prepare a case for its client. To deprive this expecting party of such ability would hand an unfair advantage to the opposing party, which would be able to block its opponent’s ability to interview crucial witnesses simply by placing them on its witness list.

13. Moreover, the party which placed the witness in question on its list of witnesses may then decide not to call the witness at all. While the other party, such as the Defence in this case, could subsequently petition the Trial Chamber for a subpoena to obtain information from the witness, that party would have lost valuable time in procuring this information and may therefore end up at an unfair disadvantage with respect to the preparation of its case.

14. […] [D]uring cross-examination, the party conducting cross-examination can elicit from the witness evidence exceeding the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness, provided that “the witness is able to give evidence relevant to the case for the cross-examining party.”[1] Given that during cross-examination the Defence can elicit from the Prosecution witness information which is relevant to its own case and goes beyond the scope of the Prosecution’s examination-in-chief, the Defence may have a legitimate need to interview this witness prior to trial in order to properly prepare its case.

[1] Rule 90(H)(i) of the Rules of Procedure and Evidence. 

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Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.11)

34.     The Appeals Chamber recalls that “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of criminal sanction”.[1] Thus, the prerequisites for subpoena issuance, embodied in the evidentiary threshold, safeguard against the potentially oppressive deployment of subpoenas generally. However, the proposed use of subpoenas against accused persons and appellants raises the additional consideration of possible self-incrimination relative to their status as individuals with ongoing proceedings before the Tribunal. The question therefore is whether an accused or appellant compelled by subpoena to testify in another case before the Tribunal is in effect exposed, in relation to his own case, to the possibility of compelled self-incrimination in the form of either: (i) inadvertent self-incrimination, whereby the accused or appellant unwittingly makes self-incriminating statements; or (ii) deliberate self-incrimination whereby a Chamber may compel self-incriminating statements from the accused or appellant pursuant to Rule 90(E) of the Rules.

[…]

36.     The Appeals Chamber notes that the chapeau to Article 21(4) of the Statute relates the rights listed thereunder to “the determination of any charge” against an accused. Thus, whereas Article 21(4)(g) of the Statute operates to prohibit the compulsion of an accused’s testimony in his own proceedings, it does not, sensu stricto, preclude the possibility of an accused being compelled to testify in other proceedings, which do not involve the determination of charges against him. Thus, Article 21(4)(g) of the Statute does not as such operate to prohibit the compulsion of Tolimir’s testimony in the Karadžić case.[2]

[…]

50.     […] international law and the laws of various national jurisdictions indicate the permissibility of distinguishing between an accused’s own case and the cases of other accused persons for the purposes of compelling an accused’s testimony. The Appeals Chamber emphasises that an accused or appellant may be compelled to testify in other cases before the Tribunal due to the fact that any self-incriminating information elicited in those proceedings cannot be directly or derivatively used against him in his own case. By contrast, an accused or appellant is not compellable in his own case, whether at the request of his co-accused or the Prosecution, as this may violate his right under Article 21(4)(g) of the Statute. […]

[1] Brđanin Appeal Decision [Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002], para. 31.

[2] The Appeals Chamber notes that the issue of whether an accused or appellant may be compelled to testify in other proceedings has not to date arisen before it for consideration. Certain trial chambers of the International Criminal Tribunal for Rwanda (“ICTR”) have declined the requests of accused to compel the testimony of other accused involved in different proceedings before that tribunal. See Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion to Postpone or Compel the Testimony of Augustin Ngirabatware, 3 May 2010, paras 7-8; Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion to Postpone or Compel the Testimony of Casimir Bizimungu, 7 April 2010, paras 6-7; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 3; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Motion for Summonses and Protection of Witnesses Called by the Defence, 17 February 1998, pp. 2-3 (collectively “ICTR trial decisions”). The Appeals Chamber recalls, however, that neither the Appeals Chamber nor the Trial Chamber is bound by the ICTR trial decisions. See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 114 (“decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other”). Furthermore and in any event, the Appeals Chamber does not consider the ICTR trial decisions to be persuasive in determination of the issues presently before it, particularly in view of the limited analysis presented therein. Cf. Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 24. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Judgement, 11 July 2013, para. 94.

