Tribunal Criminal Tribunal for the Former Yugoslavia

Page 203

1 Thursday, 17th April 1997

2 (9.45 am)

3 JUDGE McDONALD: Prosecutor, you completed your submission,

4 did you not?


6 JUDGE McDONALD: Now we hear from Mr Hayman.

7 MR HAYMAN: Thank you, your Honour. The defendant, General

8 Blaskic, has only one position with respect to the

9 subject of this Tribunal.

10 JUDGE McDONALD: Excuse me one minute. I do not see the

11 transcript. (Pause) Mr Hayman, you may proceed.

12 Presentation by MR HAYMAN

13 MR HAYMAN: Thank you, your Honour. The accused has only

14 one position with respect to the subject of whether this

15 Tribunal has the power to issue subpoenas to nation

16 states and that is as follows. Whatever powers and

17 processes to which the prosecution has access in that

18 regard, the accused must have equal access. I believe

19 there is no disagreement on this issue between the

20 Prosecutor and the defence. Indeed, it is hard to

21 imagine how anyone could disagree in light of the

22 requirements of Article 21 as well as broader notions of

23 international law, fairness and protection of an

24 accused's rights. That being our position, the court --

25 the Tribunal may be wondering: why did the defence wish

Page 204

1 to participate in these proceedings from the earliest

2 appointed time? In fact, why would we want to be here

3 at all, given the length of this hearing?

4 JUDGE McDONALD: Excuse me, Mr Hayman. When you say

5 "earliest point in time", you submitted a subpoena to

6 Judge Jorda on what date?

7 MR HAYMAN: We filed a request --

8 JUDGE McDONALD: I know it was after I had signed the

9 subpoenas, addressed to Croatia and Bosnia-Herzegovina.

10 MR HAYMAN: So it was much later, your Honour. It was on

11 February 28th. When I say "earliest point in time", I am

12 referring to the application of the Prosecutor for

13 issuance of a subpoena duces tecum on January 10th,

14 1997. That is an application that was filed ex parte

15 with no notice -- first of all, no service on the

16 defence and no notice of an ex parte filing; in other

17 words, no notice of the bare fact that ex parte contact

18 with the Tribunal occurred, which I would submit is

19 normal and appropriate, so at least the defence can

20 raise the issue: is it something to which we should

21 have notice and should have a right to participate?

22 So when I say "from the earliest point in time", I

23 am referring to January 10th 1997. If not then, then

24 certainly at the moment at which the proceedings became

25 public. My understanding is as of January 10, 1997 the

Page 205

1 proceedings were in camera and they were closed

2 proceedings. I do not know that for a fact. I have not

3 been given transcripts of those proceedings by the

4 Registrar.

5 JUDGE McDONALD: The subpoena was submitted to me as the

6 confirming judge and I have no relationship to the

7 matter, the trial; that is being handled by Judge Jorda.

8 You submitted your subpoena to Judge Jorda. Judge Jorda

9 then transferred the matter to me. I do not have the

10 record, but it was at a later date. Finding that he did

11 not wish to handle the subpoena for you, because it

12 would require ex parte involvement with you, considering

13 that the prosecution should not be involved in those

14 deliberations. Therefore he transferred it to me, but

15 the initial subpoena that I signed, I signed because

16 I confirmed the indictment.

17 MR HAYMAN: With all due respect, your Honour, I understand

18 that view. Our position, though, is the initial subpoena

19 matter was not referred to your Honour by Trial Chamber

20 I.

21 JUDGE McDONALD: What initial subpoena?

22 MR HAYMAN: The application from the Prosecutor.

23 JUDGE McDONALD: Of course not, because I was the

24 confirming judge.

25 MR HAYMAN: Nor do we believe there is any express

Page 206

1 provision in the Rules or the Tribunal Statute that

2 provides on the eve of trial for the Prosecutor to go to

3 any Trial Chamber other than the Trial Chamber. I do not

4 know to which Trial Chamber the Prosecutor should have

5 gone. I know the Prosecutor did not consult with Trial

6 Chamber I before coming to your Honour.

7 JUDGE McDONALD: How have you been prejudiced?

8 MR HAYMAN: We believe we have been prejudiced because we

9 have been excluded from the proceedings until todays

10 date.

11 JUDGE McDONALD: How have you been prejudiced?

12 MR HAYMAN: We have been prejudiced, your Honour, because

13 the Prosecution has obtained the issuance of two

14 subpoenas to two nation states. They have obtained

15 documents pursuant to at least one of those subpoenas.

16 They have had unequal access to the subpoena power. The

17 defendant has not been able to obtain issuance of any

18 subpoenas on his behalf.

19 JUDGE McDONALD: Because you did not submit one until a

20 certain point in time and now that request for the

21 issuance of a subpoena has been suspended pending the

22 resolution of this issue.

23 MR HAYMAN: Had the proceedings not been in secret, your

24 Honour, we would have filed our application on January

25 17th 1997 and would have requested one subpoena issued

Page 207

1 from the Tribunal, seeking both the inculpatory

2 documents that the Prosecutor apparently seeks as well

3 as the exculpatory documents that the Defence seeks. We

4 think that would have been a far better, far more

5 even-handed procedure that would have protected the

6 accused's rights under Article 21.

7 JUDGE McDONALD: What rights would he have?

8 MR HAYMAN: He has rights to equal access to whatever

9 subpoena powers this Tribunal has.

10 JUDGE McDONALD: Exactly. You have submitted the subpoena

11 now to Judge Jan. It has been received to this Trial

12 Chamber and you have been notified that Judge Jan will

13 meet with you ex parte, that is without the presence of

14 the Prosecutor, to consider that subpoena. That will

15 happen as soon as we conclude these hearings.

16 MR HAYMAN: Your Honour, on the eve of trial there is

17 limited time. There is limited time to pursue leads, to

18 conduct follow-up investigation. I do not know what

19 documents the prosecution has already obtained pursuant

20 to the subpoenas issued by your Honour. I do know that

21 we have obtained none of the exculpatory documents we

22 seek. I do not know when or if we will ever get them or

23 if we do get them, there will be sufficient time to

24 utilise them properly.

25 JUDGE McDONALD: The Prosecutor will have no access to your

Page 208

1 request for a subpoena, nor will the Prosecutor be

2 present when that subpoena is considered.

3 MR HAYMAN: I served my request on the Prosecutor, your

4 Honour. I did not seek ex parte contact with the

5 Tribunal.

6 JUDGE McDONALD: If you wish to serve it on the Prosecutor,

7 you may, but it will be considered by Judge Jan when we

8 finish these proceedings without the presence of a

9 Prosecutor.

10 MR HAYMAN: I do not raise that issue. I believe the

11 Prosecutor has sought for tactical reasons to obtain its

12 subpoenas from your Honour in secret, without notice

13 even of an ex parte contact to the defence, and they

14 have thereby gained a tactical advantage in violation of

15 Article 21.

16 JUDGE McDONALD: Then you need to say that, but take a look

17 at the rule that allowed the Prosecutor to come to me,

18 and that is rule ...

19 MR HAYMAN: 54, your Honour.

20 JUDGE McDONALD: Actually it is Article 19 that I am

21 referring to, I believe. Yes. Article 19 provides:

22 "Upon confirmation of an indictment the judge may,

23 at the request of the Prosecutor, issue such orders and

24 warrants for the arrest, detention, surrender or

25 transfer of persons or any other orders as may be

Page 209

1 required for the conduct of the trial."

2 I was proceeding under Article 19 because I am a

3 confirming judge. Believe me, I do not look for

4 additional work. I have enough to do. The subpoena came

5 to me pursuant to Article 19.2.

6 MR HAYMAN: I can say this, your Honour. Trial Chamber 1

7 expressed some amount of surprise and enquired of

8 Mr Harmon why he came to this Trial Chamber on the eve

9 of a trial that is before trial Chamber 1. I think we

10 would all agree at some point in time the baton passes

11 to the Trial Chamber that will conduct the trial.

12 JUDGE McDONALD: And that Trial Chamber, Judge Jorda's

13 Trial Chamber, Trial Chamber 1, referred the matter to

14 me. I attempted to refer it to that Trial Chamber, as

15 you know, at that hearing that was conducted. It was his

16 decision that he did not want to handle it. He wanted me

17 to handle it. Then when you filed your subpoena,

18 I attempted to refer that to him, because I considered

19 that he should look at it to see whether or not there is

20 at least a facial claim of relevance and materiality to

21 the issues that will be raised at trial. I am not in the

22 best position. He again made the determination that it

23 should be handled by this Trial Chamber and it will be

24 handled by Judge Jan ex parte without the presence of

25 the Prosecutor when we conclude these hearings.

Page 210

1 MR HAYMAN: I understand that, your Honour. I understand

2 based on the hearing before Trial Chamber 1 it refers my

3 application for a subpoena to this Trial Chamber because

4 of the fear of an inconsistent ruling had it retained

5 that matter, because this Trial Chamber had already

6 ruled on the Prosecutor's application.

7 JUDGE McDONALD: That is one of the considerations that was

8 in the Trial Chamber's determination -- I was not

9 present at the hearing -- but the other reason was once

10 again I had handled it pursuant to Article 19.2. If you

11 are suggesting that there was any impropriety, then you

12 need to raise that with Judge Jorda.

13 MR HAYMAN: I am suggesting, your Honour, that the

14 Prosecution sought to proceed ex parte and before this

15 Trial Chamber in the manner that they did in order to

16 obtain a tactical advantage which they have gained as a

17 result of proceeding in that matter. I am not faulting

18 this Trial Chamber.

19 JUDGE McDONALD: The tactical advantage they gained, if any,

20 was that they submitted a subpoena before you did, and,

21 of course, it may not have occurred to you that the

22 Tribunal would be issuing subpoenas, but when you found

23 that a subpoena had been issued and rightfully so, you

24 are now attempting to proceed the same way and we

25 welcome that.

Page 211

1 MR HAYMAN: I discussed this question with the Office of

2 the Prosecutor last fall, your Honour, about whether the

3 Tribunal had subpoena powers. I was told at that time

4 they did not know. This was in casual conversation. I

5 do not think they should be held to those

6 representations but at the first moment we learned that

7 the Prosecutor believed there was such a power, we began

8 preparing our own application. I am simply saying for a

9 period of roughly 45 or 60 days they conducted

10 themselves in secret to gain a timing and a tactical

11 advantage over the defence, which they have gained.

12 JUDGE McDONALD: And you understand that the whole

13 confirmation process envisioned by Article 19.2 and rule

14 47 of our rules is an ex parte proceeding, that is the

15 Prosecutor comes to the confirming judge for

16 confirmation. The judge looks at the materials and then

17 makes a determination as to whether a prima facie case

18 has been established. The continuing relationship with

19 the confirming judge flows from that same procedure.

20 MR HAYMAN: You understand that the confirmation of the

21 indictment process is ex parte, your Honour. I do take

22 issue with continuing ex parte contacts in the nature of

23 trial preparation such as clearly these subpoenas are in

24 the nature of trial preparation.

25 JUDGE McDONALD: I am not going to argue back and forth

Page 212

1 with you. You will have your opportunity either this

2 evening or tomorrow to meet with Judge Jan ex parte in

3 private to discuss the subpoena that you have

4 submitted. The reason is the subpoena that you

5 submitted to Trial Chamber 1 that was included in your

6 motion for a request for a subpoena is very different

7 from the one that you then submitted to this Chamber.

8 That matter needs to be resolved. You have asked for,

9 I think, three or four different requests, and in the

10 motion that you filed you only supported your claim for

11 the documents with respect to -- I think it was item

12 number 10. So there are some matters that need to be

13 resolved ex parte in camera with the judge.

14 MR HAYMAN: I am not seeking to take up the merits of that

15 application, your Honour. I am simply --

16 JUDGE JAN: There is one thing. I do not understand your

17 allegation that the prosecution has gained tactical

18 advantage. Any document that the prosecution obtains

19 consequent upon the subpoena issued and that the

20 prosecution wants used in evidence will be given -- a

21 copy of that will be provided to you.

22 MR HAYMAN: That is not correct, your Honour. We have not

23 --

24 JUDGE JAN: I think under the rules all documents, all

25 evidence that is to be adduced against the accused has

Page 213

1 to be given to you.

2 MR HAYMAN: We have not triggered the reciprocal discovery

3 rules in our case. We have not received all such

4 documents.

5 JUDGE JAN: I am not talking about the discovery rules. If

6 you think you do not have sufficient time and the

7 subpoena was submitted late, you can satisfy the Trial

8 Chamber to grant you time. I do not understand what

9 tactical advantage the prosecution can take. You can

10 always satisfy the Chamber that: "The subpoena was

11 submitted very late. We have not been able to prepare

12 ourselves". I am sure if your request is reasonable

13 according to the Chamber, it will grant you time. I do

14 not know what technical advantage you are talking about.

15 MR HAYMAN: I would like to address both of your comments,

16 your Honour. First, with respect to Rule 66, we had not

17 triggered the reciprocal discovery provisions of Rule

18 66. So we are not receiving and have not received

19 copies of all documents that the prosecution intends to

20 use.

21 JUDGE McDONALD: That is your choice.

22 MR HAYMAN: That is our choice but nonetheless --

23 JUDGE McDONALD: If you trigger it, then there is a

24 reciprocal obligation on your part. That may be a

25 tactical -- but that is your decision.

Page 214

1 MR HAYMAN: We are entitled to take that posture under the

2 rules and I believe should not be penalised for doing

3 so. It should not justify other conduct which may be

4 designed to obtain a tactical advantage by the

5 Prosecution.

6 Now the second issue was we can simply see the

7 delay. I submit the prosecution knows, since last fall,

8 we have consistently sought the earliest possible date

9 for trial in this matter. Our client has been in

10 custody for over a year. He has not had fresh air since

11 January of this year. We have to seek the first

12 possible trial date, and the Prosecution knows it is not

13 an option for us to seek a two or three-month delay to

14 further investigate documents that we may receive on the

15 eve of trial.

16 JUDGE JAN: But is the proper preparation of defence not

17 your first priority?

18 MR HAYMAN: For any defence counsel, your Honour, there is

19 a tension between extending your client's period of

20 incarceration and preparing for trial, and we face very

21 hard choices in that regard, but in all candour, we must

22 press for the earliest trial date. Our client -- for

23 our client to maintain his physical and mental

24 condition, when he has not had fresh air since January

25 of this year, is a very, very important consideration

Page 215

1 for us.

2 JUDGE McDONALD: Go ahead, Mr Hayman, but now you can see

3 why I very much wanted this matter to be handled by the

4 other Trial Chamber, because we really do not want to

5 involve ourselves in the issues that relate to trial,

6 but I understand. Your client, you say, has been

7 prejudiced because of the prosecution's tactical

8 decision to seek a subpoena. Go ahead.

9 MR HAYMAN: In fact, Trial Chamber 1 rebuffed the

10 Prosecutor's earlier attempt in our case to proceed ex

11 parte with respect to certain matters pertaining to

12 witness anonymity. They do not acknowledge that that

13 had any influence over their decision to come to this

14 Trial Chamber, but nonetheless those are facts.

15 So we, therefore, do believe that there is

16 certainly a potential, if not an actual, violation of

17 Article 21 with respect to unequal access of subpoenas

18 and I wish to state that because of the earlier

19 commentary concerning our desires to participate.

20 I would like to mention one other matter, and that is in

21 the brief of Bosnia-Herzegovina, dated 25th March 1997,

22 there is reference at the bottom of the first page:

23 "A Memorandum of Understanding regarding

24 cooperation between the Government of Bosnia-Herzegovina

25 and the Prosecutor of this Tribunal".

Page 216

1 Then a quote is made from that Memorandum of

2 Understanding. The defence has a concern in the case of

3 General Blaskic that the parties do have dramatically

4 unequal access to evidence, and that stems, of course,

5 from the fact that, unlike any other international

6 tribunal in history, this Tribunal is not affiliated

7 with an occupying power that occupies the terrain of the

8 conflict, nor does it have an army that answers to

9 itself to collect evidence or otherwise take action.

10 Therefore, the prosecution is working very closely

11 with the Government of Bosnia-Herzegovina to collect

12 evidence. I am not suggesting that is inappropriate,

13 but they have an agreement, a Memorandum of

14 Understanding, that governs the collection of evidence.

15 We have asked the Prosecutor for it. We have been

16 denied access to that Memorandum, and that exacerbates

17 the defence's concerns that Article 21 may be being

18 violated in an on-going matter. They have a secret

19 agreement, at least secret from the defence, as to the

20 manner in which they will collect and gain access to

21 evidence and witnesses and bring them here before the

22 Tribunal, because this document has been referenced in a

23 brief --


25 MR HAYMAN: Because this document has been referenced in a

Page 217

1 brief, we would ask that it be filed with the court and

2 served upon us. Thank you.

3 JUDGE McDONALD: Thank you, Mr Hayman. Does the Prosecutor

4 have anything to say in this regard, as Judge Jan and

5 Judge Odio Benito have told me this is a matter that

6 really should be considered by the other Trial Chamber?

7 I am not involved in that trial. If you wish to

8 respond, you may.

9 JUSTICE ARBOUR: Thank you, your Honour. I simply wish to

10 state that this is not within the ambit of the issues

11 that are before this Chamber this morning as to which

12 Chamber should ultimately be seized of these kinds of

13 issues. I have no comment at this stage, but it is

14 clearly not within the ambit of the issue that we are to

15 be addressed by this Chamber this morning, and I would

16 certainly submit we should stay away from trying to

17 resolve these issues at this stage.

18 JUDGE McDONALD: The defence subpoena will be handled by

19 Judge Jan ex parte as soon as we conclude these

20 proceedings.

21 Now, we will hear from Mr Rivkin or is it the

22 Ambassador? Mr Simonovic?

23 Presentation by MR SIMONOVIC

24 MR SIMONOVIC: When you asked me yesterday, your Honour,

25 whether I am an attorney or not, I said I was not, which

Page 218

1 correctly reflects my position. So I shall be only

2 giving political and legal statement about the position

3 of the Government of Croatia concerning admissibility of

4 subpoena, and afterwards I will give the floor to

5 special legal counsellors of the Government of Croatia.

6 We will be having Miss Kate Baragona speaking and Mr Ivo

7 Josipovic, our expert on criminal procedural law.

8 Concerning the statement of the Republic of

9 Croatia, it tries to emphasise three main points related

10 to subpoena duces tecum. First, that subpoena duces

11 tecum is not founded either on statute nor on

12 international law; secondly, that it is unnecessary; and

13 thirdly, that it is harmful. Presenting this statement,

14 I shall be rather closely bound by my instructions, but

15 I would be more than happy if there would be any

16 questions on which I could elaborate the statement,

17 because, apart from being Ambassador, I am also a law

18 professor.

19 So if you allow me, your Honour, I would like to

20 proceed with the statement.

21 The Republic of Croatia was one of the States that

22 sought the establishment of this Tribunal and it will

23 continue to support it. Furthermore, Croatia considers

24 that it has both a moral and a legal obligation to

25 cooperate with the Tribunal. We are appreciative of the

Page 219

1 resources that the international community has committed

2 to the Tribunal so far, and we welcome the efforts of

3 the Tribunal and its officials and support the Tribunal

4 in its noble task. We will insist, however, that the

5 Tribunal must function in a fair and equitable way, and

6 especially that justice is dispensed by it within the

7 framework set by existing international law and

8 practice.

9 The fact that Croatia appears before this Tribunal

10 today expressing its objection to a particular action

11 taken by the Prosecutor does not reflect Croatia's

12 opposition to the Tribunal. On the contrary, our

13 appearance has the sole purpose of assisting the

14 Tribunal to find the way to adopt the right decision in

15 a very sensitive matter, a decision which will

16 simultaneously enable the Tribunal to carry out its

17 mandate and facilitate the development of international

18 criminal law.

19 Now, your Honour, let me pass to our arguments

20 against the subpoena, the first being that the subpoena

21 is not founded neither in Statute nor in international

22 law. The Tribunal and its enabling Statute were

23 established by Resolutions of the United Nations

24 Security Council. The function of the Statute is to

25 define the boundaries of the jurisdiction of the

Page 220

1 Tribunal. It is only within these bounds that the

2 Tribunal is able to create its Rules of Procedure and

3 Evidence. These bounds, as we shall demonstrate

4 convincingly, should not and cannot include the

5 subpoena.

6 The Statute enabled the court to adopt the Rules

7 of Procedure and Evidence, the purpose of which is only

8 to address technical questions of the administration of

9 the Tribunal. In this regard I recall the words of the

10 President of the Court, the honourable Judge Cassese,

11 who in his address to the United Nations General

12 Assembly on 19th November 1996 stated:

13 "No rule of procedure, nor any amendment of such

14 rules, may infringe the principles laid down in

15 Statute."

16 In considering the competence of the Tribunal, one

17 ought to turn to two sources: the Statute and the

18 statements made in the Security Council at the time of

19 the adoption of Resolutions 808 and 827, the former

20 creating the Tribunal and the latter defining its

21 competencies through the Statute.

22 These are the only authentic records on the

23 questions of jurisdiction. The Statute is silent in

24 respect of the mandate of the Tribunal on the issue of

25 subpoena. Indeed, if the Statute in its entirety is

Page 221

1 construed properly, it is abundantly clear that the

2 Tribunal does not have the power to issue subpoenas

3 against sovereign states.

4 In that regard, if the Security Council wanted the

5 Tribunal to have such an extraordinary mandate, a

6 mandate that would create a new practice in

7 international law in dealing with states, it would

8 certainly have stated that very clearly. However,

9 exactly to the contrary, many Security Council members

10 were explicit that they wanted to exclude the

11 possibility of the creation of any creative innovations

12 to international law by the Tribunal. I will quote some

13 of them.

14 The statement of the Venezuelan delegate upon the

15 adoption of Resolution 827 includes the following

16 explicit remarks:

17 "The Tribunal as a subsidiary organ of the Council

18 would not be empowered with nor would the Council be

19 assuming the ability to set down norms of international

20 law or legislate with respect to those rights. It

21 simply applies existing international humanitarian law."

22 The delegate of the United Kingdom said:

23 "The Statute does not, of course, create new law,

24 but reflects existing international law in this field."

25 The New Zealand delegate was equally clear:

Page 222

1 "We must remember, however, that the Tribunal is a

2 court. Its task is to apply independently and

3 impartially the rules of customary international law,

4 and we believe conventional law applicable in the

5 territory of the former Yugoslavia."

6 The Secretary General stated in his report to the

7 Security Council of 3rd May 1993, to which the draft

8 stated is attached:

9 "It should be pointed out that in assigning to the

10 International Tribunal the task of prosecuting persons

11 for serious violations of international humanitarian

12 law, the Security Council would not be creating or

13 purporting to legislate that law. Rather, the

14 International Tribunal would have the task of applying

15 existing international humanitarian law."

16 Unfortunately the Prosecutor in seeking the

17 issuance of the subpoena in issue here is asking the

18 Tribunal to engage in conduct that contravenes both the

19 Statute and customary international law. The concept of

20 subpoena does not exist in neither the Statute nor in

21 international law. If one were to insist on this new

22 legal practice, one would need to apply it in respect of

23 all states equally, because of the principle of

24 sovereign equality of states. That is the basic premise

25 of the Charter and international law.

Page 223

1 Furthermore, Croatia cannot accept the use of

2 subpoena in respect of its state officials. According

3 to both the Statute and to the Rules of Procedure and

4 Evidence, the states have the obligation to cooperate

5 with the Tribunal and not particular governmental

6 bodies, nor particular officials.

7 All national laws, not only Croatia's, prohibit

8 the dissemination of state documents by its officials

9 without the prior approval of relevant state bodies.

10 While, it is true that states must cooperate with the

11 Tribunal, the state itself alone decides which is the

12 relevant body that will carry out the businesses of

13 cooperation with the Tribunal. A request for

14 documentation or assistance from particular state

15 officials that would violate internal laws on the use of

16 state documents is not only contrary to international

17 law, but it also threatens the internal legal

18 organisation.