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Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.11)

51.     Finally, the Appeals Chamber recalls that in certain limited instances testimonial privilege and immunity from subpoena, have been granted to specific classes of persons.[1] However, in such instances, the grant of testimonial privilege was justified either as a matter of law[2] or because the necessity of testimonial privilege for the protection of some critical interest was demonstrated.[3] However, in the instant case, Tolimir has failed to demonstrate that such immunity is necessary, particularly in view of the fact that Rule 90(E) of the Rules adequately safeguards him, through the immunity guaranteed under this Rule, from the adverse consequences of any potentially self-incriminating statements that he might make while testifying in the Karadžić case.

[1] See e.g., Brđanin Appeal Decision, paras 29-55.

[2] It has been held in particular that ICRC has, under customary international law, a confidentiality interest and a claim to non-disclosure in judicial proceedings of information relating to its work in possession of ICRC employees. Simić Decision [Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-PT, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999], paras 72-74.

[3] In the Brđanin Appeal Decision, the Appeals Chamber granted immunity from subpoena to war correspondents on the basis that compulsion of their testimony could compromise the public interest. Brđanin Appeal Decision, paras 29-55. The Appeals Chamber determined that subpoenaing war correspondents could significantly “impact upon their ability to obtain information and thus their ability to inform the public on issues of general concern”, and that the Appeals Chamber would “not unnecessarily hamper the work of professions that perform a public interest”. Brđanin Appeal Decision, para. 44.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

533. A review of the procedural history and the Trial Chamber’s conduct following the issuance of the Subpoena Decision indicates that the Trial Chamber did not require Gatsinzi to comply with its subpoena. There is nothing in Rule 54 of the Rules that makes it mandatory for the Trial Chamber to issue a subpoena. However, the Appeals Chamber considers that because it is a binding order, the decision to issue a subpoena triggers a responsibility on the Trial Chamber to ensure compliance therewith. As such, once the Trial Chamber decided that Gatsinzi’s testimony was necessary and of sufficient importance for the conduct of the trial to use coercive measures to assist Bagosora in obtaining it, it became incumbent upon the Trial Chamber to take every measure within its capacity to enforce its order in the event of non-compliance.[1]

534. In the Appeals Chamber’s view, Gatsinzi’s request for a video-link constituted a rejection of the explicit instruction of the Subpoena Decision that he personally appear before the Trial Chamber.[2] Contrary to the Trial Chamber’s position that “the conditions stipulated by the witness led to his non-appearance”,[3] the Appeals Chamber considers that it was the Trial Chamber’s failure to react to Gatsinzi’s conditions that led to his non-appearance. If the Trial Chamber reconsidered its Subpoena Decision, it should have done so explicitly, and with reasons.[4] It did not. Rather, the Trial Chamber repeatedly claimed that the subpoena remained in force, but took no steps to enforce it despite Bagosora’s repeated requests, which created confusion for Bagosora as to how to proceed.

535. In addition, the Trial Chamber’s indication in its 2 May 2007 Decision that Bagosora had the opportunity to make an application for a video-link but chose not to do so,[5] erroneously presumes that this was the only option open to Bagosora to secure Gatsinzi’s testimony. Bagosora chose to seek enforcement of the subpoena as it stood, initiation of contempt proceedings in case of continued non-compliance, and a stay of proceedings until the matter was resolved.[6] Instead, the Trial Chamber continuously failed to definitively answer Bagosora’s requests in any form, and then found against him at a late stage in the proceedings because he did not pursue a different course of action.

536. The Appeals Chamber finds nothing to justify the Trial Chamber’s failure to instruct the Registrar to inform Gatsinzi that his conditions were not acceptable. If the Trial Chamber was not ready to enforce the subpoena, it should have clarified its refusal to Bagosora earlier, called Gatsinzi as a Chamber witness, or proprio motu ordered the testimony to be heard by video-link despite Bagosora’s disagreement with such modalities. Bagosora’s rejection of the conditions imposed by Gatsinzi could not reasonably have been interpreted by the Trial Chamber as a waiver of his desire to have Gatsinzi testify altogether. Bagosora has never faltered in asserting the material importance of Gatsinzi’s testimony to his defence, and the Trial Chamber explicitly acknowledged this to be so.[7]

537. The Appeals Chamber is mindful of the Trial Chamber’s discretion under Rule 85 of the Rules to limit the presentation of evidence “in the interests of justice”. In this case, however, because the lapses in time between the 2 May 2007 and 23 May 2007 Decisions in relation to the 10 October 2006 Motion[[8]] were attributable to the Trial Chamber, the Appeals Chamber considers that the Trial Chamber abused its discretion when it considered the “late stage” and “the conclusion of evidentiary proceedings” as its sole basis for finding it “in the interests of justice to conclude this trial and to proceed with closing arguments” without hearing Gatsinzi’s testimony.[9]

Furthermore, the Appeals Chamber found that the Trial Chamber’s failure to enforce the subpoena against Gatsinzi amounted to a violation of Bagosora’s right to a fair trial, but that any prejudice he suffered as a result of such violation was remedied by the fact that Gatsinzi was ultimately heard on appeal. Though Gatsinzi’s testimony would preferably have been heard at trial, the Appeals Chamber determined that this would have done little in fact to assist Bagosora’s defence. Such determination was reached after considering all the evidence on the record, which showed that crucial elements to which Gatsinzi was expected to testify had already been introduced into evidence by other means, thereby affording Bagosora the opportunity to address them at trial. More importantly, however, the Appeals Chamber noted that during his live testimony on appeal, Gatsinzi did not testify in Bagosora’s favour, and that his testimony suffered a number of deficiencies in terms of credibility and reliability. See paras. 543-546.

[1] Cf. Tadić Appeal Judgement, para. 52.

[2] See The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Request for a Subpoena, 11ºSeptember 2006 (“Subpoena Decision”), para. 8.

[3] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Bagosora Motion for Additional Time for Closing Brief and on Related Matters, 2 May 2007 (“2 May 2007 Decision”), para. 7; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Bagosora Request for Ruling or Certification Concerning Subpoena Issued to General Marcel Gatsinzi, 23 May 2007 (“23 May 2007 Decision”), para. 7.

[4] The Appeals Chamber notes that Kabiligi, Nsengiyumva, and Ntabakuze were opposed to having Gatsinzi come testify, and accordingly moved the Trial Chamber to reconsider its Subpoena Decision. See The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Joint Request for Reconsideration of the Trial Chamber’s “Decision on Request for a Subpoena”, 15 September 2006. A review of the trial record does not reveal a decision disposing of this particular request.

[5] 2 May 2007 Decision, para. 7. The Appeals Chamber notes that, on 8 December 2006, the Trial Chamber alluded to the fact that no request for video-link had been made but did not clarify that it was expecting the Defence to do so. See T. 8 December 2006 p. 4 (closed session).

[6] See supra, paras. 525-528.

[7] 23 May 2007 Decision, para. 11.

[8] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Mémoire de la Défense de Bagosora en réponse à The Registrar’s Submissions Regarding the Trial Chamber’s Decision on Request for a Subpoena of 11 September 2006 déposées le 5 octobre 2006, 10 October 2006 (“10 October 2006 Motion”).

[9] 23 May 2007 Decision, para. 11.

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Notion(s) Filing Case
Decision on Subpoena - 22.05.2008 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR73.7)

The Appeals Chamber stated that:

10. Generally, an order issued by a Trial Chamber is a command, direction or instruction given to the parties in relation to a subsidiary, collateral or preliminary matter which arises from the proceedings before it.[1] An order must be clear, explicit and unambiguous. It may be issued orally or in writing. […]

In the present case, the Appeals Chamber considered the exchange between the Presiding Judge and the Accused’s counsel at a status conference and stated that:

10. […] In the view of the Appeals Chamber, this exchange does not constitute an order, since the Presiding Judge did not clearly direct or instruct the Appellant’s counsel to do anything. Rather than an order, this exchange suggests an enquiry as to when counsel could take certain action, with the Presiding Judge then noting the answer. From this exchange, counsel would not necessarily understand that the Trial Chamber directed or instructed him to file a request for a subpoena of a certain witness by the day discussed.

[1] Black’s Law Dictionary, Eighth Edition, pp. 1129-1130, referring to Henry Campbell Black, A Treatise on the Law of Judgments S1 at 5 (2d ed. 1902).

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Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

43. The Appellant submits that the Appeals Chamber should order the Prosecution to submit a signed, sworn affidavit to certify that it is aware of its continuing obligations under sub-Rule 66 (A) (ii) and Rule 68 and has produced to the Appellant all material requested […].

45. This type of order is one that should only be made by a Chamber in very rare instances.  The Prosecution is expected to fulfil its duties in good faith.  This has been acknowledged in the document known as the Standards of Professional Conduct for Prosecution Counsel, issued by the Chief Prosecutor on 14 September 1999.  Only where the Defence can satisfy a Chamber that the Prosecution has failed to discharge its obligations should an order of the type sought be contemplated. 