19 When a Tribunal needs certain documents or when it

20 requires other forms of cooperation from Croatia, it

21 should communicate those requests through the government

22 office for cooperation with the Tribunal. Requests that

23 are submitted through other channels are not obligatory

24 to Croatia because they contravene international law and

25 violate the internal order of Croatia. No responsible

Page 224

1 government can accept a situation where the state is

2 by-passed or ignored.

3 Your Honour, let me pass to our second argument.

4 Our second argument is that subpoena is unnecessary.

5 Croatia, as any other state, is --

6 JUDGE McDONALD: Excuse me, Ambassador. Did you indicate

7 that you wish to respond to questions or should

8 I address those to Mr Rivkin or Miss Baragona?

9 MR RIVKIN: If I make a suggestion, your Honour, either of

10 us will be happy to respond to any questions.

11 MR SIMONOVIC: If I may clarify, your Honour, we are not

12 having the problem which is related to communication of

13 the Tribunal to Croatian authorities, so if you address

14 us, we will be happy to answer on any level that you

15 would prefer. If questions are related to this

16 statement of government, I will be more than happy to

17 answer.

18 JUDGE McDONALD: Before you go on then to your next point,

19 I have a few questions. One, you indicated that when

20 the Security Council established the Tribunal, it was

21 not creating law but it was following the law that

22 existed at that time. So it was not creating law. It

23 was merely applying the existing law. My question is:

24 what precedent did the Security Council have with

25 respect to (a) the establishment of a judicial

Page 225

1 institution under Chapter 7; and (b) the establishment

2 of a judicial institution under Chapter 7 which is

3 criminal in nature? What were the norms that existed at

4 that time with respect to those two considerations?

5 MR SIMONOVIC: Your Honour,it is very obvious that we are

6 facing something brand new with very little experience.

7 We are also facing problems related to competencies of

8 the court, to the importance of the court, which arise

9 from differences in comparative law which exists in the

10 United States, in the United Kingdom and Continental

11 legal systems.

12 I do agree with you certainly that the court is

13 being something new and in that sense there will

14 certainly be innovations, but I do not think that it is

15 acceptable that such innovation can include the creation

16 of new rules of international law. So when we are

17 creating the court, it needs to have some flexibility.

18 It needs to be efficient, but within the framework of

19 limits of international criminal law, and concerning

20 subpoena we do not have a single precedent in the

21 history of the courts when subpoena is being issued by

22 international tribunal to states, and there were

23 international tribunals.

24 JUDGE McDONALD: Mr Rivkin, at some point you can follow up

25 or if you wish to add now. Probably you do not want to

Page 226

1 interrupt your presentation. Ambassador, how do you

2 wish to proceed?

3 MR SIMONOVIC: For me it is perfectly convenient if

4 Mr Rivkin has something to add and if you would allow

5 it.

6 JUDGE McDONALD: That is fine with me.

7 MR RIVKIN: Being a lawyer, I wanted to clarify something

8 which sounded like a technicality.

9 JUDGE McDONALD: He is a professor of international law. We

10 need their guidance.

11 MR RIVKIN: I think the key point that the Ambassadors of

12 Croatia are trying to make is not that the creation of

13 the Tribunal by a Security Council was not an

14 exceptional practice and certainly not a very important

15 decision by the Security Council, but the Security

16 Council did not want the Tribunal to create new

17 international law. This is a fundamental difference

18 that I think we are trying to draw here. If I may just

19 add another quote here from the delegate of the United

20 Kingdom:

21 "The Statute does not, of course, create new law

22 but reflects existing international law in this field."

23 Again, as we will elaborate later on in your case

24 in chief and my supplementary remarks, the Security

25 Council almost has a plenary power to create all sorts

Page 227

1 of innovations, but only the Security Council, not

2 necessarily this Tribunal, and certainly it was not the

3 intention of the Security Council to vest the power in

4 you to create new law. So that is really the

5 distinctive belief we are trying to draw. Thank you,

6 your Honour.

7 JUDGE JAN: May I ask a question? The Security Council has

8 created an institution and given it a task of a judicial

9 nature, and it has also permitted it to frame its own

10 rules and procedures, etc. Now if the Tribunal, the

11 institution, is not in a position to obtain evidence,

12 then how can it perform its function which it has been

13 entrusted with by the Security Council, because some

14 sort of a summons, some sort of an order, some sort of a

15 subpoena has to be issued in order to collect the

16 evidence?

17 MR RIVKIN: If I may, your Honour, we are going to address

18 those issues at great length in our presentation.

19 Permit me just to say at this time two things very

20 briefly. Number one, I understand the argument of

21 effectiveness and efficiency. We do believe that before

22 you get to this point you need to look broadly at what

23 is the overall ambit of powers given to this Tribunal or

24 to any other body that is not a plenary body of a

25 sovereign, but exists on the basis of a limited grant of

Page 228

1 power from another body. Once you establish that ambit

2 of powers, all the other statutory tools apply. You

3 cannot do it backwards.

4 Secondly, as a factual matter, we do not see the

5 situation as being a zero sum game, your Honour, where

6 if you do not have a subpoena duces tecum power, you

7 have no ability to function at all. In fact, I think

8 facts speak for themselves. You have been functioning

9 quite successfully, and I certainly would not presume to

10 argue otherwise. You have indicted a number of people.

11 You were conducting other investigations, and I believe

12 you have convicted at least one individual. That is not

13 certainly not an indicia of judicial paralysis. Again,

14 if I may, we will address those issues at great length

15 in our subsequent presentation. Thank you, your Honour.

16 JUDGE JAN: Even investigators have to be given some sort

17 of a power to collect evidence. Similarly the defence

18 has to collect evidence in order to clear the position

19 of the client. As was remarked by my learned sister

20 judge, it is a new institution and therefore probably

21 new international law rules will have to be created in

22 order to make it official, so it does not become

23 impotent. If you cannot issue any order for the

24 collection of evidence, if you cannot issue any subpoena

25 to ask for documents, then it is an entirely impotent

Page 229

1 institution and I do not think the Security Council has

2 done its exercise in futility.

3 MR RIVKIN: Your Honour, forgive me. Your questions are

4 trying to draw out the thrust of our presentation. If

5 you indulge us, we beg to defer so Ambassador Simonovic

6 can continue his statement.

7 JUDGE McDONALD: Ambassador, you may continue.

8 MR SIMONOVIC: Thank you, your Honour. In fact, my second

9 issue is just related to what His Honour was asking.

10 The point we will argue is that a subpoena is

11 unnecessary. Croatia, as any other state, is obliged to

12 obey the request of the Tribunal. Why then does the

13 Tribunal require subpoena? Certainly not because of

14 efficacy. Because the subpoena is deemed to become no

15 use anyhow, because there is no sanction provided

16 explicitly for subpoena. Even if subpoena were issuable

17 under international law against states, it would be

18 considered no use since no sanction exists in support of

19 it.

20 To put it simply, the subpoena is not only

21 unlawful but useless and unnecessary as well. The only

22 available sanction for not complying with the requests

23 of the Tribunal as set out in the Statute and Rules is

24 notification of the Security Council which has a set of

25 sanctions at its disposal. The same and nothing more

Page 230

1 can be a sanction. However, it should be noted that

2 this step relates to the serious allegation of not

3 cooperating with the Tribunal and is not available to be

4 used as a substitute for what are perceived to be

5 procedural deficiencies. Croatia agrees that the

6 Tribunal should be efficient and that it should have

7 teeth which can bite, if necessary, but there is no need

8 to invent false and unlawful teeth that will bite and

9 hurt the international orders.

10 Your Honour, let me now pass to our third

11 argument, very important in the future argument that

12 subpoena is harmful.

13 The application of the subpoena is harmful,

14 because, first, it violates sovereignty of states. It

15 is offensive, and it increased the resistance against

16 cooperation of respective states with the Tribunal.

17 Secondly, it creates new legal practice, which will

18 raise suspicions and make creation of the permanent

19 international criminal court more difficult and less

20 likely. Should a tribunal step out of the bounds of its

21 jurisdiction and find in favour of the prosecution, that

22 is if the Tribunal empowered itself to step beyond the

23 bounds of its own jurisdiction and existing

24 international law by finding the subpoena valid and

25 enforceable, it would be counter-productive to its

Page 231

1 relations with states and also the future development of

2 the international criminal jurisdiction.

3 The creation of a new legal practice in this

4 instance would have far-reaching impact upon the present

5 international order, which is based on a clear

6 definition of sovereignty and the position of state.

7 The possibility that states could be requested to

8 make available state secrets will have negative impact

9 upon the further development of international criminal

10 jurisprudence, since states shall be unwilling to

11 support such developments. In this context we note that

12 during the preparations for the establishment of a

13 permanent international criminal court the subpoena has

14 not even been discussed as a possibility, because it

15 could infringe on or violate the sovereignty principle,

16 and it is, therefore, unacceptable to states.

17 Furthermore, the argument raised in the submission

18 of the prosecution about so-called culprit states upon

19 whom such claims can be made and other states against

20 whom they cannot creates different categories of

21 states. The introduction of such a concept to

22 international law would, first, produce international

23 outrage and be objected to by most and especially small

24 states, and, secondly, have a negative impact upon the

25 evolving process of the development of permanent

Page 232

1 international criminal court, to which this Tribunal

2 should otherwise give significant impetus.

3 In establishing and protecting sovereignty,

4 Croatia has had too many victims and has given enormous

5 sacrifices. Its citizens will not tolerate to be

6 treated as citizens of a second class state nor a

7 culprit state according to the criteria proposed by the

8 submission of the prosecution. This idiom, a "culprit

9 state", is especially disturbing when referring to

10 Croatia, a state that was a victim of aggression itself

11 and a state that helped Bosnia-Herzegovina survive.

12 Your Honour, after elaborating on three major

13 arguments against subpoena, that it is not founded in

14 Statute and in international law in general, in fact

15 that it is against it, that it is unnecessary because

16 states are obliged to cooperate with the court anyhow,

17 and that there is a clear, legally grounded way to

18 sanction their lack of cooperation, if necessary, and,

19 finally, that it is harmful, because it is irritating at

20 least some states that should cooperate with the

21 Tribunal, and because it makes the establishment of the

22 international criminal court less likely, let me

23 conclude.

24 It is tempting for the Tribunal, including the

25 honourable judge, to support the issue of the subpoena,

Page 233

1 especially taking into account that the Tribunal have

2 issued two of them already. It requires strength and

3 capability to view matters within a broader perspective,

4 to resist such a temptation.

5 I believe that the Tribunal is powerful enough to

6 resist such a temptation. The greatest majority of

7 amici curiae have been presenting rather similar or the

8 same views as the Republic of Croatia. However there

9 are a few participants at this hearing who would like

10 its outcome to represent a new step in the development

11 of the international criminal law.

12 Some amici curiae who are here, who have come not

13 as typical representatives of the legal systems and of

14 international law and international criminal law, but as

15 persons motivated to participate and contribute to the

16 creation of something new, perhaps a new precedent and a

17 new legal practice in international law. The real issue

18 is that the Tribunal must not create a dangerous

19 precedent, a dangerous new practice, since it would be

20 contrary to international law, unnecessary and harmful.

21 Instead, it should reject the temptation and reject the

22 use of subpoena.

23 The Tribunal, in our view, should continue with

24 well-balanced steps rooted in existing international law

25 and stay within the framework of the established

Page 234

1 international organ. Thank you, your Honour.

2 JUDGE JAN: Just before you finish, has the government of

3 Croatia nominated any functionary or authority through

4 which the request of the Tribunal for production of

5 documents, production of witnesses, can be routed,

6 because you said it should not be sent to the state or

7 state officials --

8 MR SIMONOVIC: Yes, your Honour.

9 JUDGE JAN: -- but the state authority designated by the

10 government. Have you designated a particular officer or

11 particular dignitary through whom these requests for

12 production of documents, production of witnesses can be

13 routed?

14 MR SIMONOVIC: Yes, your Honour. We have passed a

15 constitutional law on cooperation of Croatia with the

16 Tribunal, and within this law there is an explicit

17 provision concerning the establishment of the office for

18 cooperation. The head of the office is appointed, has

19 his name and is sitting right here, and it is clearly an

20 identifiable person.

21 JUDGE McDONALD: The obligation to cooperate does not

22 belong to the office, does it? It belongs to Croatia.

23 MR SIMONOVIC: Yes, your Honour.

24 JUDGE McDONALD: In Article 2 of your Constitutional Act

25 you provide:

Page 235

1 "On behalf of the Republic of Croatia, the

2 Government of the Republic of Croatia shall be the

3 co-ordinator of the cooperation with the Tribunal."

4 Later on you do mention the office -- I cannot

5 find it. Let us see. In any case, the obligation to

6 cooperate rests with Croatia, does it not?

7 MR SIMONOVIC: Yes, your Honour.

8 JUDGE McDONALD: With the office. The head of the office

9 is Mr Jelanic, who is not here. You have indicated he

10 is in the gallery.

11 MR SIMONOVIC: He is in the gallery. Constitution law

12 provides government to establish an office for

13 cooperation and it has established an office for

14 cooperation. Certainly the obligations are not

15 obligations of individuals. Those are obligations of

16 state, and the state has a status of an organisation

17 which is in charge of distributing powers to individual

18 offices. So representing a state we have an office

19 created by the government and having high government

20 officials, as a council of the office fully responsible

21 even for the harder decisions.

22 JUDGE McDONALD: I presume Professor Jelanic does not have

23 the authority to act in a way that the Government of

24 Croatia would not approve?

25 MR SIMONOVIC: Certainly he is acting in accordance with

Page 236

1 the laws of Croatia and it is a governmental office. In

2 the Council there are a couple of vice presidents of

3 government and ministers of the government.

4 JUDGE McDONALD: We have no additional questions, Ambassador

5 Simonovic. Thank you very much for responding to our

6 questions.

7 MR SIMONOVIC: Thank you, your Honour.

8 Presentation by MS BARAGONA

9 MS BARAGONA: Madam President, may it please the Tribunal,

10 I have been asked to address several points of

11 international and domestic law in addition to those made

12 by His Excellency Ambassador Simonovic.

13 First, the prosecution seeks an unusual form of

14 process in a subpoena duces tecum that is not recognised

15 under international law or the law of most states other

16 than the United States and even then in a form that

17 would not be available under American law.

18 Second, neither the Tribunal's Statute nor its

19 Rules for Procedure and Evidence properly construed

20 allow for the use of subpoena duces tecum against a

21 state or its officials.

22 Third, the Prosecutor seeks to sanction Croatian

23 government officials who are not subject to the

24 Tribunal's jurisdiction in their individual capacities,

25 and not subject to sanction in their official

Page 237

1 capacities.

2 Significantly these points implicate every United

3 Nations member state, this Tribunal, as well as others

4 in future international tribunals. It should be clearly

5 recognised here that the power claimed by the Prosecutor

6 to issue compulsory process to the Republic of Croatia

7 and to sanction its officials for failure to comply, if

8 accepted by this Tribunal, may be applied to each and

9 every state in turn. Thus, the proper disposition of

10 this issue is of enormous importance to the future of

11 international law.

12 JUDGE McDONALD: Excuse me, Mrs Baragona. I do not think

13 the prosecution has taken the position that it has the

14 authority or the Tribunal has the authority to impose a

15 penal sanction on a state. They do take the position

16 that the Tribunal may issue a subpoena, but may only

17 impose a penal sanction on individuals. Do you feel

18 that the mere denomination of the document as a subpoena

19 is somehow a sanction that exceeds the power of the

20 Tribunal?

21 MS BARAGONA: Yes, your Honour. We are discussing primarily

22 the form of this request. I think, as the Ambassador

23 has mentioned, the Croatian Government has no objection

24 to the cooperation which is explicitly stated in the

25 Rules. What it does have objection to is the form of a

Page 238

1 subpoena to be issued against a sovereign state. We are

2 not even discussing the use of a subpoena by the

3 Tribunal as against individual persons in their private

4 capacities. We are discussing the use of a subpoena, in

5 this case a subpoena duces tecum, as regards a sovereign

6 state, and then that subsequent application of subpoena

7 to its high government officials merely on the basis of

8 their capacity as officials and from that also applying

9 or expressing an ability to oppose a sanction against

10 that official for failure to comply.

11 JUDGE McDONALD: That is a different issue. If we can just

12 remain with the first issue, the Tribunal does have

13 authority to issue orders to states.

14 MS BARAGONA: We do not dispute that.

15 JUDGE McDONALD: And states have a duty to comply.

16 MS BARAGONA: We do not dispute that.

17 JUDGE McDONALD: The Tribunal has the authority to make a

18 determination that there has been non-compliance and

19 report it to the Security Council.

20 MS BARAGONA: No, we do not concede that.

21 JUDGE McDONALD: That itself would be a penalty, would it

22 not?

23 MS BARAGONA: We believe so, your Honour.

24 JUDGE McDONALD: I do not want the document to go to the

25 state to be entitled a subpoena. It appears to me it is

Page 239

1 more of a political-type argument. You were not present

2 when we were discussing the Bosnia-Herzegovina

3 subpoena. Perhaps Miss Glumac can enlighten you. The

4 suggestion was made by the individual that if I wrote

5 him a letter, perhaps he would come. That is in a sense

6 form over substance and telling the Trial Chamber and

7 the Tribunal how it should exercise its power. Just

8 because a party is offended because we use the word

9 "subpoena", if we make the determination that the

10 subpoena will not result in a penalty to be imposed by

11 the Tribunal, that is unfortunate, but the duty is to

12 comply.

13 MS BARAGONA: Your Honour, I do not think that Croatia is

14 offended. It is not an emotional response. This is a

15 technical response to a legal term of art. Subpoena, if

16 it becomes acceptable in international law as something

17 that is applicable to sovereign states, the development

18 in the Bosnian situation that: "We did not really mean

19 it to have any penalties" might not be carried forward.

20 In the future a subpoena duces tecum would be applied as

21 against sovereign states. We, the Croatian Government,

22 feel that that form is inappropriate.

23 JUDGE McDONALD: Does Croatia possess sufficient

24 sovereignty so as not to be bound to comply with an

25 order issued by the Tribunal?

Page 240

1 MS BARAGONA: If they invoke the exception of state secrets,

2 yes.

3 JUDGE McDONALD: I understand that.

4 MS BARAGONA: Otherwise they are -- otherwise they have

5 explicitly agreed to be bound to cooperate and have that

6 duty under the rules.


8 MS BARAGONA: Shall I continue?

9 JUDGE McDONALD: Yes. Excuse me.

10 MS BARAGONA: That was merely my introduction.

11 JUDGE McDONALD: Tell us some more.

12 MS BARAGONA: Okay. Item 1: the Tribunal's power to issue a

13 subpoena duces tecum to a state or its officials. The

14 Prosecutor seeks an extraordinary power that is

15 unavailable under most legal systems other than that of

16 the United States, and in a form that would neither be

17 legal nor constitutional in the context of a criminal

18 Prosecution in the United States. However, the

19 Prosecutor cannot point to any principle of

20 international law or any provision of a Statute

21 establishing this Tribunal, or to its Rules of Procedure

22 and Evidence that expressly allow the issuance of a

23 subpoena duces tecum against a state or its officials.

24 Rather, she would have the Tribunal believe that

25 this is a routine power inherent in all courts and

Page 241

1 therefore properly executed by this one. This is

2 untrue. The subpoena duces tecum is not a well-accepted

3 conventional device available routinely in the world's

4 courts. In fact, it is a concept that is unknown in

5 most legal systems.

6 The subpoena duces tecum is primarily an American

7 innovation, written in the very broad discovery

8 provisions of the United States Federal Rules of Civil

9 Procedure. Application of the subpoena duces tecum in

10 the international forum is highly controversial, and a

11 number of states have, in fact, adopted working statutes

12 which prohibit the domestic application of these

13 American-style discovery orders. Some of these states

14 include, for example, the Netherlands, France, Sweden,

15 the United Kingdom and Canada, some of the very same

16 states the prosecution is quoting as being in support of

17 the position that a subpoena duces tecum is available as

18 against a sovereign state.

19 The international application of American-style

20 discovery rules and particularly the subpoena duces

21 tecum is properly controversial. The subpoena duces

22 tecum is a device that is specifically tailored to

23 operate in the American legal system. It operates in

24 conjunction with all the statutory and constitutional

25 limitations on the powers of the court and the

Page 242

1 prosecutors in the United States, including the 4th

2 Amendment of the US Constitution, which prohibits

3 unreasonable searches and seizures and when directed

4 against government officials, the fundamental separation

5 of power principles enshrined in that document.

6 The Prosecutor would have this court import this

7 very unique American procedure into international law,

8 but without the legal and constitutional limitations

9 that restrict its use even in the United States.

10 Moreover, the subpoena duces tecum in the broad

11 civil form that the Prosecutor seeks here is not

12 available even in the United States. This is a criminal

13 tribunal. It has the authority to try criminal

14 indictments, indictments for the most serious possible

15 crimes, and to impose punishments up to and including

16 life imprisonment. In such situations the United States

17 Supreme Court has made it unequivocally clear that the

18 subpoena duces tecum available under the US Federal

19 Rules of Criminal Procedure cannot be used as the

20 Prosecutor would use it in this case as a discovery

21 device designed to collect any potentially relevant

22 information.

23 In the US case The United States v Nixon, the

24 court explained that a subpoena duces tecum sought in a

25 criminal case cannot be used as a general fishing

Page 243

1 expedition. Rather, the subpoena duces tecum in a

2 criminal case under the federal rules is a very limited,

3 narrowly tailored process for requiring the production

4 of documents before trial. Interestingly, the

5 Prosecutor cites the Federal Rules of Procedure, 17,

6 which describes the use of subpoena but does not go

7 further to Rule 17(H) which says:

8 "Statements by witnesses or prospective witnesses

9 may not be subpoenaed from the Government or the

10 defendant under this rule."

11 In the Nixon case, which involved a subpoena duces

12 tecum issued to the President of the United States

13 seeking certain specific documents -- in that case tape

14 recordings of the President and defendants -- the

15 Supreme Court ruled that a Prosecutor must meet a number

16 of specific requirements before the production of

17 documents can be compelled.

18 As the court wrote:

19 "A Prosecutor must show that the documents are

20 evidentiary and relevant, that they are not otherwise

21 procurable reasonably in advance of the trial by the

22 exercise of due diligence, that the party cannot

23 properly prepare for trial without such production and

24 inspection in advance of trial, and that the failure to

25 obtain such inspection may tend unreasonably to delay

Page 244

1 the trial, and that the application is made in good

2 faith and not intended as a general fishing expedition."

3 In other words, in order to carry the burden, a

4 Prosecutor must clear three hurdles: relevancy,

5 admissibility and specificity. Thus, with respect to

6 each and every document sought by the Prosecutor, she

7 must show that it will contain evidence admissible with

8 respect to the offences charged in the indictment. In

9 this case the Prosecutor has not even attempted to

10 establish that the documents she seeks might contain

11 relevant evidence, let alone evidence that would be

12 clearly admissible at trial.

13 She is, in fact, your Honours, embarking on

14 exactly the kind of fishing expedition which was

15 forbidden in the Nixon case. Therefore, despite the

16 Prosecutor's assurances that she merely is seeking to

17 invoke a well-established practice available to all

18 courts and thus by inference available to this Tribunal,

19 she is actual plea arguing for the importation of a

20 unique American-style practice into international law in

21 an unlimited form that is unknown even in the United

22 States, and indeed in a form which is fundamentally

23 inconsistent with the American Constitution and the

24 established rules governing in criminal procedure. We

25 urge the Tribunal to reject this assertion of power.

Page 245

1 Item 2.

2 JUDGE McDONALD: Before you leave the United States

3 procedure -- I thought I left that behind me, but let us

4 talk about it a little bit. First of all, you say that

5 it is not applicable in criminal proceedings in the

6 United States.

7 MS BARAGONA: In the broad sense being sought by the

8 Prosecutor in this case.

9 JUDGE McDONALD: Of course, there is a different

10 circumstance, is there not, because at least in terms of

11 sovereignty what we have in this institution is being

12 established under Chapter 7 of the UN Charter; there is

13 already a waiver of sovereignty by the member states

14 because they give the Security Council primary authority

15 to make the determination as to whether behaviour is a

16 threat to peace and to make the determination under 24

17 -- whatever the rule is -- to determine the appropriate

18 measures. So there is already a waiver of sovereignty.