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Rule 68
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Rule 68
Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

41. […] It is well known that customary international law protects the internal organization of each sovereign State: it leaves it to each sovereign State to determine its internal structure and in particular to designate the individuals acting as State agents or organs. Each sovereign State has the right to issue instructions to its organs, both those operating at the internal level and those operating in the field of international relations, and also to provide for sanctions or other remedies in case of non-compliance with those instructions. The corollary of this exclusive power is that each State is entitled to claim that acts or transactions performed by one of its organs in its official capacity be attributed to the State, so that the individual organ may not be held accountable for those acts or transactions. […]

[…]

43. The Appeals Chamber therefore finds that, both under general international law and the Statute itself, Judges or Trial Chambers cannot address binding orders to State officials. […] It follows that if a Judge or a Chamber intends to order the production of documents, the seizure of evidence, the arrest of suspects etc., being acts involving action by a State, its organs or officials, they must turn to the relevant State.

See also para. 45.

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ICTY Statute Article 29 ICTY Rule Rule 54
Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

26. […] [I]t is self-evident that the International Tribunal, in order to bring to trial persons living under the jurisdiction of sovereign States, not being endowed with enforcement agents of its own, must rely upon the cooperation of States. The International Tribunal must turn to States if it is effectively to investigate crimes, collect evidence, summon witnesses and have indictees arrested and surrendered to the International Tribunal. The drafters of the Statute realistically took account of this in imposing upon all States the obligation to lend cooperation and judicial assistance to the International Tribunal. This obligation is laid down in Article 29[1] and restated in paragraph 4 of Security Council resolution 827 (1993)[2]. Its binding force derives from the provisions of Chapter VII and Article 25 of the United Nations Charter and from the Security Council resolution adopted pursuant to those provisions. The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be “ordered” either by other States or by international bodies). Furthermore, the obligation set out - in the clearest of terms - in Article 29 is an obligation which is incumbent on every Member State of the United Nations vis-à-vis all other Member States. The Security Council, the body entrusted with primary responsibility for the maintenance of international peace and security, has solemnly enjoined all Member States to comply with orders and requests of the International Tribunal. The nature and content of this obligation, as well as the source from which it originates, make it clear that Article 29 does not create bilateral relations. Article 29 imposes an obligation on Member States towards all other Members or, in other words, an “obligation erga omnes partes”[3]. By the same token, Article 29 posits a community interest in its observance. In other words, every Member State of the United Nations has a legal interest in the fulfilment of the obligation laid down in Article 29[4] (on the manner in which this legal interest can be exercised, see below, paragraph 36).

As for States which are not Members of the United Nations, in accordance with the general principle embodied in Article 35 of the Vienna Convention on the Law of Treaties[5], they may undertake to comply with the obligation laid down in Article 29 by expressly accepting the obligation in writing. […]

See also paras 27-29.

[1]           “1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

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:

(a) the identification and location of persons;

(b) the taking of testimony and the production of evidence;

(c) the service of documents;

(d) the arrest or detention of persons;

(e) the surrender or the transfer of the accused to the International Tribunal.”

[2]           “The Security Council, . . . Acting under Chapter VII of the Charter of the United Nations,

4. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all 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”.

[3]           As is well known, in the Barcelona Traction, Power & Light Co. case, the International Court of Justice mentioned obligations of States “towards the international community as a whole” and defined them as obligations erga omnes (I.C.J. Reports 1970, p. 33, para. 33). The International Law Commission has rightly made a distinction between such obligations and those erga omnes partes (Yearbook of the International Law Commission, 1992, vol. II, Part Two, p. 39, para. 269). This distinction was first advocated by the Special Rapporteur, G. Arangio-Ruiz, in his Third Report on State Responsibility (see ibid., 1991, vol. II, Part One, p. 35, para. 121; see also his Fourth Report, ibid, 1992, vol. Two, Part One, p. 34, para. 92).

[4]           It is worth mentioning that in the Lockerbie case, the United States contended before the International Court of Justice that “irrespective of the right claimed by Libya under the Montreal Convention, Libya has a Charter-based duty to accept and carry out the decisions in the Security Council resolution [784 (1992)], and other States have a Charter-based duty to seek Libya’s compliance” (I.C.J. Reports 1992, p. 126, para. 40). The Court did not however take any stand on this contention, in its Order of 14 April 1992 (ibid.). The fact that the obligation is incumbent on all States while the correlative “legal interest” is only granted to Member States of the United Nations should not be surprising. Only the latter category encompasses the “injured States” entitled to claim the cessation of any breach of Article 29 or to promote the taking of remedial measures. See on this matter Article 40 of the Draft Articles on State Responsibility adopted on first reading by the International Law Commission (former art. 5 of Part Two). It provides as follows in para. 2 (c): “[injured State means] if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the State or States which, in accordance with the constituent instrument of the international organisation concerned, are entitled to the benefit of that right”, in International Law Commission, Report to the Forty-eighth Session of the General Assembly, 1996, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 10 (A/51/10), (“I.L.C. Draft Articles”).

[5]           This Article provides that:

“An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”

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Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

21. […] [I]t is consonant with the spirit of the Statute and the Rules to place a narrow interpretation on the term [“subpoena”] and construe it as referring only and exclusively to binding orders addressed by the International Tribunal, under threat of penalty, to individuals acting in their private capacity. The same holds true for the French term “assignation”, which must be taken exclusively to refer to orders directed to such individuals and involving a penalty for non-compliance.

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Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

25. The Appeals Chamber holds the view that the term “subpoena” (in the sense of injunction accompanied by threat of penalty) cannot be applied or addressed to States. This finding rests on two grounds.

First of all, the International Tribunal does not possess any power to take enforcement measures against States. Had the drafters of the Statute intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions[1]. Under current international law States can only be the subject of countermeasures taken by other States or of sanctions visited upon them by the organized international community, i.e., the United Nations or other intergovernmental organizations.

Secondly, both the Trial Chamber[] and the Prosecutor[] have stressed that, with regard to States, the ‘penalty’ attached to a subpoena would not be penal in nature. Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.

With regard to States, the Appeals Chamber therefore holds that the term “subpoena” is not applicable and that only binding “orders” or “requests” can be addressed to them.

[1]           Consonant with the case-law of the International Court of Justice, the Appeals Chamber prefers to speak of “inherent powers” with regard to those functions of the International Tribunal which are judicial in nature and not expressly provided for in the Statute, rather than to “implied powers”. The “implied powers” doctrine has normally been applied in the case-law of the World Court with a view to expanding the competencies of political organs of international organisations. See, e.g., P.C.I.J. Reports, Competence of the International Labour Organization (Advisory Opinion of 23 July 1926), Ser. B, no. 13, p. 18; P.C.I.J. Reports, Jurisdiction of the European Commission of the Danube (Advisory Opinion of 8 Dec. 1927), Ser. B, no. 14, pp. 25-37; Reparation for Injuries suffered in the Service of the United Nations, I.C.J. Reports 1949, pp. 182-83; International Status of South-West Africa, I.C.J. Reports 1950, p. 136; Effect of Awards of Compensation made by the United Nations Administrative Tribunal, I.C.J. Reports 1954, pp. 56-58; Certain Expenses of the United Nations, I.C.J. Reports 1962, pp. 167-68; Legal Consequences for States of the Continued Presence of South Africa in Namibia, I. C. J. Reports 1971, pp. 47-49, 52.

As is well known, reference to the Court's “inherent powers” was made by the International Court of Justice in the Northern Cameroons case (I.C.J. Reports 1963, p. 29) and in the Nuclear Tests case. In the latter case the Court stated that it “possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute. . . . Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded” (Nuclear Tests case, I.C.J. Reports 1974, pp. 259-60, para. 23).

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Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

38. The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity. Such officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called “functional immunity”. […]

See also para. 41.

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Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
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58. The Appeals Chamber holds the view that, normally, the International Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance by an individual with a subpoena or order issued by a Judge or a Trial Chamber. Legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. This holds true for those cases where, from the outset, the International Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or the defence, on the assumption that the authorities of the State or Entity would either prevent the International Tribunal from fulfilling its mission (see above, paragraph 55) or be unable to compel a State official to comply with an order issued under Article 29 (see above, the case mentioned in paragraph 51). […]

59. The remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power […]) to the specific contempt power provided for in Rule 77. […] [I]n absentia proceedings may be exceptionally warranted in cases involving contempt of the International Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice. These cases fall within the ancillary or incidental jurisdiction of the International Tribunal.

If such in absentia proceedings were to be instituted, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. The Appeals Chamber holds the view that, in addition, other guarantees provided for in the context of the European Convention on Human Rights should also be respected[1].