19 MS BARAGONA: Vis-a-vis the Security Council.

20 JUDGE McDONALD: Vis-a-vis the Security Council, but, of

21 course, we do have the authority, as you have indicated,

22 to issue orders that must be complied with and a state

23 cannot say: "We are sovereign."

24 MS BARAGONA: No, I did not say that, your Honour. They can

25 respond: "We are sovereign and this is a state secret";

Page 246

1 yes.

2 JUDGE McDONALD: Let us leave that aside for a moment. Of

3 course they can object on the basis of national secrets

4 and in a moment we will talk about how that might be

5 dealt with as a general principle, absent the invocation

6 of a state secret privilege, they cannot waive

7 sovereignty and say: "We will not comply because we are

8 sovereign."

9 MR RIVKIN: If I may add, your Honour, we are not arguing,

10 much as some of us might prefer it, that your procedures

11 are governed by the American Constitution, although

12 I think that may not be a big problem as far as your

13 Honour is concerned. The whole purpose of elucidating

14 the American-style procedure is because it is our

15 impression, and -- correct us if we are wrong -- having

16 read the Prosecutor's brief, that the Prosecutor is

17 trying very hard to convince your Honours that the very

18 style of the process, the form of the process is a

19 routine device, and we believe it is very instructive

20 for this court to hear our view (a) that it is not a

21 routine device; and (b) that even in the very

22 jurisdiction, the mother load, if you will, of that

23 process which she is seeking would never fly.

24 From that perspective we will be happy to discuss

25 Nixon or any other case, but we are certainly not

Page 247

1 supporting a proposition that this Tribunal is bound by

2 American Constitution or American case law.

3 JUDGE McDONALD: I think if Miss Baragona can respond in

4 this respect, it might make it easier, and then when you

5 have your opportunity, we will talk to you. I suppose

6 my point was: when you say it is unknown even in the

7 United States, then what you meant is that it is unknown

8 that the national security privilege cannot be raised as

9 a bar to the subpoena?

10 MS BARAGONA: Yes, but I was not particularly referring to

11 that when I was saying the use of the subpoena duces

12 tecum was unknown -- was unavailable as a tool.

13 JUDGE McDONALD: It is unavailable because it is separation

14 of powers. What I am suggesting is that we have a

15 different situation here, because what we have now at

16 least is a body that was created by the Security Council

17 under Chapter 7, and the issue of sovereignty or when

18 you want to say analogously separation of powers does

19 not have a place in this proceeding, nor does it have a

20 place in any judicial institution that is treaty based.

21 With respect to irrelevance, you stated that there

22 are three standards: relevance, admissibility and

23 specificity. Of course the documents must be admissible

24 but need they be relevant or must they just lead to

25 evidence that must be relevant or should we be concerned

Page 248

1 with that since that is a American rule?

2 MS BARAGONA: I think I agree with your latter statement. I

3 am not in a position to say what the court should be

4 reviewing or what rules or what thought processes it

5 would be applying when it was determining the relevancy.

6 JUDGE McDONALD: When you say that subpoenas may not -- that

7 statements may not be subpoenaed, that may be true under

8 certain circumstances, but of course, in the United

9 States statements are given to the prosecution under the

10 Federal Rules of Criminal Procedure after a witness

11 testifies. Is that not so?

12 MS BARAGONA: Yes, your Honour. We are not saying that the

13 Croatian Government would not give documents and would

14 not give statements. We are objecting to the tool being

15 requested by the Prosecutor.

16 JUDGE McDONALD: Because the federal rules of criminal

17 procedure explicitly provide that statements in criminal

18 proceedings will not be the subject of discovery prior

19 to the witness testifying. So there is an explicit rule

20 in the American system that they are not required to be

21 produced -- statements -- prior to the witness

22 testifying.

23 MS BARAGONA: Yes, your Honour.

24 JUDGE McDONALD: We do not have a rule like that, do we?

25 MS BARAGONA: No, you do not but you do not also have the

Page 249

1 rule which was 17(C) which the Prosecutor cited if

2 support of her proposition that the subpoena duces tecum

3 was available. My only point in that, referring to

4 17(H) in addition to 17(C), was to point out that the

5 Prosecutor is taking tools out of context for her own

6 purposes and not fully informing in her brief what the

7 real rule is.

8 JUDGE McDONALD: What the limitations are.

9 MS BARAGONA: What the limitations are.

10 JUDGE McDONALD: I understand. With respect to Reynolds

11 and Nixon, do these cases stand for the proposition that

12 there is an absolute bar to the production of documents

13 that may contain national secrets, or does it stand for

14 the proposition that the responding party must make a

15 showing that -- a facie showing -- it does not use the

16 term prima facie -- an initial showing that they are, in

17 fact, national secrets, and that under certain

18 circumstances may be enough so that the court will not

19 receive those documents itself.

20 MS BARAGONA: Your Honour, I think there is some truth in --

21 JUDGE McDONALD: You understand what I mean?

22 MS BARAGONA: I think there is a correctness in both

23 statements that you made. Nixon does not stand for the

24 proposition that documents from the sovereign government

25 are unavailable. There must be a balancing. I am

Page 250

1 speaking to this subject later, but that balancing in

2 the particular case was a balancing made by two organs

3 of the same sovereign state.

4 JUDGE McDONALD: Exactly.

5 MS BARAGONA: This is a different situation.

6 JUDGE McDONALD: Protected by the notion of separation of

7 powers and a question of just how far the judiciary can

8 impede into the province of the executive branch.

9 MS BARAGONA: Yes. I think by reference to this situation,

10 we say how far can the judicial Tribunal impede into the

11 sovereignty of the state to make its own determination,

12 its own balance of whether the state security interests

13 are somehow not to the level of the Tribunal's interest

14 in concluding to a fair and just end.

15 JUDGE McDONALD: I wonder whether that is an appropriate

16 fit, because what we have here is a body, the

17 International Tribunal, that is given primacy because of

18 the powers that flow from Chapter 7, and sovereignty

19 really is -- I do not see it as an issue.

20 MS BARAGONA: Primacy over national law but not primacy over

21 the sovereignty of a country.

22 JUDGE McDONALD: Primacy in so far as states have a duty to

23 cooperate, primacy in so far as they have a duty to

24 defer to the jurisdiction of this Tribunal if there is

25 an on-going procedure.

Page 251

1 MS BARAGONA: Respectfully I think primacy is used in a

2 different context, your Honour. By objecting to the use

3 of the term "primacy" I am not saying that the

4 Government of Croatia does not have a duty to cooperate.

5 JUDGE McDONALD: I think you are right. "Primacy" is used

6 in a context of the relationship between our proceedings

7 and the proceedings of another state.


9 JUDGE McDONALD: You are correct, but they do have a duty,

10 though that flows from Chapter 7 to comply with the

11 orders of the Tribunal because we are an enforcement

12 measure. Is that not so?

13 MS BARAGONA: We have no objection to that.

14 JUDGE McDONALD: Okay. Okay. But national secrets then.

15 In terms of the way that national secrets then are

16 handled even by a tribunal, by our Tribunal as opposed

17 to a federal court in the United States, there may be

18 different considerations there, because you do not

19 have --

20 MS BARAGONA: I think they are very different, your Honour.

21 I think it is of a difficult analogy to say that the

22 Tribunal, which is an international body, which does not

23 answer to the people of the sovereign state, nor

24 represent the sovereign state -- it is difficult to say

25 that that Tribunal is in the same position to judge the

Page 252

1 national security interest of a sovereign state as is

2 another organ of that same sovereign state to do so.

3 JUDGE McDONALD: So you say we are in a lesser position and

4 we should give greater deference to the states in the

5 assertion of their national interest privilege.

6 MS BARAGONA: Yes, your Honour, because I believe that there

7 is a tool available to the Tribunal if they are unhappy

8 with such a situation. They have refer it to the

9 Security Council.

10 JUDGE McDONALD: Which will then exercise its political

11 judgement.

12 MS BARAGONA: Its plenary powers, given to it by that

13 sovereign state.

14 On to item 2. The Prosecutor seeks to exercise

15 power that the Security Council has not granted to the

16 Tribunal. The Prosecutor's claim that the Security

17 Council vested this Tribunal with express power to issue

18 a subpoena duces tecum to states and to officials also

19 is untrue. Her brief fails to point to any language in

20 the Tribunal's founding Statute that expressly grants it

21 such authority. Rather, she seeks the Tribunal to infer

22 an express grant, itself a contradiction in terms, from

23 the Tribunal's Statute and Rules of Procedure and

24 Evidence.

25 The provisions the Prosecutor invokes, however,

Page 253

1 neither expressly nor by implication give the Tribunal

2 the power to issue a subpoena duces to a state or its

3 officials. Under the Tribunal's Statute, the obligation

4 of a state like Croatia is to cooperate with and assist

5 Tribunal. Emphatically the Statute does not give the

6 Tribunal general authority to prosecute or judge

7 states. In undertaking the obligation to cooperate with

8 and assist the Tribunal, neither Croatia nor any other

9 state has agreed to carry out the Tribunal's orders

10 without question regardless of whether they are

11 consistent with established international law and

12 practice.

13 The Tribunal's relationship to states is, in fact,

14 carefully delineated in the Statute.

15 JUDGE JAN: Would you please repeat the last sentence

16 again.

17 MS BARAGONA: In undertaking the obligation to cooperate

18 with and assist the Tribunal, neither Croatia nor any

19 other state has agreed to carry out the Tribunal's

20 orders without question regardless of whether they are

21 consistent with established international law and

22 practice.

23 JUDGE JAN: So they have to sit in judgement upon the

24 judgement of the Tribunal. That is what you intend

25 there?

Page 254

1 MS BARAGONA: No, your Honour. Respectfully what I would

2 say is like any counsel or any party involved in a

3 question before a Tribunal, there are challenges to

4 procedure which are available to them.

5 JUDGE JAN: Certainly you can criticise a judgement. After

6 a judgement is delivered, it becomes public property.

7 MS BARAGONA: I am sorry. I did not understand what you are

8 saying.

9 JUDGE JAN: A judgement delivered of course is public

10 property. It can be criticised but it has to be carried

11 out but what you are saying is different.

12 MS BARAGONA: I am saying that a state which has agreed to

13 cooperate with and assist this Tribunal still has a

14 right to make objections when they feel that they are

15 just, appropriate and necessary.

16 JUDGE JAN: Carry on.

17 JUDGE McDONALD: What is the analogue for this Tribunal in

18 international law? In your brief you say that the

19 Prosecutor can point to no judicial institution that has

20 the power to issue subpoenas and what they do is refer

21 to other international judicial institutions, all of

22 which are without that power, and I think you are

23 correct, but is there an analogue? Can we go to court X

24 that existed in international law and say: "Here is a

25 court that existed in international law and that does

Page 255

1 not have a subpoena power?". Is there an analogue in

2 international law?

3 MS BARAGONA: We all agree, your Honour: the answer is the

4 International Court of Justice.

5 JUDGE McDONALD: Thank you very much. I do not know

6 whether everyone would agree. That is fine. In the

7 International Court of Justice, as I pointed out

8 yesterday -- I do not have it with me -- the Article of

9 the Charter provides that there is a duty to resort to

10 the Security Council for enforcement. So in creating

11 the International Court of Justice there it was

12 determined that you must go to the Security Council if

13 there is a need for enforcement. There is nothing in

14 that Statute, and you would think that the drafters of

15 our Statute, knowing what they said in the Charter as it

16 relates to the International Court of Justice, that if

17 they wanted to make that requirement, they could have

18 taken their pen and copied the language directly from

19 the Charter. They did not.

20 MS BARAGONA: I think that issue was addressed in one of the

21 amici briefs.

22 JUDGE McDONALD: Probably not to my satisfaction. You tell

23 me about it. Article 94 says:

24 "If any party to a case fails to perform the

25 obligations incumbent upon it under a judgement rendered

Page 256

1 by the court, the other party may have recourse to the

2 Security Council, which may, if it deems necessary, make

3 recommendations or decide upon measures to be taken to

4 give effect in the judgement."

5 We have a principle, do we not, even in

6 international law -- I mean in American law -- I do not

7 remember what it is -- maybe one of the scholars can

8 tell us about it -- that by omitting that reference

9 perhaps it was intended that it not apply to this court.

10 MS BARAGONA: Your Honour, two comments. An analogue does

11 not mean an exact replica and equal situation. There

12 will be points that are similar and points that are

13 dissimilar.

14 As regards the second, it is known in more common

15 law systems that that which is not prohibited is

16 allowed, but under civil law that which is not allowed

17 is prohibited. Now, we could get into a very lengthy

18 discussion regarding whether common law's principle or

19 civil law's principle is the more appropriate one to

20 apply for this International Tribunal, but I am at this

21 point not prepared to do that in a sufficient manner.

22 JUDGE McDONALD: Would you agree that the Statute itself --

23 well, that may not be a fair question -- is more common

24 law than it is civil law, the Statute creating the

25 Tribunal? It has attributes of both so that is not

Page 257

1 really...

2 MS BARAGONA: I have to say, your Honour, I do not think I

3 am in a position to answer that question. I would point

4 out, though, that two-thirds of the world's judicial

5 bodies are civil law. So the balance of legal weight

6 would be on the side of civil law, which says that which

7 is not allowed is prohibited.

8 MR RIVKIN: If I may supplement, your Honour --

9 JUDGE McDONALD: Fine. One other question before

10 I forget. I would appreciate if you would provide me

11 with cites to the blocking statutes that you referred to

12 on page 7 of your brief.

13 MR RIVKIN: We shall do so, your Honour. I think it might

14 be instructive to elaborate in this instance we clearly

15 believe it is a civil law situation. Again I will get

16 into it in greater detail in my remarks. Very briefly,

17 with all due respects to your Honours, you are a

18 Tribunal with much limited, very important, very awesome

19 powers, but limited powers. Therefore we believe the

20 proper proposition is the absence of a specific language

21 creating some power is exclusive but is definitive proof

22 that you do not have this power. It would be absurd in

23 that statutory situation to enumerate all of them but,

24 briefly, your Statute does not indicate that you have

25 the power to send out snatch squads or command military

Page 258

1 force to accomplish your objectives.

2 I mean, one can think about thousands of different

3 powers that you do not have. It would have been absurd

4 for Security Council to set them all out in explicit

5 detail. Their absence with all due respect to your

6 Honours, to us is proof you do not have a problem rather

7 the reverse. Thank you.

8 MS BARAGONA: One last comment regarding your question about

9 the analogy between the International Court of Justice

10 and the Tribunal. The International Court of Justice is

11 on an equal footing with the Security Council. This

12 Tribunal is an auxiliary organ of the Security Council.

13 That would suggest that there are some differences in

14 the powers that are available to the two. In that

15 situation it may be that the Security Council has that

16 power, hence the Tribunal's need to go to the Security

17 Council to have that power enforced.

18 JUDGE McDONALD: We are subsidiary, an independent body,

19 Judge Odio Benito would say.


21 MS BARAGONA: Which is a very good description.

22 JUDGE ODIO BENITO: There is another important difference

23 between the ICJ and this Tribunal. We are a penal

24 Tribunal prosecuting persons who are detained in jail.

25 MS BARAGONA: ICJ is a court for states also.

Page 259

1 JUDGE ODIO BENITO: Hypothetically speaking, it is very

2 difficult to imagine how could this Tribunal prosecute

3 fairly and expeditiously someone going every time to the

4 Security Council, asking for the cooperation of states,

5 hypothetically speaking. It is very difficult.

6 MS BARAGONA: Your Honour, in no way are we proposing that

7 this Tribunal goes to the Security Council in every

8 instance. We are only concerned with the very narrow

9 area regarding the issuance of a tool such as the

10 subpoena against a sovereign state. There are many

11 instances where this Tribunal has no requirement to go

12 to the Security Council. We are only saying that, in

13 this particular instance, where this Tribunal feels that

14 a member state has not cooperated, you then have the

15 recourse of the Security Council. It is not that you

16 have no recourse. It is that in this particular, narrow

17 situation the remedy that is available is the Security

18 Council.

19 JUDGE McDONALD: You may proceed, Mrs Baragona. You were

20 saying -- you were beginning to discuss your argument

21 that there is no language in the Statute.

22 MS BARAGONA: The Tribunal's relationship to states is, in

23 fact, carefully delineated in the Statute and is

24 governed by Article 29 of that document. Article 29

25 requires all states to cooperate with the Tribunal, and

Page 260

1 provides that:

2 "States shall comply without undue delay with any

3 request for assistance or an order issued by a trial

4 chamber including but not limited to the taking of

5 testimony and the production of evidence".

6 The Prosecutor claims that this language gives the

7 Tribunal the power to issue subpoenae duces tecum to

8 statements, because it enjoins statements to comply with

9 requests for assistance and orders issued by the court

10 for production of evidence. This language, however,

11 must be read in context. First, the types of orders

12 actually named in Article 29 all address the problems of

13 identifying, investigating, locating and arresting

14 individual suspects. The full provision requires states

15 to comply with requests for assistance and to comply

16 with orders of the following type: the identification

17 and location of persons --

18 JUDGE JAN: Read the principal clause not including -- read

19 the principal clause of this subsection.

20 JUDGE McDONALD: It says:

21 "States shall comply without undue delay with any

22 request for assistance issued by a Trial Chamber

23 including but not limited to ..."

24 JUDGE JAN: It is a general power, because when you use the

25 word "including" it is extending --

Page 261

1 MS BARAGONA: Including these particular enumerated tools or

2 these particular enumerated actions, all within the

3 context of the problem of identifying, locating,

4 investigating and locating, and arresting individual

5 suspects.

6 JUDGE JAN: But not limited to.

7 MS BARAGONA: Not limited to item 1 through 5 as regards the

8 problem of identifying, locating, investigating and

9 arresting suspects.

10 JUDGE JAN: I am not sure many writers of statutes would

11 agree with you on that interpretation.

12 JUDGE McDONALD: You are not saying that that is the sole

13 obligation of states?

14 MS BARAGONA: No, your Honour.

15 JUDGE McDONALD: As it relates to the Tribunal, that is the

16 sole obligation of being able to arrest and detain and

17 transfer persons who are indicted.

18 MS BARAGONA: Not even the sole responsibility, just so that

19 it is illustrative of but not conclusive.

20 JUDGE McDONALD: Croatia has taken the position in its

21 Statute, in its constitutional Act on cooperation with

22 the International Tribunal in Article 25 that it will

23 cooperate with the Tribunal in investigative measures.

24 MS BARAGONA: We do not disagree with that, your Honour.

25 JUDGE McDONALD: That is not something that they are doing

Page 262

1 because they want to; that is something that is part of

2 their obligations under the Statute. Is that not so?



5 MS BARAGONA: The Prosecutor would interpret the language of

6 item number 2, which states: "The taking of testimony

7 and the production of evidence" to incorporate the

8 issuance of a subpoena duces tecum merely because it

9 refers to the production of evidence. She is unable,

10 however, to cite any authority supporting the

11 proposition that the Security Council intended to

12 incorporate within the term "production of evidence" the

13 very specific tool and process of a subpoena duces tecum

14 against a state. As explained above, orders requiring

15 the production of documents as a discovery device are

16 not established international practice, nor are such

17 orders routinely used the by all states in domestic

18 disputes. Rather, the subpoena duces tecum is a device

19 that is found in US civil and criminal procedure. There

20 is, in fact, no evidence that the Security Council

21 intended to incorporate within the Tribunal's Statute

22 the US Federal Rules of Civil or criminal procedure or

23 to invest the Tribunal with the power to issue all of

24 the orders and process that a court in the United

25 States, or any other international court for that

Page 263

1 matter, may issue. The Prosecutor's invocation of

2 Article 19 of the Statute which gives the Tribunal the

3 authority to issue:

4 "Such orders and warrants for the arrest,

5 detention, surrender or transfer of persons or any other

6 order as may be required for the conduct of the trial";

7 and Article 15, which authorises the Tribunal to adopt

8 the rules of procedure and evidence suffer from the same

9 fatal flaw, as does the Prosecutor's invocation of Rule

10 54."

11 Rule 54 allows the Tribunal to issue orders,

12 summonses, subpoenas, warrants and transfer orders as

13 may be necessary for the purpose of an investigation or

14 the preparation or conduct of the trial. The rule does

15 not, however, provide for the issuance of such process

16 against a state, nor does it provide for the issuance of

17 a subpoena duces tecum which, (discussed above) is an

18 extraordinary process that is not an established

19 international law procedure. Notably Rules 55 through

20 59 detail exactly how a state's cooperation may be

21 sought to enforce orders issued pursuant to the general

22 rule of 54. No provision is made for the issuance of

23 binding process directed at a state, of which it is

24 itself the subject.

25 JUDGE McDONALD: Rule 54 also provides for the issuance of

Page 264

1 orders:

2 "Orders may be directed to states".

3 Is that correct?

4 MS BARAGONA: Yes, your Honour.

5 JUDGE McDONALD: Okay. Transfer orders also provided in

6 54, those may be directed to states; is that correct?


8 JUDGE McDONALD: Warrants? Summonses? May they be

9 directed to states?

10 MS BARAGONA: Warrants are directed to a suspect and the

11 state is asked to help execute it.

12 JUDGE McDONALD: So the warrant is sent to the state and we

13 have unsuccessfully asked for states to cooperate in the

14 execution of those warrants. Those then are directed to

15 the state. Summonses, would those be directed to states

16 for execution?

17 MS BARAGONA: Yes, your Honour.

18 JUDGE McDONALD: Everything mentioned in 54 you would agree

19 are addressable to states except for subpoenas? You

20 would say that that is because of the sovereign immunity

21 of a state; is that correct?

22 MR RIVKIN: If I may, your Honour --

23 JUDGE McDONALD: Let us give Miss Baragona a chance. You

24 will have an opportunity to supplement it.

25 MS BARAGONA: Your Honour, the subpoena may be issued for

Page 265

1 the purpose of investigating and the preparation or the

2 conduct of the trial. The state's obligation is to

3 cooperate.

4 JUDGE McDONALD: Okay. With respect to Article 29, you

5 have said that that really focuses on persons. I do not

6 think I fully understand your argument, but I thought

7 you were saying that it really focuses on a duty to

8 cooperate with respect to turning over, surrendering,

9 transferring persons, and is really a discovery device

10 for the Prosecutor. Is that your argument?

11 MS BARAGONA: Your Honour, my argument is much simpler than

12 that. It is that the provisions are not made for the

13 provision of binding process directed at the state. The

14 Tribunal has these powers and the state has an

15 obligation to cooperate. When the state in the view of

16 the Tribunal has not fulfilled its obligation to

17 cooperate, the Tribunal then is left to refer the matter

18 to the Security Council.

19 JUDGE McDONALD: Which is not provided for in the Statute,

20 but you say is provided for in the Rules.


22 JUDGE McDONALD: But all of those Rules deal with -- 11, 59

23 and 61 all deal with situations that occur before the

24 initial appearance, before the Trial Chamber begins the

25 process of attempting to set an expeditious trial for an

Page 266

1 accused like General Blaskic, who is here. So we are in

2 a different posture now, are we not? If the state had

3 refused to execute an arrest warrant for co-counsel --

4 not co-counsel -- a co-defendant, for example, that may

5 be one thing, but when we now have an individual in

6 custody, do you not think that the tribunal has an

7 overriding responsibility to provide, as is set forth in

8 Article 20, I think, of the Statute, an expeditious

9 trial -- fair and expeditious proceeding.

10 MS BARAGONA: Yes, your Honour, but that would not

11 necessarily carry forward as to giving it a specific

12 power for subpoena duces tecum.

13 JUDGE McDONALD: Do you not believe that criminal courts

14 have inherent powers which are necessary for the proper

15 conduct of their proceedings?

16 MS BARAGONA: Within the limited scope of their limited

17 jurisdiction and powers, yes.

18 JUDGE McDONALD: Limited scope of jurisdiction and their

19 powers of course inherent by its very nature and by

20 definition means it would not be set forth specifically

21 but explicitly.

22 MS BARAGONA: What is inherent would be limited. It is not

23 a situation where the Tribunal could infer whatever was

24 necessary.

25 JUDGE McDONALD: Right. You say it must be necessary and

Page 267

1 effective, and in truth that power is not necessary

2 because we can go to the Security Council.

3 MS BARAGONA: Exactly.

4 JUDGE McDONALD: Here we are now with a person in custody

5 for 12 months. You heard defence counsel, Mr Hayman,

6 and saw him, and he is anxious for his client obviously

7 to have a trial. If these records are necessary for a

8 fair trial, we now are arguing with dozens of people

9 about this, and then you would suggest that after we

10 finish our discussion we write a letter to the Security

11 Council and ask them to exercise their political

12 judgement, as Mr Malanczuk said yesterday, as to whether

13 or not they would allow us to continue with our judicial

14 proceedings. Is that truly effective?

15 MS BARAGONA: Would tailor it much more narrowly. I would

16 not say that you would have to be -- that you would be

17 unable to proceed. In every judicial forum there are

18 limitations. There are points where the proceeding must

19 be delayed because of important issues that have to be

20 clarified. This subpoena issue, the subpoena duces

21 tecum issue is one of those issues. From our position

22 we are not doing this in any way to unduly delay the

23 trial. We are doing this -- we are objecting because we

24 feel that this is a fundamental point of international

25 law, that this particular tool requested by the

Page 268

1 prosecution is unavailable.

2 JUDGE McDONALD: It is unknown.

3 MS BARAGONA: Unknown.

4 JUDGE McDONALD: It sure is.

5 MS BARAGONA: And should not be applied as against a

6 sovereign state or its high officials. We feel that

7 that is important enough to be clarified before we

8 proceed. It does not mean that the Prosecutor could not

9 employ any other means available to her to continue to

10 speak the very same information which she believes is

11 important or necessary.

12 JUDGE McDONALD: And the defence also now has requested

13 that a subpoena be issued.

14 MS BARAGONA: Uh-huh.

15 JUDGE McDONALD: Excuse me just a minute. Miss Baragona,

16 you are doing fine. We will stand in recess for fifteen

17 minutes.

18 (11.30am)

19 (Short break)

20 (11.45 am)

21 JUDGE McDONALD: Have you completed your submission, Miss

22 Baragona?

23 MS BARAGONA: No, your Honour.

24 JUDGE McDONALD: Pardon me?

25 MS BARAGONA: No, your Honour.

Page 269

1 JUDGE McDONALD: Okay. You may proceed.

2 MS BARAGONA: In truth, your Honours, the prosecution's

3 appeal to what is undoubtedly the most threadbare and

4 abusive prosecutorial tool known in law is actually an

5 argument of necessity. The power to issue a subpoena

6 duces tecum the prosecution claims is necessary for the

7 effective performance of the Tribunal's function and

8 therefore it must have it. If the Prosecutor is

9 correct, of course, then the Tribunal has any and all

10 power that might be considered necessary for the

11 effective performance of its functions. Under the

12 Prosecutor's reasoning, the Prosecutor could demand the

13 Tribunal issue an order allowing it to use any measures

14 necessary, legal or illegal, to obtain evidence she

15 believes might be relevant to a particular prosecution.

16 Indeed, the Prosecutor would be able to demand an order

17 allowing for the kidnapping or torture of suspects or

18 witnesses because this may be necessary for the

19 effective performance of the Tribunal's function.

20 This would be an unprecedented grant of power and

21 of doubtful legality, and a grant that the Security

22 Council neither made nor purported to make. We ask that

23 the Tribunal firmly reject the Prosecutor's appeal to

24 the justification of necessity. Even if the claim of

25 necessity were legitimate, the Prosecutor has failed to

Page 270

1 show that any court, domestic or international,

2 recognises the subpoena duces tecum in the broad,

3 unlimited form she has requested.

4 How can a power denied to most other courts be

5 considered to be necessary for this Tribunal? In fact,

6 the Prosecutor's real claim here is that this

7 extraordinary power would be expedient; subverting the

8 usual rules of law and process would, of course, always

9 make any Prosecutor's job easier. Such claims, however,

10 should have no standing in this or in any other criminal

11 court, and should be rejected.

12 Of course, if the Prosecutor is correct, then not

13 only is Croatia subject to the subpoena duces tecum

14 because this might be necessary, but each and every

15 other state would be subject to the same process,

16 regardless of their national security interests. In

17 this record it is important to state that neither the

18 Prosecutor nor the Tribunal are authorised by the

19 Security Council, and neither are in a position to judge

20 the national security needs or interests of Croatian or

21 any other states.

22 The right of states to decline a request for

23 national security information is, in fact,

24 well-established, and even the Prosecutor concedes that

25 states may invoke the exception of national security.

Page 271

1 She incorrectly asserts, however, that Croatia's

2 national security claims must be subject to the

3 discretion of the Trial Chamber which has issued the

4 subpoena duces tecum.

5 To support this extraordinary claim, the

6 Prosecutor cites numerous examples where the domestic

7 courts of the state have required production of

8 materials that are subject to a claim of national

9 security, after weighing the claim against other

10 competing interests in such a case. Such examples,

11 however, are entirely opposite to the case where an

12 international tribunal seeks such security information

13 from a sovereign statement.

14 In the case of a domestic dispute, the domestic

15 court that waives the claim of national security is

16 nevertheless a part of the state and the nation

17 involved. The judges who make such decisions are part

18 of the constituted legitimate government of such states,

19 and ultimately are accountable either to higher

20 government authority or to their fellow citizens for the

21 decisions they make. The only issue in such cases is

22 which institution or individual in the state in question

23 is constitutionally empowered to speak definitively for

24 the sovereign.

25 Neither the Prosecutor nor the Tribunal can speak

Page 272

1 for Croatia or any other state and neither are in either

2 sense accountable to the Croatian people. They cannot

3 claim the right to determine what is or is not the

4 national security interest of the Croatian people any

5 more than they can claim to determine the national

6 security interest of the people of the United States,

7 Great Britain, France, Germany or any other sovereign

8 state. Indeed, it is well settled practice for states

9 in similar situations to refuse requests for assistance

10 from international courts on the grounds of national

11 security. Article 48 of the Statute of the

12 International Court of Justice, for example, provides:

13 "That the court shall make orders for the conduct

14 of the case and make all arrangements connected with

15 taking of evidence."

16 Article 49 there allowed the court to call on the

17 parties to produce any documents. However, the

18 obligation of even party states to comply with such

19 requests is limited.

20 For example, the United Kingdom refused to supply

21 certain documents to the International Court of Justice

22 in the Corfu Channel case, in which it was a party, and

23 it was not subject to sanction. There is no authority

24 in international law or in reason that would support a

25 different rule for Croatia. In her zeal, the Prosecutor

Page 273

1 also has asserted that Croatia, having once been

2 incorporated into the Socialist Federal Republic of

3 Yugoslavia, has a special obligation to cooperate with

4 whatever orders she may seek. This special obligation

5 is found, the Prosecutor argues, from the Chapter 7

6 powers of the Security Council, which are:

7 "Coercive vis a vis the culprit state or entity

8 and only mandatory vis-à-vis the other member states."

9 The Security Council has not and could not determine

10 that the Republic of Croatia poses a threat to the

11 peace, that it has caused a breach of the peace or that

12 it is guilty of an act of aggression.

13 It is not a culprit state, as the Prosecutor has

14 implied. Although this is neither the time or the place

15 to recount the factual basis of the conflict in the

16 former Yugoslavia, Croatia was and has been recognised

17 by the international community, including the Security

18 Council and several of its permanent members, as a

19 victim of aggression. In any event, the powers

20 attributable to the Security Council under Article 7 are

21 uniquely within its special competence.

22 It has the power to declare a sovereign state to

23 be an international outlaw and to bring the full force

24 of the international community, including military

25 force, down upon it. These powers can be exercised only

Page 274

1 by a majority vote of the Council and is subject to veto

2 by any one of the permanent members. They are not

3 susceptible to exercise by the Prosecutor or by this

4 Tribunal. Indeed, these vast powers are not judicial

5 powers in any sense. These involve political, policy

6 and military determinations that are inherently beyond

7 the purview of any traditional body.

8 Croatia has the obligation to assist the Tribunal

9 that every other member state has, no more, no less. It

10 has, in fact, cooperated with the Tribunal to the extent

11 far in excess of other states involved. I would point

12 out at this time that Croatia as we speak and meet here

13 today is cooperating with requests from the Prosecutor

14 to produce documents.

15 Third and final point. The Tribunal does not have

16 the authority to sanction a state official for failing

17 to comply with the purported subpoena duces tecum. The

18 Prosecutor claims that the Tribunal is empowered to

19 sanction officials of the Government of the Republic of

20 Croatia for failure to comply with the subpoena duces

21 tecum. The Tribunal should also reject this claim. The

22 Tribunal was created by the United Nations Security

23 Council for a specific purpose and was endowed with

24 specific limited authority to achieve that purpose.

25 Under the Tribunal's founding Statute its competence is

Page 275

1 expressly stated and defined as follows:

2 "The International Tribunal shall have the power

3 to prosecute persons responsible for serious violations

4 of international humanitarian law committed in the

5 territory of the former Yugoslavia since 1991 in

6 accordance with the provisions of the present Statute."

7 Thus, in accordance with Article 1 of its Statute,

8 the Tribunal's authority is limited to the prosecution

9 of persons in accordance with the provisions of the

10 Statute. The Statute provides no mechanism by which the

11 Tribunal can independently sanction either a state or

12 its officials for failing to comply with the purported

13 subpoena duces tecum. The Tribunal has itself

14 acknowledged this in its Rules of Procedure and

15 Evidence, which do not purport to allow the sanctioning

16 of a state for failing to comply with such a request.

17 Indeed, where the Tribunal's Rules of Procedure

18 and Evidence do address the question of a state's

19 failing to cooperate with the Tribunal, the Tribunal

20 properly defers to the Security Council. For example,

21 Rule 10 allows the Trial Chamber to issue a formal

22 request to a state to defer domestic judicial

23 proceedings concerning matters within the Tribunal's

24 jurisdiction. If a state fails to comply with such a

25 request, the Trial Chamber may request that the

Page 276

1 President report the matter to the Security Council.

2 The same is true under Rule 13.

3 Indeed, this is the standard international

4 practice:

5 "No international tribunal we are aware of has

6 been granted powers to enforce any orders against

7 sovereign states, including their own final judgements.

8 The Prosecutor seeks to avoid this fundamental limit on

9 the Tribunal's authority by seeking to sanction Croatian

10 government officials as individuals. This too must

11 fail. The Tribunal does not have general jurisdiction

12 over individual citizens of Croatia or any other state.

13 Under Article 6 and 7 the Tribunal's jurisdiction over

14 national persons is limited by the Statute, and extends

15 only to individuals accused of planning, instigating,

16 ordering, committing, aiding or abetting a crime within

17 the Tribunal's competence.

18 Under the Tribunal's Rules of Procedure and

19 Evidence the Prosecutor has also asserted jurisdiction

20 over individual witnesses. Rule 77, which the

21 Prosecutor cites for support, allows the Trial Chamber

22 to hold a witness who refuses or fails contumaciously to

23 answer a question relevant to the issue before the

24 Chamber in contempt and to fine that individual up to

25 $10.000 or impose a term of imprisonment not exceeding 6

Page 277

1 months. Persons who attempt to interfere with or

2 intimidate witnesses may also be held if contempt.

3 However, the Croatian government officials the

4 Prosecutor seeks to sanction are not contumacious

5 witnesses. The Prosecutor seeks to sanction those

6 individuals because they are the government officials

7 she assumes have custody and control of the documents

8 she desires.

9 She is not saying those individuals are seized of

10 information based upon their own personal knowledge

11 necessary for the prosecution at that time. Indeed, she

12 has adduced no evidence they are either in possession of

13 the documents she seeks or they have the authority to

14 comply with her request or that they would be in a

15 position to incur penalties under national law for doing

16 so.

17 She has arbitrarily identified them to serve

18 essentially as hostages to force the Croatian Government

19 to comply with her demand. Indeed, if sanctioning

20 government officials in this manner is upheld as

21 appropriate by the Tribunal it would de facto circumvent

22 its well-understood lack of power to sanction states for

23 non-compliance. Neither the Tribunal's Statutes nor

24 Rules of Procedure and Evidence allow for such sanctions

25 and the Tribunal should reject the Prosecutor's attempt

Page 278

1 to misuse those provisions in this case.

2 Accordingly under the Tribunal's Statute and Rules

3 of Procedure and Evidence it has no authority to direct

4 a subpoena duces tecum to a state and no state or its

5 officials may be sanctioned for failing to comply with

6 such an order. The Tribunal should make it clear that

7 it has no plans and indeed no authority to seek such a

8 radical departure from the ordinary practice and

9 procedure of international law and international

10 tribunals. Thank you.

11 JUDGE JAN: Can the state which has undertaken to cooperate

12 with the Tribunal decline to comply with the process

13 issued by the Tribunal just because it disputes the form

14 of the process, that instead of being an order it is a

15 subpoena?


17 JUDGE JAN: Why? It is a process, whether you call it a

18 subpoena or you call it an order. As I understand, the

19 states are under an obligation to comply with the order.

20 MS BARAGONA: Respectfully, your Honour, we feel that a

21 subpoena duces tecum issued to a sovereign state with a

22 threat of sanction to its high officials is ultra vires

23 for this Tribunal. We do not accept -- you call it

24 order, we call it subpoena; let us just get on with it.

25 We consider this a very fundamental, technical legal

Page 279

1 process, which is unacceptable and disallowed in the

2 international context -- international law context. As

3 I pointed out earlier, Croatia is complying and

4 assisting with a request -- cooperating and assisting

5 with a request for information. As the particular

6 documents that are being requested are being requested

7 with specificity, Croatia is at this very time

8 cooperating and assisting. It may not seem important to

9 some persons whether it is called an order or a

10 subpoena, but in this area of international law it is

11 creating the type of precedent that is ripe for misuse

12 and misinterpretation in the future.

13 JUDGE JAN: So it is a question of form that you are

14 disputing? It is basically the form that you are -- the

15 form of the process that you are disputing?

16 MS BARAGONA: Yes, your Honour.

17 JUDGE JAN: Another question I want to ask: can a state

18 refuse to provide a document -- can a state refuse to

19 give a document to the Tribunal which has material

20 bearing on a case just for the reason -- because it will

21 infringe some state secret? Can it withhold material

22 evidence on that ground?

23 MS BARAGONA: Yes, your Honour, and if the Tribunal feels

24 that this is somehow rising to the level of failing to

25 cooperate and assist, the Tribunal has the means

Page 280

1 available to it to go to the Security Council.

2 In addition, I respectfully submit that the

3 Tribunal at any time has the power to go to the Security

4 Council and request this power. If the Security Council

5 were to give this power to the Tribunal, we would not be

6 here arguing. Our point is simply that today in this

7 proceeding in these circumstances where we stand at the

8 international practice of law it is ultra vires for this

9 Tribunal to issue this tool of process against a

10 sovereign state or to issue it against its individual

11 high officials in their official capacity with a threat

12 of sanctions.

13 JUDGE JAN: The Security Council has the power I think

14 under Chapter 7 probably to take measures to restore

15 international peace and order. While taking those

16 measures, it must respect the sovereignty of the States

17 involved, is a power of the Security Council in taking

18 these measures, subject to the state sovereignties.

19 MS BARAGONA: The individual sovereign states have waived

20 their claims for sovereignty in certain respects vis a

21 vis the Security Council. Your Honour, we are not

22 trying to argue that the Security Council is limited.

23 What we are saying is that this Tribunal, which is a

24 subsidiary organisation, does not have the same power

25 vested in the Security Council. It does not prohibit

Page 281

1 this Tribunal from requesting such power through its

2 founding body. It is only that such action has not been

3 taken at this time and such power by this Tribunal does

4 not currently exist.

5 JUDGE JAN: This Tribunal is really a mirror of that

6 Security Council?

7 MS BARAGONA: I am sorry?

8 JUDGE JAN: The creation of this Tribunal Council is really

9 a mirror of the Security Council. I got mixed up. This

10 Tribunal is really a measure of the Security Council

11 taken for the restoration of peace and national order.

12 MS BARAGONA: Yes, it is a measure.

13 JUDGE JAN: So does it not have all the power the Security

14 Council possesses?

15 MS BARAGONA: No, your Honour. I would respectfully submit

16 that is a rather large leap and, by analogy, because one

17 is empowered to engage in certain activities does not

18 mean that you then immediately assume all the

19 characteristics of the empowering institution.

20 It actually would have been interesting had you

21 said it is a mirror, but it is not. It is not a mirror

22 of the Security Council, and it is only one measure, one

23 manifestation of the exercise of the Security Council's

24 power. The Security Council can do many things that

25 this Tribunal is not empowered to do. This Tribunal has

Page 282

1 no police power, but the Security Council does. The

2 Security Council has the authority to declare military

3 action against an outlaw member state. Your Honour, I

4 do not think anyone would believe that this Tribunal has

5 the same power, but under the reasoning you have just

6 proposed, if you have all the powers of the Security

7 Council, you would have indeed all the powers which this

8 Tribunal does not have.

9 JUDGE JAN: I do not go to that extent, but all the powers

10 necessary to make an effective institution, all the

11 powers to make it an effective institution?

12 MS BARAGONA: Perhaps, your Honour, this particular power is

13 not necessarily -- is not necessary for the

14 effectiveness. The power -- again we are very limited

15 -- the power to issue a subpoena duces tecum against a

16 state -- you have many other powers at your disposal.

17 It is this one particular power and the extent of that

18 power to high government officials with the threat of

19 sanctions which we feel is ultra vires.

20 JUDGE McDONALD: Do we have the power to compel the

21 attendance of witnesses under Article 29?

22 MS BARAGONA: Yes, but in that you also have to appeal to

23 the cooperation and assistance of the member states,

24 because you do not have a police power to go in and get

25 those witnesses.

Page 283

1 JUDGE McDONALD: So we would then issue a subpoena ad

2 test -- help me we would issue that subpoena to the

3 state to compel the witness.

4 MS BARAGONA: No. It is to individuals, witnesses, persons

5 in their individual personal capacities.

6 JUDGE McDONALD: So we have the power under Article 29 to

7 issue a subpoena ad testificatum to individual persons

8 or witnesses --

9 MS BARAGONA: Natural persons in their personal capacity.

10 JUDGE McDONALD: But not their official capacity?

11 MS BARAGONA: No, your Honour, because that is -- it is a

12 back door method of trying to accomplish what is not

13 available. It is a means of circumventing the inability

14 to sanction the state. The only reason this high

15 official would be -- if the only reason this high

16 official is being sought to appear before the court is

17 in his official capacity, then the Tribunal does not

18 have jurisdiction over that person.

19 JUDGE McDONALD: Let us suppose we assumed that an official

20 in his official capacity was withholding documents

21 because -- that his withholding of the documents

22 constituted participation in the offence and that we

23 therefore considered that he at the very least was a

24 suspect. Would we not have the authority to issue an

25 arrest warrant for such a party?

Page 284

1 MS BARAGONA: For him as a suspect?

2 JUDGE McDONALD: Suspecting that he by withholding

3 documents was aiding and abetting the commission of a

4 crime?

5 MS BARAGONA: Would you be asserting, your Honour, that he

6 had a right to steal documents from a government, that

7 he had the right to illegally take those documents from

8 a government, because basically that is what is being

9 proposed? If he is not allowed in his official capacity

10 to give those documents over, is the Tribunal asking

11 that he stale them and bring them to you?

12 JUDGE McDONALD: Well, we have -- we are getting into the

13 substantive offences, but in terms of command

14 responsibility or even obedience to orders of superiors,

15 if we concluded that such an individual by -- I just

16 thought of this, so this may be rather --

17 MS BARAGONA: I am just thinking of my answer too.

18 JUDGE McDONALD: -- not bizarre, but just thinking out

19 loud, if we concluded that he, by obeying superior

20 orders, that is the directions of the President, or

21 whoever is the superior executive authority in the state

22 -- that by obeying those orders and not complying with

23 a subpoena, then he in a sense was aiding and abetting

24 the commission of a crime, could we not, therefore,

25 issue an arrest warrant for him as a suspect?

Page 285

1 MS BARAGONA: Your Honour, I think that he has to be -- have

2 aided and abetted in a crime of a different type, not a

3 crime of a failure to produce documents.

4 JUDGE McDONALD: No, I am not suggesting that. That is

5 serious but that is not quite as serious as our

6 substantive offences, but you could aid and abet before

7 the commission or you could aid and abet --

8 MS BARAGONA: By now protecting in that situation.


10 MS BARAGONA: If the Prosecutor truly felt that an

11 individual in that circumstance in his personal

12 capacity, even if he were trying to hide behind the

13 cloak of government protection or state immunity, is

14 indeed a suspect or someone subject to the criminal

15 jurisdiction of this court, the Prosecutor should issue

16 a subpoena --

17 JUDGE McDONALD: An arrest warrant.

18 MS BARAGONA: For that individual person. That is a

19 different situation than what we are talking about.

20 MR RIVKIN: Your Honour, if I may be permitted to enlarge

21 for one second?

22 JUDGE McDONALD: It is just a hypothetical thought just

23 came into my mind. You will have an opportunity.

24 Go ahead. Please. Finish up.

25 MS BARAGONA: Just there is not a restriction on the

Page 286

1 Prosecutor where she justifiably believes in good faith

2 that this person would also qualify as a suspect under

3 -- a suspect subject to the jurisdiction of this

4 Tribunal, that she could not issue an arrest warrant or

5 compel the appearance of that person. It does not mean

6 that when that person appears that perhaps the same

7 issues might not arise again, because then the burden

8 would be on the Prosecutor to prove that it is in the

9 individual's personal capacity not merely his position

10 as a high official without personal knowledge that she

11 is seeking to have this person before the Tribunal, but

12 those are issues that would have to be looked at after

13 the Prosecutor made a request for such a person to come

14 forward.

15 JUDGE McDONALD: Thank you.

16 Mr Josipovic.

17 Presentation by MR JOSIPOVIC.

18 MR JOSIPOVIC: I have not going to take too long. I am

19 going to take advantage of such excellent translators

20 and express myself in my own language.

21 First of all, I think we have to establish with

22 clarity that the purpose of today's hearing is not to

23 establish which are the competencies that the Tribunal

24 should have, but rather which it actually has according

25 to the Statute and international law. The Prosecutor

Page 287

1 said a number of times that there was fear of

2 inefficiency of the Tribunal and that the measures at

3 the disposal of the prosecution and the Trial Chamber

4 were not sufficient. He cited, in fact, that a subpoena

5 was one of those measures that would be welcome to the

6 Tribunal, and I believe that, but I allege that,

7 unfortunately, or maybe fortunately -- it depends on the

8 point of view -- the Tribunal does not have some

9 competencies. It does not have them because such a

10 measure has not been envisioned by the Statute of the

11 Tribunal, nor by international law.

12 It should be pointed out once again that the

13 Republic of Croatia, like other states, has never for a

14 moment called in question its duty to cooperate with the

15 Tribunal and to carry out the Tribunal's orders. This

16 is best testified to by the situation in which the

17 Republic of Croatia, after the subpoena was suspended,

18 and re-named into a request for cooperation or an order,

19 did provide services to the Tribunal and started to

20 supply the Tribunal with the documents requested of it.