[1]           In the Colozza case (judgement of 12 Feb. 1985), the European Court on Human Rights held that trials by default, which are not prohibited by Art. 6, para. 1, of the European Convention of Human Rights (whereby every person charged with a criminal offence is entitled to take part in the hearing) must however fulfil some basic conditions required by the notion of “right to a fair trial”. It follows, among other things, that any waiver of the right to be present “must be established in an unequivocal manner” (Publications of the European Court of Human Rights, Ser. A, vol. 89, p. 14, para. 28); serious attempts must be made to trace the indictee and notify him of the opening of criminal proceedings (ibid); in addition, once the indictee becomes aware of the criminal proceedings against him, he “should ... be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge”(ibid, p. 15, para. 29).

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Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

48. The spirit and purpose of the Statute, as well as the aforementioned provisions, confer on the International Tribunal an incidental or ancillary jurisdiction over individuals other than those whom the International Tribunal may prosecute and try. These are individuals who may be of assistance in the task of dispensing criminal justice entrusted to the International Tribunal. Furthermore, as stated above, Article 29 also imposes upon States an obligation to take action required by the International Tribunal vis-à-vis individuals subject to their jurisdiction.

See also para. 47; paras 50-51 on the meaning of “individuals acting in their private capacity”; and paras 55-56 on the modalities of how to address these individuals.

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ICTY Rule Rule 54
Notion(s) Filing Case
Decision on Interlocutory Appeal - 11.12.2002 BRĐANIN & TALIĆ
(IT-99-36-AR73.9)

31. [...] Under Rule 54 of the Rules, a Trial Chamber may, at the request of either party or on its own initiative, issue a subpoena when it finds that doing so is “necessary for the purposes of an investigation or for the preparation or conduct of the trial.”  The discretion of the Trial Chambers, however, is not unfettered.  They must take into account a number of other considerations before issuing a subpoena.  Subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.

32. In determining whether to issue a subpoena, a Trial Chamber has first of all to take into account the admissibility and potential value of the evidence sought to be obtained. Under Rule 89(C) of the Rules, a Trial Chamber “may admit any relevant evidence which it deems to have probative value,” and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”  Secondly, the Trial Chamber may need to consider other factors such as testimonial privileges.  For instance, Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”  Similarly, in the Simić case, the Trial Chamber made it clear that the ICRC has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.[1]

[...]

46. The Appeals Chamber considers that in order to decide whether to compel a war correspondent to testify before the International Tribunal, a Trial Chamber must conduct a balancing exercise between the differing interests involved in the case. On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.

[...]

50. [...] [T]he Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied.  First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case.  Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.

[1] Supra n.11 [sic.], in particular paras 73-74 and disposition. 

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ICTR Rule Rule 54;
Rule 89(C);
Rule 97
ICTY Rule Rule 54;
Rule 89(C);
Rule 89(D);
Rule 97
Notion(s) Filing Case
Decision on Preserving and Providing Evidence - 22.04.1999 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

[A] Legal Officer and the then President of the Tribunal […] cannot be subpoenaed to testify as witnesses on matters relating to their official duties or functions because their work is integral to the operation of the Tribunal which must be protected by confidentiality. […]

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Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

10.     Rule 54 permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be “necessary […] for the preparation or conduct of the trial”.  Such a power clearly includes the possibility of a subpoena being issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed by the defence where that attendance is necessary for the preparation or conduct of the trial.  By analogy with applications for access to confidential material produced in other cases (where a legitimate forensic purpose for that access must be shown), an order or a subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown.  An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial.[1]

See also paragraphs 12-13.

[1]    cf Prosecutor v Hadžihasanović et al, Decision on Motion by Mario Čerkez for Access to Confidential Supporting Material, 10 Oct 2001, par 10;  Prosecutor v Kordić & Čerkez, Order on Paško Ljubičić’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Čerkez Case, 19 July 2002, p 4;  Prosecutor v Blaškić, Decision on Appellant’s Dario Kordić and Mario Čerkez Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Trial Pleadings and Hearing Transcripts filed in the Prosecutor v Blaškić, 16 May 2002, par 14;  Prosecutor v Kvočka et al, Decision on Momčilo Gruban’s Motion for Access to Material, 13 Jan 2003, par 5;  Prosecutor v Kordić & Čerkez, Decision on Motion by Hadžihasanović, Alagić, and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić & Čerkez Case, 23 Jan 3003, p 3.

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ICTR Rule Rule 54 ICTY Rule Rule 54