21 The question whether a subpoena should be issued

22 or not is not merely a technical issue. In that case it

23 would not be matter whether we call it an order, a

24 subpoena, a warrant or a request. It is an extremely

25 important question of international criminal law and

Page 288

1 I would be so bold as to say of the general world order.

2 The road which could result in the prosecution and

3 the Trial Chambers having at their disposal a measure

4 called subpoena is a simple one. It simply needs to be

5 introduced into international law, and the only proper

6 way of doing that is for the Prosecution or the Tribunal

7 to address the Security Council, and I am quite

8 confident that if the Security Council considers it to

9 be necessary for the efficiency of the Tribunal, it will

10 introduce such a measure.

11 The worst thing that could happen to this

12 Tribunal, in my view, and to the development of

13 international criminal law would be for a doubtful

14 measure which is not rooted in the Statute, nor in the

15 totality of practice so far of all known international

16 courts to be introduced in the practice of international

17 law somehow in an underhanded manner.

18 As an argument that a subpoena does not exist

19 against a sovereign state or high state officials, it

20 was noted that there was no poena, no penalty, which are

21 envisaged by the Rules of Procedure and Evidence.

22 If only that were the reason, then it would be

23 easy to find a solution to it. The Tribunal would

24 retreat; it would pass amendments to the Rules of

25 Procedure and Evidence; it would introduce such a

Page 289

1 measure and the problem would be resolved.

2 But, of course, that is not possible. Just as my

3 distinguished colleague and the Ambassador noted in his

4 introductory statement, the Rules of Procedure and

5 Evidence may only elaborate and provide in greater

6 detail the basic principles contained in the Statute and

7 international law.

8 Instead of the Prosecutor suggesting to the

9 Tribunal the only possible correct procedure to follow

10 and that is addressing the Security Council and

11 requesting competencies to issue subpoenas, the

12 Prosecutor has chosen a different and less rewarding

13 way.

14 I can understand that -- it is very difficult to

15 try to prove something that does not exist, and the

16 Prosecutor in her detailed and extensive brief chose two

17 methods, which should not be the rule in the future work

18 of the Tribunal, and in the future practice of

19 international criminal law. The first method is a

20 method of a smoke screen. The Prosecutor presented a

21 number of allegations, which are quite correct. By way

22 of example, she spoke in detail about the formation and

23 tasks of the Tribunal, about its rights to issue orders,

24 about the duties of states to cooperate with the

25 Tribunal, and the Republic of Croatian fully endorses

Page 290

1 those allegations of the Prosecutor.

2 However, those unquestionable states are merely a

3 smokescreen to conceal something that is legally

4 unacceptable, probably in the hope that the Chamber or

5 international public opinion -- and let us not question

6 the fact that international public opinion is following

7 this debate with great attention -- that by accepting

8 the unquestionable assertions of the Prosecutor, it will

9 also accept those that are doubtful and disputable and

10 for which the Prosecutor has not provided a single valid

11 argument.

12 I should like to draw to the attention of the

13 Chamber that the Prosecutor has not given a single

14 example of any court of an international nature

15 expressly mentioning a subpoena or using it either

16 against the sovereign state or against an individual, a

17 high official of that state, not one.

18 A second method that the Prosecutor has used was

19 incomplete or incorrect reference to certain sources,

20 starting from the fact that the Appeals Chamber in the

21 case of Tadic, which has nothing to do with the question

22 of issuance of a subpoena, for example the competence,

23 competence problem, or the interpretation of Article 3

24 of the Statute, without any firm logical connection was

25 applied to the competence of the court to issue

Page 291

1 subpoenas.

2 Furthermore, the Prosecutor referred to numerous

3 provisions of national laws and probably underestimated

4 those reading her brief, believing that perhaps nobody

5 would verify these assertions. I will read for you only

6 one, but I think a very eloquent example.

7 The Prosecutor, among the numerous national

8 legislations, also makes reference to German law, the

9 Straf Prozess law -- Ordnung. She says in numerous

10 provisions in paragraphs 48, 94-96 and 98 apparently

11 they support the subpoena, but Article 96 reads:

12 "Authorities and public figures may not be

13 required to produce or to surrender files or other

14 documents in their official custody if the supreme

15 authority in their official agency declares that it

16 would be detrimental to the welfare of the Federal

17 Republic or a German state if the contents of such files

18 or documents became known."

19 I cannot understand that anybody could interpret

20 this provision as supporting a subpoena against a state

21 and its high officials.

22 I would not like to repeat what has already been

23 said by the previous speakers. I would like to

24 underline, however, that the discussion on a subpoena is

25 not a struggle of opinions amongst states with a common

Page 292

1 law system and those belonging to the system of

2 continental Europe. That is a false dilemma. It is a

3 struggle between two schools which have different views

4 as to whether the Tribunal in performing its noble

5 mission has any limits, whether the Statute and other

6 norms are there merely to enable efficiency of the

7 Tribunal, or are they there also to contain certain

8 guarantee mechanisms not only in relation to the accused

9 but also in relation to the global legal order?

10 We firmly believe that that is the position of the

11 Tribunal. We believe that the Tribunal does not have,

12 nor does it want to have, unlimited competencies, nor

13 does it want anyone sometime in the future to write

14 about this Tribunal as one based on the Star Chamber.

15 Certainly the assertions of the Prosecutor in

16 favour of unequal treatment of states before this

17 Tribunal for punishing individuals not according to

18 explicit norms but by analogy, for the rules of the game

19 to be changed after the match has already begun, and not

20 to apply the generally accepted standards of

21 international law and international criminal law such as

22 nullem crimen nulla pene sine lege certainly do not fit

23 into the view of the Tribunal as the international

24 community expects to have of it.

25 Clearly, and it would be unrealistic to expect

Page 293

1 this Tribunal not to have difficulties in the

2 application of its competencies. There are diverse

3 interests at stake and I appreciate that the positions

4 of certain states may not always be in conformity with

5 what this Tribunal could and should accomplish, but

6 there are mechanisms to deal with that. His Excellency

7 Simonovic and a number of amici curiae and our legal

8 adviser stated very clearly that international law does

9 have mechanisms at his disposal. These may be slow, but

10 they are there, and they guarantee the future of this

11 Tribunal. Thank you, your Honours.

12 JUDGE McDONALD: I note your reference to -- the

13 Prosecutor's reference to jurisdiction, to determine

14 jurisdiction. I think that is a different

15 proposition. I think then the question was whether or

16 not the Trial Chamber and ultimately the Appeals Chamber

17 had power to determine whether the Tribunal was legally

18 established.


20 JUDGE McDONALD: I think that is true. I refer to the

21 Germany Statute; does it not at least recognise the

22 power to issue a subpoena to a state, albeit the power

23 of a state or the right of a state to not comply because

24 of its national interest; no?

25 MR JOSIPOVIC: As I read it, the cited provisions of German

Page 294

1 law refer to what existed in all laws, and that is the

2 right to determine -- to search the conditions for such

3 procedures and the limits. There is certainly not a

4 single punitive procedure in the world which would not

5 envisage such a possibility. The only problem is in

6 what way and whether this can be applied at all to this

7 Tribunal.

8 JUDGE McDONALD: The reference to the need for

9 effectiveness, that was where the Appeals Chamber was

10 discussing its view of Article 3?


12 JUDGE McDONALD: Extending it to international conflicts as

13 well as internal, as it had been so limited in the

14 past?


16 JUDGE McDONALD: But are you saying that the Tribunal lacks

17 the authority to issue an order that must be complied

18 with?

19 MR JOSIPOVIC: No, no.

20 JUDGE McDONALD: You are simply saying that we may not --

21 the Tribunal may not exercise the penalty. Instead, we

22 must report non-compliance to the Security Council?

23 MR JOSIPOVIC: My position is that the Tribunal may issue

24 orders, that states are duty bound to comply, but that

25 the Tribunal does not have the possibility to determine

Page 295

1 the sanction itself.

2 JUDGE McDONALD: Is a determination, though, that a state

3 has not complied with its obligation itself a

4 sanction? . Does the Corfu Channel case not stand for

5 that proposition and another case that was dealing with,

6 I thought, a decision of the ICJ?

7 MR JOSIPOVIC: I believe that the position of this Tribunal

8 with respect to the realisation of its goals is stronger

9 than of the neighbouring court here regarding the Corfu

10 Channel case. I think that this Tribunal may do

11 something that is quite obvious, and that is to draw the

12 attention of the Security Council to the fact that a

13 state is not complying, and the Security Council has a

14 broad range of measures from warnings to various types

15 of sanctions that it may enforce against a state.

16 JUDGE McDONALD: Thank you, very much, Mr Josopovic. Let

17 us see.

18 Mr Rivkin?

19 Submission by MR RIVKIN

20 MR RIVKIN: Your Honour, if it may please the court, it is

21 our preference to go with our rebuttal argument last, of

22 course, if that meets with your approval.

23 JUDGE McDONALD: Are you saying that you have nothing to

24 offer by way of direct?


Page 296

1 JUDGE McDONALD: Has everything been said and you wish to

2 respond to the Prosecution's rebuttal. You may do that,

3 if you wish.

4 MR RIVKIN: We prefer to proceed with closing argument in

5 rebuttal format, if your Honour does not object.

6 JUDGE McDONALD: That is acceptable except I think we can

7 accomplish that today. The Prosecutor was correct when

8 she said yesterday that it is Croatia that has

9 challenged the subpoena and thus is really the moving

10 party, but we are relaxing, I suppose, the rules. So

11 you need not present it at this time. We will hear from

12 -- I think we will hear from the remaining amici.

13 MR RIVKIN: We thank you your Honour. If I may just beg

14 your indulgence for one second, I do not want to get it

15 in the rebuttal argument, because I want to give a

16 slight embellishment to the answer by my colleague to

17 your hypothetical question.

18 I think it is very important to realise as a

19 matter of international law no official exercising his

20 official duties in the conduct of which is otherwise

21 perfectly appropriate can be sanctioned for it. I think

22 the Nuremberg principle to which your Honour referred on

23 a couple of occasions stands for the proposition on

24 following orders and engaging in unlawful conduct is no

25 defence, but it certainly would be, I would argue, a

Page 297

1 travesty of any international and domestic law to hold

2 somebody whose actions are otherwise totally legitimate

3 and proper -- to hold that person personally responsible

4 under any theory, whether it be a contumacious witness

5 or an aiding and abetting theory, which is very

6 different from a situation where that individual, no

7 matter what his government rank may be, was personally

8 involved in aiding and abetting whether before or after

9 the fact. I guess my point is that following and

10 exercising ones legitimate duties per se cannot be a

11 conduct that gives rise to any penalty, be it a conduct

12 that occurred before or after an offence in issue.

13 JUDGE McDONALD: Thank you. I think we will hear now from

14 -- thank you.

15 Miss Vidovic, I have just -- I was just ready to

16 proceed past you. I apologise. You may proceed and

17 then we will hear from Miss Glumac.

18 Presentation by MADAME VIDOVIC.

19 MME VIDOVIC: Your Honours, Bosnia and Herzegovina in

20 respect of the power of a judge or trial chamber of the

21 International Criminal Tribunal for the former

22 Yugoslavia to issue a subpoena duces tecum to a

23 sovereign state and to its high government officials and

24 apply appropriate remedies in the case of non-compliance

25 with the subpoena takes the following stand.

Page 298

1 Based on provisions of the Statute of the

2 International Criminal Tribunal for the former

3 Yugoslavia, it is not just a manifestation of the

4 Security Council, as was quoted today, but it is an

5 International Criminal Tribunal for the former

6 Yugoslavia established to try serious violations of the

7 international humanitarian law. Based on the Statute of

8 above all Article 18, paragraph 2, which says that in

9 carrying out the investigation, the prosecution may, as

10 appropriate, seek the assistance of the state

11 authorities concerned, then Article 19, paragraph 2,

12 which says that upon confirmation of an indictment, the

13 judge may, at the request of the Prosecutor, issue such

14 orders and warrants for the arrest, detention, surrender

15 or transfer of persons and any other orders as may be

16 required for the conduct of the trial.

17 We do not see limitations as to the kinds of

18 orders in the Statute of the Criminal Tribunal, and also

19 in Article 29, paragraphs 1 and 2, which says that

20 states shall cooperate with the International Criminal

21 Tribunal, and also that states shall comply without

22 undue delay with any request for assistance or order

23 where, among other things, production of evidence is

24 explicitly stated.

25 We also think that the other provisions are fairly

Page 299

1 clear, and that the rules that provide enough competence

2 of the Tribunal to communicate with other states as, for

3 instance, Rule 39, 2, 3 and 4, which states that in the

4 conduct of an investigation the Prosecutor may seek the

5 assistance of any state authority concerned, and then

6 the Rule 54, which says that, at the request of either

7 party or in the first instance Trial Chamber, a judge or

8 Trial Chamber may issue such orders that may be

9 necessary for the purpose of an investigation or for the

10 preparation or conduct of the trial. In other words, we

11 believe that it is inherent to the Tribunal to decide

12 which kinds of orders it will issue and not the state

13 parties.

14 In order to produce evidence and conduct the trial

15 proceedings, a judge or a trial chamber of the

16 International Criminal Tribunal for the former

17 Yugoslavia has the power to direct a request or subpoena

18 to any government official regardless of his rank. As

19 to avoid repetition, because I would state briefly that

20 I accept all the arguments presented by the Prosecutor

21 in respect of application of the international and

22 criminal law, nonetheless, when Bosnia-Herzegovina is

23 concerned, I am obliged to present certain facts that

24 were only touched upon in yesterday's discussion.

25 I am aware that the matters that we are discussing

Page 300

1 here today are just some theoretical issues regarding

2 the power of a judge or the Criminal Tribunal for the

3 former Yugoslavia to issue a subpoena, which

4 non-compliance seeks appropriate remedies. I have to

5 underline that both the state of Bosnia-Herzegovina as

6 well as Croatia are the states originating from the

7 former Yugoslavia and the territorial jurisdiction of

8 the International Criminal Tribunal extends to that

9 territory.

10 The whole issue that we are discussing here today

11 are all bound exclusive to the territory of the former

12 Yugoslavia, so both these states have a very specific

13 role in relationship to the other sovereign states. As

14 republics originating from the territory of the former

15 Yugoslavia and in accordance with the Resolution 827 of

16 the UN Security Council, are obliged to cooperate with

17 the International Criminal Tribunal and other sovereign

18 states.

19 I am stressing here that the states originating

20 from the former Yugoslavia, the newly formed states, are

21 obliged to broadly cooperate with other sovereign

22 states. They are also obliged in such a cooperation as

23 signatories on the peace accord on Bosnia-Herzegovina,

24 which is also known as the Dayton Peace Accord.

25 Accordingly, all signatories of this agreement are

Page 301

1 obliged to full cooperation in investigation and

2 prosecution of persons responsible for committing war

3 crimes and other serious violations of international

4 humanitarian law.

5 Furthermore, since this is the cooperation with

6 the International Criminal Tribunal, it becomes clear

7 that this cooperation has to be conducted based on rules

8 by an international criminal tribunal and not any state

9 legislation. Based on the Dayton agreements, they were

10 obliged to adjust their legislations so that the full

11 cooperation with the International Criminal Tribunal

12 would be made possible and Bosnia-Herzegovina complied

13 with that.

14 As far as Bosnia-Herzegovina is concerned, its

15 obligation to fully cooperate with the International

16 Criminal Tribunal is established even by the

17 constitution of Bosnia-Herzegovina, being the highest

18 legal act of the state, namely according to Article 2,

19 paragraph 8, of the Constitution of Bosnia-Herzegovina

20 -- not only is the state obliged to cooperate with the

21 International Criminal Tribunal, but also with all its

22 relevant authorities. I quote the relevant provision:

23 "All relevant authorities of Bosnia-Herzegovina

24 shall cooperate and provide unrestricted access to

25 evidence for the needs of the International Criminal

Page 302

1 Tribunal for the former Yugoslavia. They are

2 particularly obliged to comply with orders issued in

3 accordance with Article 29 of the Statute of the ICTY."

4 Therefore, we consider that subpoenas duces tecum

5 can be issued to the state of Bosnia-Herzegovina as well

6 as any authority within Bosnia-Herzegovina, i.e. to an

7 official that represents that authority or with respect

8 to its commitment to full cooperation.

9 That does not just mean territory but for all the

10 officials who are in certain positions in those

11 respective governments. That means that the ICTY has

12 the right to issue orders and subpoenas to other

13 governments and other governmental bodies in order to

14 conduct its investigations.

15 Taking a stand that the judge or the Trial Chamber

16 of ICTY has no power to issue a subpoena to sovereign

17 states who are in possession of evidence relevant for

18 the conducting of an investigation or a trial would mean

19 that the Tribunal would not be able to accomplish the

20 goal it was established for, that is to prosecute all

21 persons responsible for serious violations of

22 international humanitarian law. This would also mean

23 that these states, especially the ones from the former

24 Yugoslavia, which have been parties to the conflict in

25 one measure or another -- if the state and its

Page 303

1 representatives are simply not willing to hand over such

2 evidence, persons responsible for these violations would

3 not be -- would never be brought to justice.

4 This would be contrary to the idea expressed in

5 the Resolution of the UN Security Council, for which the

6 International Criminal Tribunal has been established,

7 and which has been to a significant extent put at stake

8 by the non-existence of a mechanism which would enable

9 the Tribunal to bring the persons indicted to trial.

10 I fully accept the Prosecutor's position in part 6

11 of the brief regarding the appropriate remedies to be

12 taken by the International Criminal Tribunal in the case

13 of non-compliance with subpoena duces tecum issued to

14 such a sovereign state.

15 When Bosnia-Herzegovina is concerned, and I stress

16 its obligation full cooperation, I would add the

17 following. If an actual person to whom the subpoena

18 duces tecum was directed for some reasons that may not

19 be justified does not appear before the Tribunal and the

20 International Criminal Tribunal for former Yugoslavia in

21 exercise of its powers under Article 29.2 under the

22 Statute of ICTY issues an appropriate order to the state

23 authorities of Bosnia-Herzegovina by which issuance the

24 presence of the person directed is requested, then the

25 state authorities of Bosnia-Herzegovina are obliged to

Page 304

1 act under such order. Otherwise it would present a

2 violation of its cooperation to cooperate with the

3 Tribunal and to comply with its order and in that case

4 the Tribunal would have the right to inform the Security

5 Council about this.

6 Thank you.

7 JUDGE McDONALD: You indicated that you are supporting the

8 Prosecutor in part 6 of its brief, where it speaks to

9 remedies, so I gather then it is your position that the

10 Tribunal lacks the power to impose any penalties against

11 a state for non-compliance with a subpoena. Is that

12 your position?


14 JUDGE McDONALD: But that the Tribunal does have authority

15 to impose -- issue a subpoena and impose a penalty

16 against an individual in his official capacity if he

17 fails to comply with a subpoena; is that correct?

18 MME VIDOVIC: Yes, that is correct, to which I added -- I do

19 not know if it was properly understood -- that the

20 International Criminal Tribunal can request through its

21 orders to fulfil its requests. In other words, if a

22 state has an obligation to bring -- to produce a

23 suspect if such a person is asked by the Tribunal

24 through its order.

25 JUDGE McDONALD: So would then the Tribunal have to issue

Page 305

1 its order finding an individual in contempt and

2 directing that individual to appear before the Tribunal

3 to show cause why it should not be held in contempt;

4 that order then should be sent to the state for its

5 execution?

6 MME VIDOVIC: No. That was not -- you did not understand

7 me properly. I was talking about something else. It is

8 about making sure that a person appears before the

9 Tribunal. If there are political or other reasons for

10 it not to do that, then there are measures against the

11 state and the measures that you just mentioned, which

12 means the contempt of court and then the rules from the

13 Statute are applicable as cited by the Prosecutor.

14 JUDGE McDONALD: Would the Tribunal have the authority to

15 find a high governmental official -- whatever "high

16 governmental official" means, but a governmental

17 official -- in contempt and impose the penalty that is

18 contained in our rules of a maximum of US$ 10.000 and/or

19 six-month term of imprisonment? Would the Tribunal have

20 the authority to impose that penalty against such an

21 official if that official was not before the Tribunal,

22 not present before the Tribunal?

23 MME VIDOVIC: Yes, they would.

24 JUDGE McDONALD: And the Tribunal would not have to rely on

25 the authorities of the state to execute such an order.

Page 306

1 MME VIDOVIC: In case a state does not fulfil -- answer to

2 this order -- for instance, if it cannot objectively be

3 done, as was the case here, or it does not want to, then

4 the Tribunal should not rely on the authority of the

5 state.

6 JUDGE JAN: We were informed that the Croatian Government

7 has nominated a person for the purpose of cooperation of

8 the Tribunal. Has the government of Bosnia-Herzegovina

9 also done the same?

10 A. Yes, it has.

11 JUDGE JAN: Can you tell us --

12 THE INTERPRETER: Microphone, your Honour, please.

13 JUDGE JAN: Can you please tell us that authority for the

14 purpose of the record? Perhaps I have not been able to

15 make myself clear.

16 MME VIDOVIC: Yes. I am the representative. I am Vasvija

17 Vidovic, representative of the Embassy of

18 Bosnia-Herzegovina in The Hague.

19 JUDGE JAN: Thank you.

20 JUDGE McDONALD: Thank you, Miss Vidovic.

21 Mr Rivkin, are you available with us?

22 Miss Glumac, how long will you need for your

23 presentation?

24 MS GRUMAC: I think a minute and a half.

25 JUDGE McDONALD: Very good. You may proceed.

Page 307

1 JUDGE JAN: You may have two minutes.

2 MS GRUMAC: I can do it from this place because I really do

3 not need any paper: I will be very short.

4 Your Honours, I should like to say after all that

5 we have heard in the past two days that I fully see the

6 arguments presented by the Croatian delegation, that is

7 by the Croatian representatives, because in my opinion

8 their arguments were thorough and detailed and

9 well-founded.

10 I would now like to refer only to what has been

11 said by Mme Vidovic, because I think I really have

12 nothing new to add regarding the subpoenas the

13 possibility to issue subpoenas and all that, because

14 I have already said in my brief that I think that the

15 Tribunal does not have the right to issue a subpoena to

16 a state or state officials.

17 Therefore, as a comment to what has been said by

18 Mme Vidovic, I would say in reference to what she said

19 that in the Constitution of Bosnia-Herzegovina there is

20 a provision allowing the Tribunal to communicate

21 directly with persons from which certain information or

22 data is required, or to which any subpoena or order or

23 any other request is addressed.

24 I believe that that provision does not change in

25 any way the status of the Tribunal in relation to that

Page 308

1 person, because I think there are no legal grounds for

2 issuing a subpoena. The fact that such a provision

3 exists in the Constitution of Bosnia-Herzegovina can

4 only give that country the right according to its own

5 domestic law to sanction the person that it finds not to

6 have complied with the order of the Tribunal.

7 Therefore, whether this will be a sanction of a

8 political nature, a penal sanction or not, I do not

9 know, but I think that a subpoena addressed to such a

10 person is not possible. Since non-compliance of a

11 subpoena is not sanctioned in the Statute or the Rules

12 of Procedure, therefore I think a subpoena cannot be

13 sanctioned, or rather non-compliance with a subpoena

14 cannot be sanctioned by this Tribunal, because, as has

15 been stated repeatedly, and in particular yesterday by

16 several amici yesterday, from Professors Pellet,

17 Malanczuk, Zimmermann, Condorelli, who said that Rule 77

18 from the Rules of Procedure and Evidence cannot apply to

19 people not complying with the subpoena. This is an

20 institute that exclusively applies to witness

21 non-compliance, and not non-compliance in the collection

22 of evidence.

23 I would also challenge the claims of the

24 Prosecutor when she said that in the case of

25 non-compliance with a subpoena it is possible to apply

Page 309

1 the provisions of Rule 19, that is to issue an arrest

2 warrant, and this is something that I consider not to be

3 correct, because in this case the person is called the

4 accused.

5 That is all I would have to say as a comment.

6 JUDGE McDONALD: In one of the briefs submitted by the

7 amici curiae -- I do not remember which one -- the

8 writer said that he had -- or she had -- reviewed the

9 legislation of Bosnia-Herzegovina and had concluded that

10 the President had the authority to direct ante Jelanic

11 to comply with the subpoena. Did you see that amicus

12 brief.

13 MS GLUMAC: I saw it but testimonies not according to --

14 JUDGE McDONALD: Correct.

15 MS GLUMAC: It does not apply to the law of

16 Bosnia-Herzegovina, the criminal law of

17 Bosnia-Herzegovina, as far as I know. I think that

18 there we do not find that provision. There is no such

19 criminal act of non-compliance with the orders of the

20 Tribunal.

21 JUDGE McDONALD: I think this amicus was speaking to the

22 issue of whether or not Mr Jelanic has been instructed

23 to appear -- provide the documents, by the proper

24 authority. That amicus took the position that the

25 proper authority had so instructed him.

Page 310

1 MS GLUMAC: Because you consider the proper authority to

2 have been the Prime Minister; is that what you had in

3 mind?

4 JUDGE McDONALD: I will locate the brief and make you aware

5 of it.

6 MS GLUMAC: Because in that case we consider the Prime

7 Minister not to be the person to give him orders where

8 and when to appear, which we have already discussed,

9 because I feel it is the duty of the Presidency of the

10 Republic and not the Prime Minister.

11 JUDGE McDONALD: Very good. Thank you very much.

12 We will, when we return after our lunch break,

13 hear from the amici, I think, Mr Ljubanovic. We will

14 hear from you after -- when we return at 2.30 and then

15 we will hear from Miss Wedgwood and that will conclude

16 then the submissions of the amici and then we will hear

17 from the Prosecutor. So we will stand in recess until

18 2.30.

19 (1.10pm)

20 (Luncheon Adjournment)

21 (2.30pm)

22 JUDGE McDONALD: We will now hear from Mr Ljubanovic,

23 please.

24 Presentation by MR LJUBANOVIC

25 MR LJUBANOVIC: Your Honours, thank you. I am ready and

Page 311

1 willing to answer any questions that you may have, but

2 I would like to ask you to allow me to say a few more

3 words about something that is not contained in our

4 amicus curiae brief.

5 JUDGE McDONALD: You have been with us for two days now and

6 so I believe that you deserve some special allowances,

7 so you may go ahead.

8 MR LJUBANOVIC: Thank you. Yesterday's statements by the

9 amicus curiae showed that with respect to certain

10 important issues having to do with the application of

11 the institutes of subpoena duces tecum in relation to

12 states and state officials, there appears virtually to

13 be a consensus. It was thus noted that there are no

14 sanctions on the part of the Tribunal towards a state

15 for non-compliance with a subpoena duces tecum.

16 This was a position that was accepted by the

17 distinguished Prosecutor. I would add that if there is

18 no penalty, there is no subpoena, because subpoena means

19 "under penalty", and without a penalty, that is an

20 empty threat, as His Honour has noted; then what

21 remains, what we find in the UN Resolution 827 and in

22 Article 29.2 of the Statute, which says that states are

23 obliged to comply with all requests for cooperation and

24 orders of the Tribunal, but such unity of view was not

25 achieved with respect to the possibility of issuing a

Page 312

1 subpoena duces tecum towards state officials and

2 individuals and with respect to the sanctioning of those

3 officials for not complying with the subpoena.

4 But a number of the amici curiae did take stands

5 which are of significance for this question. Thus, for

6 instance, it was noted that a state official was a state

7 agent, who upholds the position of the state, otherwise

8 he would not be a state agent. Furthermore, that Rule

9 77(A) applies to witnesses. A witness who refuses to

10 answer questions by the Chamber and is thus in contempt

11 of court. Also, as stated by Mr Zimmermann, for

12 instance, the state is entitled to protect its state and

13 national interests, and, as the distinguished President

14 of the Trial Chamber pointed out, the Tribunal has no

15 interest in violating national interests.

16 Finally, it was noted that not in a single legal

17 act, statute or in international law in general is any

18 penalty envisaged if a state official fails to hand in a

19 document, which means that sanctioning such a person

20 would be an offence of the principle of nullem crimen

21 nullem pena. If we were to add to what was stated

22 yesterday that Article 29, paragraph 2, speaks about the

23 cooperation of states and their obligation towards the

24 Tribunal and not of state officials, then the Republic

25 of Croatia in its constitutional law on cooperation of

Page 313

1 Croatia with the International Tribunal has designated

2 that the Government of the Republic of Croatia is the

3 main body for cooperation with the Tribunal. If we add

4 that according to the jurisdictions of continental

5 Europe, tribunals cannot forcefully request documents

6 from the state or state officials; namely they can

7 request it but these may not comply if state interest is

8 at stake. Mr Josipovic read a provision from the German

9 Strafa Prozess Ordnung, and I must say there was a

10 similar provision in Article 102 of the Penal Code of

11 Croatia.

12 An interesting viewpoint was voiced yesterday by

13 Mr Pellet, namely that the Tribunal cannot equate the

14 state and the state official with a person, that it

15 cannot address a minister, that is a state official, but

16 that it may call on him as an individual. This appears

17 to me to be very complicated. In my view such a person

18 may be invited as an individual only if a statement is

19 required on relevant facts which are not related to his

20 ministerial functions. Otherwise, it is impossible to

21 separate such a person from his duties of Minister which

22 he is performing.

23 Finally, I do not know whether from the brief of

24 the amicus curiae the message is clear, the message

25 which the Croatian Association of Criminal Science and

Page 314

1 Practice which I represent here wishes to convey. This

2 Association has close to 700 lawyers in its membership

3 engaging in criminal law either as judges, public

4 prosecutors, defence counsels or university professors.

5 Therefore, I do not know whether this message, this idea

6 which we wish to convey to you is clear from this

7 document, but I will, therefore, say now it is an old

8 idea that a criminal code applies to criminals only and

9 the law on criminal procedure does not take into account

10 the people that are being accused. This speaks to the

11 complexity of legal procedure, of penal procedure.

12 The substance of any penal procedure is to strike

13 a balance between the demands for effectiveness of the

14 penal procedure and the protection of the personal

15 rights of the accused and the rights of the defence.

16 Because the accused may be innocent.

17 However, the procedure before an International

18 Tribunal is even more complicated, because a balance has

19 to be found between the effectiveness of the procedure

20 and measures limiting the rights of sovereign states. If

21 the International Tribunal feels that the proceedings

22 are not effective enough, and that, according to the

23 existing provisions of the Statute and the Rules and

24 international law in general, it does not have at its

25 disposal the necessary body of measures for more

Page 315

1 effective jurisdiction, and this is a problem that was

2 referred to by the distinguished Prosecutor, and

3 I understood her very well, the crucial issue is not of

4 the subpoena because of the penalty, but because of the

5 effectiveness of the proceedings.

6 If that is so, then this very difficult and

7 complicated problem of finding additional measures

8 further to restrict the rights of sovereign states, even

9 subpoena duces tecum, should not be resolved by the

10 Tribunal itself but by the Security Council of the

11 United Nations, but not in the way that was suggested

12 here, that frequently, every week or every month, as

13 Judge McDonald noted, the Trial Chamber should run to

14 the Security Council, but rather that the Council should

15 find a system -- define a system of new measures for the

16 greater effectiveness of the International Tribunal.

17 I fear that an order of the Tribunal to issue a

18 subpoena duces tecum to states and state officials in a

19 situation when, to use a mild term, there are numerous

20 dilemmas, and yesterday's discussion by distinguished,

21 world-renowned law professors showed that this was so,

22 would even further complicate relations between the

23 state and the International Tribunal, and would not

24 contribute to the greater effectiveness of the

25 International Criminal Tribunal, which is the ultimate

Page 316

1 goal and meaning of these debates.

2 JUDGE McDONALD: Do you believe that the Rules that the

3 Tribunal has adopted, Rules 11, 59 and 61, that provide

4 that the President may report to the Security Council

5 non-compliance -- do you believe that those are valid

6 Rules enacted with the authority founded in the

7 Statute?

8 MR LJUBANOVIC: Yes, absolutely so. I think they are valid.

9 JUDGE McDONALD: Is that not a penalty of sorts?

10 MR LJUBANOVIC: Actually, as far as I have been able to

11 gather from the debate this past two days, it appears

12 that the proceedings before the Tribunal are not

13 effective enough, and that the solution is to be found

14 in the Statute and the Rules. Certainly the Statute

15 could not deal with all issues and especially those

16 having to do with the procedure of the court itself.

17 Then the Tribunal was authorised to fill in those gaps

18 with the Rules on Procedure and Evidence, but in spite

19 of those provisions, and one of those is the one you are

20 referring to, this to me seems -- it does not seem to me

21 that there is no possibility for even greater

22 effectiveness.

23 Therefore, I think that we should not try to

24 stretch interpretations of existing Rules, but, rather,

25 that we should not -- that the provisions that exist --

Page 317

1 that the core of measures that exist are not

2 satisfactory and that the Security Council which, as we

3 have already said, has broad-based possibilities of

4 action should take steps to make those proceedings more

5 effective. When I refer to effectiveness, I am implying

6 guarantees that the perpetrator of a crime does not go

7 unpunished, because only then is a trial proceedings

8 effective.

9 JUDGE McDONALD: What I am asking you and what I am

10 suggesting is that from what I understand, from

11 listening to many persons for the last day and a half or

12 so, the word "subpoena" is a term that is unknown in

13 civil law systems, and that at least in common law

14 systems where it is used, or at least in some common law

15 systems, that term is construed in a way so as to

16 provide that it would follow automatically if there is

17 non-compliance with a subpoena, there would follow a

18 criminal and/or -- a criminal penalty and/or a fine.

19 In drafting our Rules of Procedure and Evidence --

20 as you know, we have both civil and common law judges --

21 and we came together and we have drafted something that

22 we are very proud of, but they combine civil and common

23 law concepts. So what I am suggesting is that perhaps

24 the term "subpoena", which carries with it a very

25 particular meaning in some common law systems, could be

Page 318

1 used in our procedures without carrying it to the full

2 extent of those known and acceptable common law

3 penalties and/or fines, and that, if reporting to the

4 Security Council is a penalty, and cases have been cited

5 in the briefs that we have received that say that other

6 judicial institutions -- just noting non-failure to

7 cooperate, I suppose, is a penalty in itself -- that

8 that would perhaps solve the concern that I hear from

9 some of the speakers.

10 That is they say you cannot impose a fine, or you

11 cannot imprison on a state, and that is the natural and

12 only understanding of the word "subpoena." What I am

13 suggesting that that need not be the only understanding,

14 that we as a Tribunal, combining civil and common law

15 concepts, may devise.

16 So if we have the authority to report to the

17 Security Council and if states have an obligation to

18 comply with orders because of their obligation under the

19 UN Charter, and under international law, then it seems

20 to me that there needs to be an education process about

21 this term "subpoena", then rather than being so offended

22 by it and assuming that it calls for a certain response,

23 because that is how it has been used typically, that

24 that need not be the only approach.

25 So if a subpoena was issued, calling it a

Page 319

1 subpoena, but if it was understood that the penalty as

2 it relates to states would be at least in part what we

3 have already done in three different rules, what is the

4 problem as it relates to states?

5 MR LJUBANOVIC: It is questionable whether one can sanction

6 a state or not. It is the unanimous view that a penalty

7 cannot be imposed on a state. If, as Professor

8 Condorelli said, the only sanction is to notify the

9 Security Council, and thus denounce this non-compliance

10 -- if the Tribunal is satisfied with that, then the

11 problem is not so great, but if the desire is for the

12 Tribunal itself to be able to take such measures of

13 punishment because for the present in the Rules there is

14 no such possibility -- sanctions can only be enforced

15 against a witness who has come and refuses to testify.

16 But one might turn the thing around and say: "Why

17 need we use the term 'subpoena' when, according to

18 Article 29, paragraph 2, the Tribunal may issue an order

19 which are also obliges the state to satisfy?"

20 JUDGE McDONALD: If a subpoena were issued to an individual

21 and included in the subpoena was a statement or

22 notification that failure to comply with this subpoena

23 may result in a fine not exceeding 10,000 US dollars

24 and/or imprisonment for a term not to exceed six months,

25 would that solve the nullem crimen problem you have?

Page 320

1 MR LUBJANOVIC: Yes, but that applies to individuals only.

2 JUDGE McDONALD: As it is implicit in my question.

3 Actually, I will make it two questions. First, as to

4 individuals in their personal capacity, and then as to

5 individuals in their official capacity. As to

6 individuals, period, in terms of them being put on

7 notice that this is unlawful, failure to comply, this is

8 unlawful; would that solve that problem?

9 MR LJUBANOVIC: In the case of individuals, I think that

10 there are no problems, and a subpoena, since it is

11 envisaged in the Rules by the 1995 amendment, it can be

12 issued and that individual is obliged to comply to the

13 summons and come as a witness, because the subpoena, as

14 I understand it, means that he must come to testify

15 bringing documents with him. If he does not come, then

16 he can be punished, and that is quite in order according

17 to the rules, but in the case of a state official;

18 difficulties arise because, according to domestic law, a

19 state official is entitled to withhold delivery of

20 documents, if that is in the state interest or in the

21 general interest.

22 I will tell you what the provision as according to

23 the Croatian law are at present. According to Croatian

24 law, a court may issue orders to an individual,

25 including state officials and state bodies, to deliver

Page 321

1 certain documents, but there is a specific provision

2 saying this a state official and a state body may

3 withhold delivery of documents if that is in the general

4 interest, and, according to our law, the Trial Chamber

5 passes the determination. Then that state body in a

6 general way, not directly, conveys to the Trial Chamber

7 this general interest.

8 If the Trial Chamber insists, there is no forcible

9 execution of the order; that is, the document cannot be

10 taken away, but the whole issue has to be raised to a

11 higher level. Therefore, a solution may be found in this

12 case too, not for the state to deliver the documents to

13 the Trial Chamber and then for the Trial Chamber to

14 assess whether a national interest is at stake or not,

15 because in all probability it is the state that knows

16 best what its own interests are, but that state might

17 convey indirectly to the Trial Chamber that state

18 interest is involved, and then I would accept the

19 proposal that has already been made that if that Chamber

20 feels that such non-compliance is unwarranted, then it

21 could report it to the Security Council.

22 JUDGE McDONALD: We have no additional questions. Thank you

23 very much for submitting your brief and thank you for

24 coming and responding to our questions and giving your


Page 322

1 We have one more amicus, Miss Wedgwood.

2 Presentation by MISS WEDGWOOD

3 JUDGE McDONALD: You too have been here for a day and a

4 half.

5 MS WEDGWOOD: It is a pleasure to be here your Honour. If

6 only for gathering good teaching materials, this has

7 been an extremely interesting hearing for me.

8 I thought if I might address where I think the

9 conversation has gotten to, because it has changed a

10 bit, I think, since the beginning of the hearing. I

11 will do so very briefly and do please stop me when

12 I have used up my time.

13 I do think the starting point is in this kind of a

14 case which addresses command responsibility there is a

15 unique need for the kinds of records that only a

16 government will have. The military records, though

17 sensitive, are, if you like, the res gestae, the speech

18 acts that oftentimes constitute command responsibility,

19 either the orders that are given, even the orders that

20 are not given, the reports that did or did not go to the

21 commander.

22 So this is not simply third party records by an

23 interested bystander. These are the very gravamen of the

24 offences in issue. Unlike a proceeding between states,

25 where you can deal with questions of privilege by

Page 323

1 penalising the state by forcing them to concede a point

2 or have an adverse inference drawn against them, here

3 the liberty or incarceration of an individual is at

4 stake, so you cannot really -- there is a kind of a

5 mismatch between the people who control the evidence and

6 the parties whose most sensitive interest and liberty is

7 at issue.

8 Much of the conversation has seemed to concern

9 worries about overbreadth or materiality or national

10 security problems, and those I take it really are all

11 put to one side, because here the issue before us is the

12 principle in se of whether there can be a command given

13 to a sovereign country to turn over records, and whether

14 there should be a motion to quash on grounds of

15 overbreadth or laches or some kind of framework for

16 protecting sensitive secrets that affect a country's

17 future security interests are different issues entirely.

18 I think your Honour is correct, if I took the

19 drift of your questions properly, that the court is

20 ultimately forced to proceed on the principle of

21 effectiveness, which has been recognised by many

22 tribunals -- the ICJ, for example, in a certain expenses

23 case where Judge Percy Spender said:

24 "If two interpretations of a document are

25 possible, that which is favourable to the accomplishment

Page 324

1 of the purpose and not restrictive of it must be

2 preferred"; and in the ICJ case, the headquarters

3 agreement dispute, Judge Shahabadin said that:

4 "Certainly the court should always take care to

5 satisfy itself of its authority to act, but it is

6 equally appropriate to be mindful of the risk of wishing

7 to be so very certain of its powers as to discover

8 overly refined reasons for not exercising those which it

9 may fairly be thought to have."

10 A complicated sentence but a simple idea, that

11 where you are dealing with the growth of an institution,

12 where it is impossible for a legislative body to specify

13 in advance every permutation of facts that may come upon

14 the body, inevitably the institution is forced to look

15 to its own nature, the teleological principle that

16 international lawyers like to talk about that you have

17 to look at what is essential to the accomplishment of

18 the institution's very purpose.

19 JUDGE McDONALD: Do you have a citation to that last quote

20 or is it --

21 MS WEDGWOOD: Judge Shahabadin was -- I do not think it is

22 in my brief, your Honour, I apologise. 1988, ICJ at page

23 63 and the Percy Spender from the certain expenses was

24 1962, ICJ, at 186.

25 JUDGE McDONALD: Do not draw any conclusions from the

Page 325

1 questions that I may ask.

2 MS WEDGWOOD: I have learned not to do that in court, your

3 Honour.

4 JUDGE McDONALD: I act as devil's advocate sometimes. You

5 know if you argue before court, sometimes the questions

6 they are asking you is because they agree, disagree or

7 just need clarification.

8 MS WEDGWOOD: I only mention your Honour's questions to say

9 they did make reference to this principle of

10 effectiveness which has been recognised by the courts.

11 JUDGE McDONALD: It has a lot. Particularly in one of the

12 briefs, and we did not hear from that amicus --

13 Professor Salcedo, I think. He submitted a brief that

14 really focuses on that. You may proceed.

15 MS WEDGWOOD: Thank you, your Honour. I do think one thing

16 I might add to the conversation is just to point out

17 that the source of authority here that undergirds the

18 Tribunal's power -- it is not simply the Chapter 7

19 authority of the UN Charter straight up, but as well the

20 Dayton Agreement, which was an agreement among three

21 belligerents, and there is nothing wrong with being a

22 belligerent. There is not a question of the justness of

23 the war. What is before this Tribunal in its competence

24 is how the war was fought. It is the lawfulness and

25 tactics of the war but not why the war was fought.

Page 326

1 There were three belligerents, the Federal

2 Republic of Yugoslavia, Croatia, and Bosnia and

3 Herzegovina, and each of them were parties to the Dayton

4 Agreement, and under Dayton each of them agreed to

5 comply with the orders of the Tribunal, to cooperate

6 with the Tribunal and great benefits were gained by each

7 of these three parties under Dayton: the intervention of

8 the international community, by the commitment of armed

9 forces, arms control agreements, a great many things, in

10 exchange -- not in exchange -- alongside of this promise

11 to cooperate. One need not found the Tribunal's

12 authority here solely on the question of Chapter 7 in se

13 and the Tribunal's Statute in se, but as well on the

14 promise of the parties to cooperate and, if you like,

15 essentially a waiver of any claim of immunity or

16 sovereignty that they might otherwise have.

17 I take it it is conceded by --

18 JUDGE McDONALD: Before you proceed, if you do not mind,

19 from that point, you mentioned that in your brief, the

20 Dayton Accords. My question is: I think one of the

21 amici -- or it may have been Croatia -- said that

22 really nothing was added by the Dayton Accords, no

23 specificity. I think it was Mr Malanczuk, maybe.

24 Nothing specific was added to the obligation from the

25 Dayton Accords, and my question is: is it just a

Page 327

1 reaffirmation of the duty to cooperate, and if there

2 were no Dayton accords, would not all member states have

3 the same obligations? So if the Dayton Accords gives a

4 greater obligation, what is it? Of course it is a

5 treaty. In your brief you say here there is at least a

6 treaty-based relinquishment of sovereignty, but do you

7 really need it, and, if so, what does it give this

8 issue.

9 MS WEDGWOOD: As I believe Croatia itself has said Chapter

10 7 authority under the UN authority is a kind of Protean

11 power, a plenary power but there are, to be fair,

12 debates about its extent, its outer limit. There are,

13 as any denizen of the UN hallways knows, debates about

14 the appropriate balance of authority between the General

15 Assembly and the Security. Proposals for expanding the

16 Security Council are based upon the concern that some

17 countries have about the intervention of the Council

18 into civil wars and civil conflicts.

19 So I do think that Dayton, if you like, gives you

20 a comfort factor, that it gives you a second stanchion

21 upon which to build. One does not have to address in a

22 wholly abstract way the outer limits of Chapter 7

23 authority, because the signature of the parties at

24 Dayton gives you have a separate voluntary consensual

25 basis for their cooperation with the Tribunal. So I

Page 328

1 think Chapter 7 alone here would be fully sufficient, in

2 my own view, especially since this concerns the

3 belligerence in the territory of Yugoslavia, but I do

4 think their signature on the dotted line at Dayton gives

5 you a second pillar upon which to allay any concern

6 among any of the members of the United Nations that this

7 implicates Chapter 7 authority alone.

8 JUDGE McDONALD: Do you join the Prosecutor then in its use

9 of the term "coercive" as to states of the former

10 Yugoslavia but "mandatory" as to all states, or if you

11 do not join in that term, do you consider there is of a

12 different obligation for those states that are in the

13 former Yugoslavia, a position that Croatia disagrees

14 with very strongly.

15 MS WEDGWOOD: I guess my own common law background would

16 probably show your Honour in generally declining to

17 reach questions one does not have to. I am not sure

18 I would adopt a phrase of culprit states because I am

19 not sure that is pertinent here. I do think again it is

20 their status as belligerents in the war, the conduct of

21 their officials, their soldiers, their paramilitary,

22 their citizens, is what is in issue for the Tribunal.

23 In that sense they present a distinct category of state.

24 JUDGE McDONALD: There may be some other states, though, who

25 have that same type of information. That is perhaps

Page 329

1 states that participated with UNPROFOR. They may not

2 have been belligerents, but they still being on the

3 scene, so to speak, also may have possession of that

4 type of information. Would the same duty that you

5 suggests belongs to belligerent states belong to them?

6 MS WEDGWOOD: A harder question, your Honour, for a couple

7 of different reasons.

8 JUDGE McDONALD: It is not before us, I realise.

9 MS WEDGWOOD: Indeed. The United Nations has always been

10 very sensitive about its status as an international

11 organisation. For example, on the Geneva Conventions

12 their peace-keeping troops always operate according to

13 the Geneva Conventions and yet the UN is quite dainty

14 about insisting that it is not itself a party to the

15 Geneva Conventions.

16 I do think the case before us is the easiest one,

17 because not only were the belligerents there, not only

18 is the Russianae locus, Yugoslavia, the former

19 Yugoslavia itself, but the very records in question one

20 presumes are still in the former Yugoslavia. Whether a

21 national contingent that contributed to UNPROFOR or IFOR

22 or SFOR with records that may not be in the former

23 Yugoslavia would be obliged to turn those over -- I am

24 sure those countries would want to cooperate with the

25 Tribunal. I guess my instinct is not to try to sketch

Page 330

1 every possibility before one has to.

2 JUDGE McDONALD: In your brief you say that Herceg-Bosna has

3 never been a state and if it was a state is no longer a

4 state. Are you going to speak to that? It seems it is

5 related to what we are talking about now.

6 MS WEDGWOOD: Yes, your Honour. I was surprised this had

7 not arisen in any of the other briefing materials.

8 Herceg-Bosna was, if you like, an attempt by the

9 Croatian community in the former Bosnia-Herzegovina --

10 in Bosnia and Herzegovina to create some kind of

11 autonomy for itself, rather like the rump Republic of

12 Srpska, which had no legal status before Dayton.

13 Herceg-Bosna has never been recognised, has never gained

14 any juridical status in the eyes of anyone except is own

15 denizens and, I believe, the Republic of Croatia.

16 It is certainly a non-entity since the conclusion

17 of the 1994 federation agreement on March 19th 1994,

18 which created this Muslim/Croat federation which now has

19 become the federation of the Dayton Accord. Since

20 Dayton itself it is clear that Bosnia and Herzegovina is

21 only made up of the Republic of Srpska and the

22 federation. Herceg-Bosna has no status. Thirdly, the

23 Croatian member of the Bosnian national Presidency,

24 Mr Zubac, has now declared, the entity, community,

25 republic whatever you like to call it of Herceg-Bosna is

Page 331

1 no more, so even if there had been a claim, that is now

2 defunct.

3 Here you have of a question that the records in

4 question are not a sovereign entity. It is as if they

5 are the records of a private company happened to wind up

6 in the state archives of France or Bosnia-Herzegovina or

7 Croatia. What I fear might distinguish me as going back

8 to American criminal law, there used to be a distinction

9 drawn between the act of production and the records in

10 themselves. There were debates about giving immunity

11 for the act of production as opposed to whether the

12 records themselves were private in some way. The old

13 Omstead case from the turn of the century, a right of

14 privacy in records in themselves. Here when a claim is

15 made of national immunity or national sovereignty or

16 sovereign immunity, what is really being spoken of,

17 I think, is not simply the act of production but whether

18 there is kind of a national work product, if you like,

19 that these are governmental records that belong and are

20 private to the sovereign.

21 Here that is clearly not the case. These were the

22 records of an association, Herceg-Bosna, which has never

23 gained international status as a sovereign so I think

24 the analogy here is not to what the records of Croatia

25 or Bosnia itself might be but the records of a labour

Page 332

1 union, private company or community association.

2 JUDGE McDONALD: Of course then the right -- the national

3 security interest, there would be none. There might be

4 a claim there once again that the subpoena should not

5 lie against a high governmental official in his

6 official; capacity, or would -- that issue would still

7 have to be resolved, would it not.

8 MS WEDGWOOD: On the national security claim --

9 JUDGE McDONALD: Not the national security claim. I

10 understand that that would go out the window according

11 to your--

12 MS WEDGWOOD: Every country has a fair worry about its

13 future security.

14 JUDGE McDONALD: As to these documents, what you are saying

15 is they are documents that belong to Herceg-Bosna, and

16 they do not belong to Croatia -- they belong to

17 Herceg-Bosna, so any claim to national security would be

18 unsuccessful. Still Croatia might very well assert the

19 proposition that a subpoena should not lie against a

20 state or a state official acting in his official

21 capacity. This state official, now, is acting in his

22 official capacity as the custodian of these records

23 which, using your approach, could not in any way

24 endanger their national security, since they do not

25 relate to their security seemingly, but could they not

Page 333

1 raise that first claim, no subpoena against an

2 individual in his official capacity?

3 MS WEDGWOOD: The issue of the proper addressee of a

4 subpoena still exists. I readily concede that but I

5 do think in terms of both how the Tribunal feels about

6 its own efficacy, what it is fair to infer about its own

7 power, the fact that the records being sought do not lie

8 at the core, if you like, of sovereignty but are just a

9 matter of a custodian of convenience goes to what is a

10 kind of prudent inference that the Tribunal would want

11 to draw about its own powers.

12 If I might mention one thing about which I fear

13 comes from my own vantage point in New York where I

14 probably spend too much time watching the Security

15 Council close up, but when one thinks about what kind of

16 sanctioning scheme is fair to infer within the power of

17 the Tribunal, and Croatia itself concede that these

18 orders can being made compulsory, they are mandatory

19 orders, they just raise the question of how to enforce

20 them, the Security Council has become a very busy

21 place. Where formally they might have met eight hours a

22 day, they now meet dozens of hours a week. Their

23 denizens never go home. So the kind of functional

24 judgement one would draw about the ability of the

25 Security Council to hold hearings on the scope of

Page 334

1 subpoenas, the proper addressees of subpoenas, if one is

2 construing what would have been the Council's intention,

3 do they mean themselves to be the appellate body from

4 the Tribunal for the enforcement of subpoenas? Given

5 their workload with Zaire, Albania and a host of other

6 problems, it just seems very implausible they would have

7 drafted a statute for this Tribunal that would have

8 tended to make them a councillor of constant resort for

9 the enforcement of orders or subpoenae that these

10 Tribunal might issue.

11 If I might also just mention, I do think there is

12 and analogy that has not been drawn one on having the

13 Tribunal itself issue sanctions. One is that in Rule

14 61(D), which I do not think has been disputed here,

15 third party states can be ordered by the Tribunal to

16 freeze the assets et cetera of departments who fail to

17 surrender. So the Tribunal is not only put to resort to

18 the Security Council but acts itself under Rule 61(D) to

19 enforce its orders of arrest. Second --

20 JUDGE McDONALD: That is mentioned in the Statute itself?

21 MS WEDGWOOD: Yes, indeed.

22 JUDGE McDONALD: There is clear -- there is explicit

23 authority for that notion, I do believe; if I am not,

24 correct. I am not talking about 61(D) now. I am

25 talking about another provision in the Statute that I do

Page 335

1 not look at often but I will find it.

2 JUDGE JAN: This clause chiefly relates to the accused, not

3 to a witness.

4 MS WEDGWOOD: No, it is a defendant who fails to surrender;

5 correct, your Honour.

6 JUDGE JAN: Not a witness?

7 MS WEDGWOOD: If I misspoke I apologise. A person who

8 fails to yes.

9 JUDGE JAN: The accused would be one who has been indicted.

10 MS WEDGWOOD: My point is -- the question of what analogy

11 you would draw, the argument has been made that

12 heretofore the Tribunal has only spoken of going to the

13 Security Council to give teeth to its orders and

14 therefore one should not infer any other option in the

15 case of subpoenae to witnesses. In 61(D) there is an

16 exception to that.

17 JUDGE McDONALD: That is mentioned in the Statute in -- in

18 the penalty section in Article 24 in the penalties

19 Section 3:

20 "In addition to imprisonment, the Trial Chambers

21 may order the return of any property and proceeds

22 acquired by criminal conduct including by means of

23 duress to their rightful owners, so that 61(D) was an

24 attempt to provide for a rule to give effect to that

25 specific penalty, I think, in the Statute, but that

Page 336

1 certainly, though, is also authority for the proposition

2 that the Trial Chamber deals with third states, of

3 course, who are obviously not parties.

4 MS WEDGWOOD: Excuse me.


6 MS WEDGWOOD: I might also take it, your Honour, although

7 it might be a provisional measure which will allow the

8 preservation of assets for their later return to anybody

9 who was wrongfully deprived of them, it has a course of

10 effect on the defendant. He cannot go to Switzerland

11 and live off his bank account out of reach of the

12 Tribunal.

13 JUDGE McDONALD: We will try to avoid that.

14 MS WEDGWOOD: I would also draw a different inference from

15 the Maastricht Treaty, the European Court of Justice

16 Treaty, than some of the other amici have. The fact

17 that the ECJ as amended by Maastricht does allow a fine

18 on non-compliant states shows that it is not outside the

19 range of magistrates to have an International Tribunal

20 act directly on states in the course of fashion.

21 Although there it was done by explicit treaty provision,

22 I do think the fact that it was accepted by the European

23 Community -- the Union -- shows that this is within the

24 range of -- the repertory of remedies that one could

25 conceive of for a Tribunal, and therefore to find it be

Page 337

1 within a Tribunal's inherent authority is not so

2 peculiar.

3 JUDGE McDONALD: Mr Zimmermann spoke to that. What he said,

4 if I recall it correctly, is that that treaty

5 represented as significant a waiver of sovereign

6 immunity as does the waiver under Chapter 7, which is a

7 very extraordinary statement. Of course he is not here

8 to tell me I am wrong. That is how I recall what he

9 said. He said: and even under that circumstance it had

10 to be amended to provide for a penalty to be imposed.

11 The problem is that it is the Security Council

12 that is empowered to devise enforcement measures. So it

13 is really a little different situation, I think, than a

14 treaty. Then they devise the enforcement measures, in

15 this instance the Tribunal, then they give us explicit

16 power. Then they say that we are to carry out our

17 judicial functions, or at least the Secretary General

18 says that we are to carry out our judicial functions

19 without political considerations, and they tell us to

20 draft rules to get the job done. I think that is a

21 little bit different than the EC treaty but anyway --

22 MS WEDGWOOD: I do not mean to belabour the analogy, your

23 Honour but clearly the European Union is deepening and

24 it is a very gemutlich community of states but it shows

25 this is not an un-thought-of kind of remedy for a

Page 338

1 Tribunal to have. Whether one infers it here or not it

2 a different question.

3 Finally, let me just say, in general listening to

4 the arguments -- and it has been very interesting for me

5 because I do think that common law lawyers and civilian

6 lawyers at times do have different ways of approaching

7 problems. Common law lawyers probably tend to be more

8 functionalist and make arguments from prudence and

9 inference -- for prudence and function, more than

10 civilians who prefer texts, the mentality of

11 codification, but I do think here at times the search

12 for explicit authority for what the Tribunal might do in

13 relation to the enforcement of the subpoenae or the

14 orders was confusing levels of authority, if you like.

15 I mean, five quite distinct questions: is it

16 within Chapter 7 authority of the Security Council? Did

17 the Security Council delegate it to the Tribunal as a

18 potential power to draw upon? Is it within the rules

19 that the Tribunal has yet created? Is it within the

20 rules that the Tribunal could create, because I note

21 under Rule 6 that the Tribunal can draft a new rule with

22 immediate efficacy, and if it is concerning something

23 that is prospective one might have to reissue an order,

24 if you like, but if it is prospective and there is no

25 problem of nulle pene sine lege, a new Rule creating a

Page 339

1 coercive measure to enforce orders of document

2 production might take effect immediately.

3 Finally, the fifth, if you like, is what authority

4 the court might find without a formal rule tailored to a

5 case, and if you can forgive me for drawing an American

6 analogy, in the Federal Rules of Criminal Procedure and

7 Evidence there is always a housekeeping rule at the end

8 that says if there is something not provided for the

9 court can use its discretion to craft a rule for the

10 particular case.

11 Here even if it is not deemed to be part of the

12 existing authority of rules, the court might well -- the

13 hand-tailored case, the bespoke suit, it is often within

14 the compass of a court to devise a procedure or a rule

15 for a particular case that has not yet come up. I think

16 that some of the concern, for example, about rule 77 --

17 was contempt provided for in 77 this exact set of facts?

18 -- is really beside the point, because the court could

19 either craft a new rule or could find it within its

20 inherent authority even if not explicitly provided for

21 in 77.

22 JUDGE McDONALD: If we were then to determine that failure

23 to comply with a subpoena by an individual or state

24 could result in a penalty, the fact that 77 does not

25 provide for a penalty under those circumstances -- does

Page 340

1 not provide for those explicitly -- would not violate

2 the nullem crimen principle?

3 MS WEDGWOOD: In so far as one is dealing with a

4 prospective duty to produce documents likened to civil

5 contempt, not criminal contempt, a question of money or

6 incarceration, whose only purpose is coercive and which

7 is relieved as soon as production is made, if that were

8 prospective, then there is no problem of ex post facto

9 or nullem -- --

10 JUDGE McDONALD: Ex post facto. I like that better. I am

11 more used to that.

12 MS WEDGWOOD: I can never do the Latin quite right.

13 JUDGE McDONALD: You mentioned Rule 6 in terms of the

14 amendments and it could apply immediately. That is

15 true. Rule 6 provides:

16 "An amendment shall enter into force immediately

17 but shall not operate to prejudice the rights of the

18 accused or the suspect", as we amended it in April,

19 I think, "in any pending case."

20 "An accused or a suspect in any pending case":

21 that sounds like it is time for us to amend that Rule

22 too, if we decide to deal with contemptors, so if we

23 were then to find that we could issue subpoenas to

24 individuals and if a penalty could be imposed upon that

25 individual who fails to comply similar to what is

Page 341

1 already provided in Rule 77, would that violate the ex

2 post facto rules -- principles, since it is not

3 presently in force?

4 The second question is: the Prosecutor takes the

5 position that if you put in that notice your failure to

6 comply or order or subpoena -- it will be an order

7 really to show cause -- put in that -- I guess it would

8 have to go on the subpoena in the first instance -- if

9 you put that in there saying your failure to comply will

10 result -- could result -- or will result in these

11 penalties, that would obviate that problem. What is

12 your position on that?

13 MS WEDGWOOD: Actual notice whether it is in parking

14 tickets or in subpoenas is always a good prophylactic

15 act for due process. Whether one would want to formally

16 withdraw the subpoena and reissue the order or simply

17 deem the subpoena to be a continuing order of production

18 with new rule that future failure to comply would be

19 penalised or coerced in the following way, it would

20 certainly relieve any problem of ex post facto.

21 Finally let me just mention one last thing, your

22 Honour, and I beg the indulgence of the court for taking

23 too much time. I do think in real life in the chaos of

24 the conflict in the former Yugoslavia that the question

25 of to whom one can address the subpoena, in particular

Page 342

1 whether you can name an individual person as the

2 addressee of the subpoena, is crucially important. As

3 one saw in the events of the subpoena addressed to

4 Bosnia-Herzegovina, where the Defence Minister of

5 Bosnia-Herzegovina apparently ignored the instructions

6 of his own Government, where the formal authority -- the

7 organisation charts of governments do not work the way

8 they are supposed to on paper, and where political

9 authority is quite uncertain, where there are, in fact,

10 still recalcitrant communities and parties, the ability

11 to address a subpoena to a particular individual who has

12 actual custody is very important to the efficacy of the

13 Tribunal, and so too for the sake of the probativeness

14 of the fact-finding, you want somebody who knows how the

15 records were kept, whether they are complete, whether

16 they were authentic. All the suppositions of

17 administrative regularity, bureaucratic regularity, that

18 often in common law systems allows an exception of the

19 hearsay rule that allows any old custodian to bring them

20 in.

21 In the case of a civil conflict or an

22 international conflict, there is a peculiarly cogent

23 need for custodians and producers who know whereof they

24 speak and are not simply custodians of convenience to

25 make sure that the records are what they purport to be

Page 343

1 and are complete.

2 JUDGE McDONALD: Do you think it might not be better, if you

3 wanted to achieve that, to address the subpoena to the

4 state and direct the state to designate that official

5 who is the custodian and who has the best information

6 regarding the contents of -- contents and locations of

7 these documents? Then you avoid this problem of "I am

8 not the custodian", that kind of? Business. Then you

9 put the burden right on the state.

10 MS WEDGWOOD: If the state were the party, that would be a

11 great thing to do your Honour, but since it is the

12 liberty of an individual that is at stake here, I think

13 for the sake of the probativeness of the fact-finding

14 which is again crucial through a criminal trial, one

15 cannot delegate that choice necessarily to the state.

16 The Prosecutor has a good faith duty to seek the best

17 possible proof. Thank you very much.

18 JUDGE McDONALD: Or perhaps designate a named individual or

19 in the alternative a person with the most knowledge. I

20 do not know. Maybe because I think we have had, Miss

21 Glumac, how many, five hearings on this point, trying to

22 resolve this whole question. In my own mind I am trying

23 to decide how we might make it clearer who is to come

24 but I hear what you say. Do you have anything else

25 because I have some questions from what you have raised

Page 344

1 in your brief?

2 MS WEDGWOOD: No, your Honour.

3 JUDGE McDONALD: Now you find in your brief that the

4 Tribunal has the authority to issue a subpoena duces

5 tecum to a state and to high governmental officials.

6 You also find that we could hold the state and the

7 individual in contempt.

8 If we are to hold the individual in contempt, need

9 that individual be before the Tribunal, before we could

10 make such a finding, and if he or she is not here, would

11 that be a trial in absentia?

12 MS WEDGWOOD: I do not believe so, your Honour. The

13 individual need not be present. Here one can make a

14 direct analogy to Rule 77. The contempt power to -- in

15 the case of an individual who has failed to --

16 JUDGE McDONALD: Answer or interfere.

17 MS WEDGWOOD: Let me think for a moment. Certainly the

18 contempt power extends to conduct that occurs outside

19 the presence of the court because the interference or

20 intimidation might well have occurred in a different

21 country. In so far as the sanction is designed to

22 simply be coercive, is analogous to a civil contempt,

23 relieved the instant that obedience is shown, that kind

24 of a civil penalty does not require personal presence.

25 If it was criminal contempt, I guess there is an

Page 345

1 argument that, like any other criminal penalty, since

2 the Tribunal does not have in absentia authority to try

3 defendants in absentia that even criminal contemnors

4 should not be tried for criminal contempt before they

5 are brought before the Tribunal.

6 JUDGE McDONALD: In the US Federal Rules of Procedure it is

7 specifically provided for in criminal contempt.

8 MS WEDGWOOD: Yes, indeed.

9 JUDGE McDONALD: Mr Crawford takes the position -- the

10 Prosecutor takes the position that the Tribunal lacks

11 the power to issue subpoenas to states because -- well,

12 for a number of reasons, I suppose, but one reason is --

13 excuse me; I am sorry -- to penalise a state, because

14 Article 6 and 7.1 really puts the focus on individuals.

15 I am not stating his argument as eloquently as he did.

16 Where do we get this power to penalise states, assuming

17 we have the power to issue a subpoena duces tecum to a

18 state, and is the fact that -- is Article 6 -- does

19 Article 6 -- do Article 6 and 7.1 somehow limit our

20 authority to penalise individuals?

21 MS WEDGWOOD: If I can just a moment to turn to Article 6

22 and 7.1.

23 JUDGE McDONALD: You really were the last person, Miss

24 Wedgwood. We will be recessing soon.

25 MS WEDGWOOD: I take 6 and 7, your Honour, simply to be, if

Page 346

1 you like, a restatement of the general rule or at least

2 the practice of criminal law, international law, that

3 heretofore states have not been deemed to be appropriate

4 parties for criminal liability. Again there is some

5 changing mood on this. The principles of state

6 responsibility that are presently before the

7 International Law Commission speak of the possibility of

8 states being criminal actors, but I take 6 and simply to

9 be a question of who is the appropriate target. Who is

10 the appropriate class of defendants for the Tribunal to

11 address as the indictees of charges.

12 I share Mr Crawford's, I suppose, delicacy that if

13 it is all in a word -- if calling it a binding order

14 instead of a subpoena will make a happy marriage of the

15 parties, then there is every reason to recast a request

16 for an order in a way that will lead to amity and

17 compliance but I do not share his diffidence on the

18 penalty.

19 JUDGE McDONALD: Can you do that if you are going to issue a

20 subpoena to an individual in his official capacity and

21 then have a document entitled subpoena duces tecum to an

22 individual and then have also a document called an order

23 to the state? What the Prosecutor has done in the two

24 instances is in one subpoena address it to the state and

25 then the second addressee on the same coversheet is the

Page 347

1 individual. So in a sense, I mean, you are going to

2 have to decide what you want to do, unless you separate

3 the documents, and name one an order to the state and

4 then a subpoena duces tecum to an individual, or is that

5 not a problem?

6 MS WEDGWOOD: It seems to be a bit of nominalism what you

7 call it. If it is a compelling order, the coercive

8 effect, the legal obligation to comply is the same. The

9 question of penalty can be put ahead to a forward step

10 so whether you call it a subpoena or call it a

11 compulsory order or order to produce, mandatory order to

12 produce, it is all -- again for the sake of -- the

13 mission -- the burden of the Tribunal to craft a

14 cosmopolitan criminal procedure that plays well in the

15 sensibilities of both civil and common law lawyers --

16 I might choose the more ecumenical term, but I do not

17 think what word is used really goes to the power of the

18 Tribunal.

19 JUDGE McDONALD: We do not have -- an argument is made that

20 we do not have a Rule at this time dealing with contempt

21 for failure to comply with the production of documents.

22 Now that is starting to sound like a good way to put it,

23 a subpoena. Would we need a Rule on that? We talked a

24 little bit about that a few moments ago.

25 MS WEDGWOOD: I have heard the argument. Perhaps I am too

Page 348

1 much of a latitudinarian but as at Rule 77(A), a witness

2 that refuses to answer a question relevant to an issue

3 before the Tribunal or fails contumaciously to answer a

4 question -- if you like, an order to produce is a kind

5 of question -- so my own legal sense of fairness is not

6 offended by placing it within 77(A) but if one prefers

7 simply to make it prospective and a rule for the case,

8 that is one alternative. The second alternative is to

9 go to the Tribunal as a whole and craft a few rule. The

10 principle is there.

11 It is not a question of deviation from what has

12 been the recognised authority of the Tribunal to compel

13 the production of evidence, whether it is viva voce

14 testimony or real evidence, the murder weapon, or

15 documents that go to the heart of the defence charge.

16 JUDGE McDONALD: Of course, we would also have to advise --

17 let me see if I can find 77 -- advise -- I was looking

18 for the Rule that deals with advising the witness of his

19 right not to incriminate himself. Let us see. Well, we

20 will leave that aside. Anyway, according to your -- in

21 your interpretation it would fit within 77(A)?

22 One final question regarding national security

23 claims. In your brief you take the position that a

24 state may not make a blanket objection, that they can be

25 required at least to provide the documents to the Trial

Page 349

1 Chamber for in camera review. You suggest advising

2 procedures like the ones in -- is it CIPA?

3 MS WEDGWOOD: The Classified Information Procedures Act.

4 JUDGE McDONALD: Since you are an American lawyer, does

5 Reynolds support that proposition that the Tribunal may

6 compel the production of documents for review by the

7 Chamber in camera even in the face of an objection on

8 the basis of national security?

9 MS WEDGWOOD: The analogy to national law is not complete

10 obviously, and there are unique problems internationally

11 because ordinarily, as has been pointed out, it is the

12 executive branch of the government that is making the

13 weighing between the national security interests at

14 stake and the interest in the enforcement of criminal

15 law. Although in the US, in fact, from time to time

16 with the special Prosecutor Act, when you have

17 independent arms, independent prosecutors created who

18 are separate from the defence branch of the government,

19 you get something of the same kind of problem, but CIPA

20 has been very useful in finding a middle ground and

21 mitigating the conflict. Early in the 80s or late 70s

22 there was a great problem in Washington about so-called

23 greymail where certain cases seemed untryable because

24 the idea of an uncontrolled trial procedure where

25 something might just pop out and something crucial to

Page 350

1 national security might just be blurted out by a witness

2 was unacceptable.

3 Therefore the idea of having very graduated

4 procedures where you had to give notice of your

5 intention to use classified information, protective

6 orders, closed hearings, secure custodians and secure

7 respositories went a very long way to mitigating any

8 real conflict. There might ultimately be a question of

9 a crucial particle of information that was both

10 probative and yet prejudicial to a country's future

11 national security posture, and in that case I guess

12 I would expect it might well never come up, because a

13 reasonable prosecutor and a reasonable national

14 representative should be able to find some way to

15 compromise that with the generic substitution of

16 information stipulations. If it did come up then it

17 would be for the Tribunal to decide.

18 JUDGE McDONALD: Well, it may for the Prosecutor and we do

19 have a rule that somewhat touches that. It is 66

20 something or other. It is the last paragraph in 66, C

21 or D -- C, but that is when the Prosecutor has,

22 I gather, obtained state secrets from a state and then

23 the Prosecutor wants -- has to really give assurances to

24 the state that it will not disclose those state

25 secrets.

Page 351

1 What about the defence, though? When the defence

2 is seeking documents that may be relevant to his

3 position and necessary for his defence, he is in a

4 different situation. You do not have a question of a

5 reasonable prosecutor and a reasonable state. You have

6 a question of a defence lawyer who will do whatever he

7 has to do to represent his client.

8 MS WEDGWOOD: There have been reasonable defence counsel in

9 the past and I am sure in the future and --

10 JUDGE McDONALD: I am not suggesting they were not

11 reasonable but I mean that they have different

12 interests.

13 MS WEDGWOOD: Under CIPA it has been handled with solemn

14 bare-teethed protective orders in closed hearings, a

15 high standard of materiality and admissibility. You

16 can't have any old piece of information. You have to

17 show why it is necessary to your case. But the number

18 of actual conflicts have been relatively small.

19 Under the Totten case in the US -- I mean from

20 time to time there are cases that become untryable. It

21 is 1875. I will give your Honour the citation.

22 JUDGE McDONALD: The year 1875. No wonder I have forgotten

23 it. I have a long memory but ...

24 MS WEDGWOOD: The Totten doctrine came up more recently in

25 the Home Port litigation before Judge Sifton where a

Page 352

1 question of environmental impact statements and whether

2 the navy was nuclear or not if they adopted Staten

3 Island. Occasionally there are cases that become

4 untryable, because the information is that sensitive,

5 but this is retrospective, number one. Number two, if

6 you take the national security exception at any great

7 breadth, the very nature of war crimes would become

8 untryable. Again to prove command responsibility even

9 by the defendants' lights, you have to show what went on

10 in a military headquarters. So any kind of blunderbuss

11 blanket automatic national security exception would gut

12 and disembowel the very idea of command responsibility.

13 So it requires a sensitive approach by the court which

14 I simply thought CIPA might produce some analogies for.

15 JUDGE JAN: The national security claim would always act

16 against the accused. The prosecution cannot get the

17 evidence if it has no case, but it is the accused who is

18 going to suffer, because there may be some documents

19 which have a bearing on his defence. So in practice it

20 is the accused who is going to suffer because it is a

21 national security claim. In fact, you are leaving the

22 fate of the accused not to the Tribunal but to the state

23 which is claiming -- placing a claim for national

24 security. It is the accused who will always suffer.

25 MS WEDGWOOD: It may cut both ways, your Honour. If there

Page 353

1 was an order by an accused saying: "Please do not harm

2 that villager"; it would clearly be exculpatory. if the

3 records, however, showed he had failed to set up a

4 decent reporting system for his men in the field, it

5 would be inculpatory. It may cut both ways.

6 JUDGE JAN: So if it is for the prosecution to prove the

7 case and the prosecution is unable to get that evidence,

8 there is no case for the accused to answer, but the

9 accused, if he has no access to exculpatory documents he

10 suffers in his defence. So how can there be a proper

11 trial?

12 MS WEDGWOOD: That is very fair, your Honour. I mean, I

13 will sit down, since --

14 JUDGE McDONALD: In some instances we would have to dismiss

15 the indictment if we found that the evidence --

16 Mr Hayman was dosing there but he heard that --

17 MR HAYMAN: I heard you perfectly clearly, your Honour.

18 JUDGE McDONALD: You were not dosing; you were sitting

19 back. If it is necessary, if he is unable, if it is

20 critical to his defence, I guess there will have to be a

21 determination.

22 MS WEDGWOOD: I do think some of the innovations of this

23 Tribunal on an anonymous witnesses, even though it was

24 controversial to the academic community, but still some

25 of the sensitive procedures that this Tribunal has

Page 354

1 devised for treating the very personal interests and --

2 against the interests of justice that arise in these

3 cases, the same acumen and surgical technique can be

4 applied to this as well.

5 JUDGE McDONALD: I am glad you mentioned that, because just

6 in terms of dealing with hearing witnesses, we have

7 devised a number of very creative protective measures

8 for both prosecution and defence, unknown in national

9 systems, again cognisant of the particular situation

10 that we have, so maybe we ought to use that same kind of

11 creativity at this time. I had not thought about it.

12 Thank you. Do you have anything else, Miss Wedgwood?

13 MS WEDGWOOD: No, your Honour. Thank you very much.

14 JUDGE McDONALD: Prosecution, do you have anything in

15 rebuttal?

16 JUSTICE ARBOUR: I do, your Honour.

17 JUDGE McDONALD: You may proceed. So much has been said.

18 JUSTICE ARBOUR: I will be brief.

19 JUDGE McDONALD: Take your time.

20 Rebuttal presentation by Justice Arbour

21 JUSTICE ARBOUR: I merely have several rebuttal issues to

22 raise particularly in respect of submissions that have

23 been made by representatives of the Republic of Croatia.

24 If I may, at the outset I would like to address

25 the three broad submissions of law and policy that were

Page 355

1 put forward by Ambassador Simonovic this morning.

2 The first point I would like to make is that the

3 Security Council was very clear that it did not wish to

4 create any new substantive humanitarian law. That was

5 made very clear in the deliberations of the Security

6 Council. In my submission, it was equally clear that it

7 wished to create an effective international criminal

8 court to which it would delegate all the powers to make

9 its own rules of procedure and evidence. So, in my

10 submission, the creation of new law was a matter of

11 substantive law, not a matter of procedure and evidence.

12 My second submission relates to the argument that

13 was put forward in morning that the duty to cooperate on

14 the part of states is sufficient for this Tribunal to

15 operate effectively as a criminal court.

16 To this I merely wish to point out that in reality

17 most of the time this is accurate, that the obligation

18 to cooperate on the part of states goes a long way to

19 rendering this Tribunal perfectly sufficiently efficient

20 in the discharge of its mandate.

21 I wish to point out, however, that the duty that

22 is imposed on states by the Security Council in creating

23 the Tribunal is not merely the duty to cooperate. That

24 is only Article 29, Subsection 1. Article 29,

25 Subsection 2, which is the sole one that we are

Page 356

1 interested in these proceedings, is not the duty to

2 cooperate; it is the duty to comply with orders. That

3 duty was wisely imposed by the Security Council,

4 realising that in law, if not merely in reality, the

5 duty to cooperate is likely to be insufficient.

6 This is rendered evident in this particular case

7 that the duty to cooperate is not sufficient, and I will

8 give two examples which illustrate the point. The

9 question was raised this morning as to whether or not

10 the Republic of Croatia had, in fact, appointed a person

11 to assist in cooperation with the Tribunal, and I merely

12 wish to point out that the person who has been appointed

13 as the head of office for cooperation is Dr Jelanic, who

14 is the signatory of the brief which contains the threat

15 to cease future cooperation with the Tribunal, should

16 the decision not be acceptable to Croatia, a statement

17 that has not been withdrawn by the Republic of Croatia.

18 Furthermore, this court has found in their Rule 61

19 decision in the Rijic case, and I will merely read the

20 conclusion, the last conclusion reached by this

21 Tribunal:

22 "The Tribunal notes that the failure to affect

23 personal service of the indictment can be ascribed to

24 the refusal to cooperate with the International Tribunal

25 by the Republic of Croatia and by the Federation of

Page 357

1 Bosnia-Herzegovina and entrust the responsibility of so

2 informing the Security Council to the President of the

3 International Tribunal".

4 There is thus a precedent which clearly

5 demonstrates that the simple duty to cooperate was

6 wisely determined by the Security Council to be an

7 insufficient means of ensuring the effectiveness of this

8 Tribunal.

9 The last point that was raised by Mr Simonovic was

10 whether or not to entrust this Tribunal with powers of

11 compellability of evidence would threaten the growth in

12 future of enforcement of international humanitarian law,

13 the suggestion being that such powers would threaten the

14 feasibility of contemplating that there would be one day

15 a permanent international criminal court.

16 In my submission, there is a greater threat to the

17 growth of enforcement of international humanitarian law,

18 and that would be a demonstration that this ad hoc

19 Tribunal was not only impotent but was vulnerable in

20 reaching accurate factual conclusions in the discharge

21 of its mandate by being at the mercy of the capricious

22 discharge by some states of their obligations to

23 cooperate and to comply. So, therefore, in my

24 submission, this is not a policy issue that should be

25 given any serious consideration.

Page 358

1 I now wish to address briefly the question of the

2 subpoena being a procedure solely borrowed from US law

3 and misunderstood as that by the Prosecution. If I may

4 refer the court to the Criminal Code of Canada, one that

5 I am particularly familiar with, as we tend to turn to

6 our own national system, if not to suggest they are

7 determinative, but for some guidance, Section 699 of the

8 Canadian Criminal Code provides:

9 "Where a person is required to attend to give

10 evidence before a Superior Court of Criminal

11 Jurisdiction, a Court of Appeal, an Appeal Court or a

12 Court of Criminal Jurisdiction ..."

13 I will spare you a description of what these all

14 are, but they are all criminal courts:

15 "... a subpoena directed to that person shall be

16 issued out of the court before which the attendance is

17 required".

18 Section 700 reads as follows:

19 "A subpoena shall require the person to whom it is

20 directed to attend at a time and place to be stated in

21 the subpoena to give evidence and, if required, to bring

22 with him anything that he has in his possession or under

23 his control relating to the subject matter of the

24 proceedings".

25 I wish to point out that Canadian criminal law is

Page 359

1 not derivative of American law, but indeed is

2 derivative, as are most criminal --

3 JUDGE McDONALD: It is the other way round, you would

4 suggest, is it not?

5 JUSTICE ARBOUR: It is derivative, as we well know it, as

6 is the criminal law of most former British colonies, of

7 British common law and is in particular derived from

8 Stephens' Draft Code, which was designed at the end of

9 the 19th century, not adopted in England but adopted

10 very broadly throughout the then British Empire, and

11 therefore the correct reference to this proceeding is

12 not to the law of the United States or any particular

13 feature of that jurisdiction, but indeed is a very

14 broadly used method of compelling attendance and

15 production of evidence throughout countries that share a

16 common law background.

17 I will merely add that to the extent that it has

18 some reference to the law of the United States, the

19 retrenchment that has been referred to in the United

20 States relates to the use of subpoena for discovery

21 purposes. I do not want to repeat my earlier

22 submissions that the subpoenas that are sought in this

23 particular case relate to the production of evidence for

24 trial purposes. This is not a discovery exercise, so I

25 will distinguish it on that basis.

Page 360

1 Even though the subpoena is a uniquely common

2 law-type mechanism of compellability of evidence, we

3 have made references to various other countries that are

4 not rooted in the common law, such as Spain and France,

5 where analogous powers of compellability are always

6 present. They are analogous merely in the sense that

7 the court has at its disposal means to ensure that it

8 will obtain the evidence. The mechanisms for so

9 achieving are vastly different, but the intent, the

10 spirit of what is achieved, is the same. We have

11 several of these references. One has been made in the

12 case of Germany, and I will merely correct any

13 misconception that might have been reached by that

14 reference in just pointing out, if I may -- that is

15 right. The reference was made to an exception in German

16 criminal procedure law respecting the filing in court of

17 official state documents. That, in fact, is the

18 provision that relates to any kind of national security

19 exception. What we have submitted in our material is

20 the broader scope under German criminal procedure law,

21 which begins at Section 48, which contemplates that

22 witnesses are to be summoned to give their evidence. It

23 also contains what I have alluded to as probably a

24 desirable practice of ensuring that the summons contains

25 a reference to the legal consequence of failure to

Page 361

1 appear, but the German Procedural Code then carries on

2 indeed to state that even the President of the Federal

3 Republic is compellable to give evidence, although it

4 provides for a different mechanism for his or her

5 evidence to be taken. Then it provides for a

6 consequence of failure to appear and so on, which

7 contains penal consequences, as it tends to do in most

8 legal systems.

9 The form, in my submission, of the order that has

10 been issued in this case is entirely provided for in the

11 Rules, and the substance is entirely provided for by the

12 Security Council in the Resolution creating this

13 Tribunal. The Republic of Croatia through its counsel

14 this morning conceded the Tribunal's power to compel the

15 attendance of witnesses.

16 Now, that being the case, and we have made

17 submissions that there is an indistinguishable power to

18 compel the evidence from the state based on the

19 obligation of the state to comply with the Tribunal's

20 order, and a Decision, of course, by the Tribunal that

21 the order is indeed required for an expeditious and fair

22 disposal of the case, now that being so, I submit that

23 there is no basis upon which to distinguish and put

24 so-called high state officials in any different category

25 than all other natural persons. In my submission

Page 362

1 persons and states share the same obligation.

2 The only issue is: who shares in the different

3 penalty or enforcement mechanism? There is no reason to

4 suggest that the state has any immunity from compliance

5 to pass down to its officials. It is not immune from

6 compliance. It may be immune under the current regime

7 that we have from seeing itself the target of the

8 imposition of a fine, for instance, because nothing in

9 the rules so provides, but it is certainly not immune

10 from compliance. Therefore, it has no such immunity to

11 pass to its officials. Therefore, in my submission, all

12 share in the same duty to comply, and all natural

13 persons should be treated the same way when it comes to

14 mechanisms of enforcement.

15 I also wish to point out that neither, as far as

16 I could tell, in international law nor in any other

17 basis is there such a category as "high government

18 officials." If there was to be a difference of

19 treatment, it would have to be a difference of treatment

20 that would fall upon government agents, all public

21 servants. There is no legal distinction that would

22 guarantee a difference in treatment in a government

23 official holding a particular rank in the system, as far

24 as I can ascertain.

25 JUDGE McDONALD: Excuse me. Just one moment. Is it fair

Page 363

1 to an individual who happens to be the Director of

2 Security -- I am just making up a title -- is it fair to

3 him to be penalised, subject to potential imprisonment

4 and a significant fine, when his state cannot be fined?

5 Do you understand what I mean? You issue a subpoena to

6 the state and they say: "We will not comply". You

7 say: "Thank you. We will go to the Security Council

8 and ask them to put that on the agenda". Then with the

9 individual we find him in contempt, sentence him to six

10 months and fine him $10,000 and he says: "Well, you

11 know, I could not do anything. I am only the director

12 of ..." -- whatever I said he was -- "I am the Director

13 of Security". It seems a little unfair, does it not?

14 JUSTICE ARBOUR: It seems so unfair I would not contemplate

15 that this Tribunal would reach that conclusion. If a

16 government official appeared before the court in

17 response to a subpoena and made that statement, that

18 is: "I did not bring the documents and I cannot give

19 you any evidence, because my government will not allow

20 me to do so", it may very well be that the Tribunal in

21 fairness would say -- would refrain from exercising any

22 more duress on that person, and then put the blame where

23 it lies, on the government. That is one option.

24 JUDGE JAN: It would not be contumacious refusal. It is

25 the contumacious refusal which is punishable.

Page 364

1 JUSTICE ARBOUR: That is right. It is the disrespect of

2 the court and bringing the court into disrepute. It

3 could be considered -- that is essentially the point --

4 as any other excuse. It may or may not in a given case

5 have sufficient credibility and weight to excuse the

6 person from the failure, but the failure, in my

7 submission, would not be contumacious if the person was

8 in an impossibility, either physical or in some sense

9 moral. If the person, for instance, said: "You could

10 either put me in jail here for six months, or I will go

11 home and get the documents and serve six months there

12 for violating domestic law ..." --

13 JUDGE McDONALD: You are assuming this is a world where

14 people are allowed to move freely and impediments are

15 not placed on their movements. I would imagine, if I

16 were the Director of Security and a subpoena was

17 addressed to the Deputy Director, that that Deputy

18 Director would not come. He would not appear. So that

19 Deputy Director would never have the opportunity to come

20 to this Tribunal and explain: "I would have complied

21 but my supervisor would not allow me". What we are

22 doing then is in his absence holding him in contempt,

23 fining him and putting potentially very significant

24 restriction on his future liberty. He may want to take

25 a trip to Switzerland and he might have difficulty doing

Page 365

1 that, simply because he is obeying his boss, but his

2 boss is not only telling him: "Do not produce, but you

3 do not leave this country", which does not seem too

4 far-fetched to me.

5 JUSTICE ARBOUR: Well, again I submitted yesterday that it

6 certainly would not be wise practice, even assuming that

7 that is what the rules contemplate, to proceed to a

8 finding of contempt and the imposition of a penalty in

9 the absence of the witness. In my submission the best

10 practice is to then issue a second order compelling the

11 state to produce the witness. That may be called

12 issuing a warrant for arrest. It could be called

13 issuing a request for the state to assist the Tribunal

14 in bringing one of its citizens to the jurisdiction of

15 the Tribunal, and to leave it at that, thereby not

16 having to face this kind of dilemma and visiting the

17 responsibility then where it really lies, on the state.

18 JUDGE McDONALD: Are we making then too much of this? What

19 do you, since you are the party -- and the defence also

20 asked for documents to be produced -- do you really

21 expect to get anything from this as a practical matter

22 in the face of a recalcitrant state, or are we just

23 arguing very interesting intellectual points that have

24 resulted in thirteen amici briefs and famous professors

25 appearing? Are you really going to get anything if the

Page 366

1 state does not want to comply? You will say that we do

2 not have the power to fine the state or hold them in

3 contempt, but instead just report to the Security

4 Council. You say if the Deputy Director of Security

5 does not appear because, of course, the Director is not

6 going to let him come, we would not hold him in

7 contempt. Are we not just spinning our wheels in a

8 sense?

9 JUSTICE ARBOUR: At the end of the day I am not extremely

10 optimistic we would get very much from states who

11 consistently and defiantly refuse to cooperate with the

12 Tribune, and I will have to concede that much, but that

13 would not be a reason, in my submission, to shy away

14 from an interpretation of the Statute that is entirely

15 open to this Tribunal to find, and frankly there may be

16 some considerable gains in addressing the subpoena to

17 the custodians of the documents in question, some of

18 which -- some of whom may be willing to come to the

19 Tribunal, even at the risk of resigning their functions,

20 or at some personal consequences in the same way --

21 maybe more dramatically so -- in the same way, I submit,

22 that witnesses are called to come to give their evidence

23 in a criminal forum, who, left to their own device and

24 completely left alone, might very well choose not to do

25 so. There are grave and sometimes adverse consequences

Page 367

1 felt by witnesses as a result of being compelled to give

2 their testimony. People are compelled to testify

3 against their family members. It can jeopardise

4 personal relationships, professional relationships. It

5 may be disadvantageous in many respects, and yet we

6 certainly would not yield the compellability power

7 because of these reasons.

8 So, in my submission, the fact that there may be

9 many circumstances in which a high government official

10 or any other government official might be reluctant to

11 defy the orders by his state to refuse to comply with an

12 order would not be sufficient for this Tribunal to

13 abdicate a power that it, in fact, should be asserting

14 very vigorously.

15 JUDGE McDONALD: It might also enable the Tribunal, should

16 it adopt such a procedure and should it be -- but I am

17 very optimistic -- that states -- should it be that

18 states again fail to comply, it may be a way to advise

19 the Security Council with greater specificity just what

20 is happening rather than a simple report of

21 non-compliance of failure to execute an arrest warrant.

22 Instead it would be a report to the Security Council,

23 assuming this is part of the package, that: "We have

24 attempted to discharge our judicial functions. We have

25 had someone in custody for 12 months and here we are

Page 368

1 being pulled back and forth by a state, or two states,

2 or three states because of their refusal to provide what

3 both parties contend are documents that are essential to

4 the trial". Meanwhile a person sits with his liberty

5 curtailed, which is a very serious matter.

6 JUSTICE ARBOUR: Indeed I think one could view that as an

7 escalation of non-compliance from an official to an act

8 of commission. It is one thing for a state merely to

9 not comply with an order; it would be another matter

10 altogether for the Tribunal to report to the Security

11 Council that a state is not only not complying with

12 orders issued to it but is actually taking active

13 positive steps to prevent government employees from

14 complying with the orders. So I think it would

15 aggravate the illegality of the action.

16 JUDGE McDONALD: We have gone past our time normally for

17 recess, because we were so involved in the discussion,

18 and I have been rightfully advised it is time for us to

19 recess for twenty minutes. We will recess until 4.30.

20 (4.10pm)

21 (Short break)

22 (4.30pm)

23 JUDGE ODIO BENITO: Madam Arbour, before going further

24 I would like to ask you something. I have been listening

25 about the difficulty that the Croatian Government has

Page 369

1 with the use of the world "subpoena" and even worse with

2 the expression "subpoena duces tecum". I would like to

3 ask you your opinion about this. As you know better

4 than that, we have two working languages in this

5 Tribunal, and the Article 54 in French has different

6 words. It says "ordinances, citations a comparaitre,

7 assignations". Do you not think that perhaps if you

8 issue a text in French instead of English the problem

9 could be solved? It is an idea. I am trying to be

10 helpful.

11 JUSTICE ARBOUR: Indeed it is extremely helpful to find the

12 French version, particularly since the word

13 "assignations" is also found in the French Code of

14 Criminal Procedure dealing with not all methods of

15 compelling attendance of witnesses but certainly dealing

16 with -- "assignations a comparaitre" is an expression

17 that is found in that legislative instrument.

18 I should point out, however, I am somewhat puzzled

19 at the suggestion that the expression "subpoena duces

20 tecum" is English. It is Latin. One might have found

21 exactly the same one in all languages. In any event,

22 the position I take with that is that it is an

23 expression that is found in the Rules, and it is an

24 error to read into that word a whole legal content that

25 may come from one or another particular national

Page 370

1 jurisdiction. The fact that in French it is called

2 "assignation" I think shows it does not necessarily by

3 its mere terminology contain the threat of the

4 imposition of a penalty.

5 However, my ultimate submission on that point is

6 that there is, in fact, a penalty for non-compliance,

7 one that is probably much more effective when applied

8 against a state than a fine would be, even a substantial

9 fine, and that is the public denunciation of the failure

10 to comply. It is absolutely clear that before reporting

11 to the Security Council, this Tribunal would make the

12 finding of fact, and in my submission the finding of

13 fact would be binding on the Security Council, that

14 there is non-compliance with a validly issued order by

15 this Tribunal. So there would not be any possible

16 debate in the Security Council as to what occurred.

17 There could be or could not be some debate as to what

18 could be done about it. In my submission that is a

19 penalty, if it is to be characterised as such, that is

20 actually not inadequate concerning a state, but it

21 certainly reinforces my submission that we cannot read

22 anything into the usage of a particular expression. It

23 has to be read in context.

24 My final submission deals with the issue --

25 follows from my previous submissions dealing with the

Page 371

1 compellability of state officials, and I have to say

2 that we have explored in these two days of arguments

3 several possible scenarios. The one that I think would

4 have never had a sufficient air of reality to be

5 contemplated is the one we are actually facing today

6 before this Tribunal, that is the case where a state

7 asserts its intention to comply and concedes that it is

8 bound by the orders issued by the Tribunal, and yet its

9 Minister of Defence refuses, or so it appears, to obey

10 by the order, a situation that I would have thought

11 might have been difficult to contemplate, if we were not

12 actually facing it.

13 To the extent that there is any difference between

14 a natural person and a natural person who has an

15 official capacity, and I certainly do not concede that

16 there is any such distinction, but if there was one, it

17 would be, in my submission, entirely inapplicable to the

18 Minister of Defence of Bosnia-Herzegovina, since his own

19 state does not purport to confer upon him any possible

20 immunity that it may have asserted it had -- quite the

21 opposite: the state concedes that it is bound and

22 presumably -- not presumably -- admittedly it concedes

23 that its officials are also bound to comply with the

24 orders of this Tribunal. So quite apart from the

25 question of law, as a matter of fact in this case it is

Page 372

1 my submission that the Minister of Defence for the state

2 of Bosnia and Herzegovina, his submissions cannot

3 prevail.

4 My final submission, just in conclusion, is that

5 issues of enforcement are not dispositive of issues of

6 entitlement. That fact that there may be some perceived

7 difficulties in fact or in law in having proper

8 enforcement mechanisms should not drive the analysis of

9 whether or not this court should have the power that all

10 criminal courts must have to compel testimonial and

11 documentary evidence. So to the extent that there may

12 be any concern with enforcement powers, it should be

13 analysed completely separately and certainly should not

14 lead to a conclusion that the compellability powers

15 should be somewhat diluted in that respect.

16 Unless you have any questions, these are my

17 submissions.

18 JUDGE McDONALD: We have no questions. Thank you.

19 Mr Rivkin?

20 Rebuttal presentation by Mr Rivkin

21 MR RIVKIN: I would like to thank you, Madam Chairperson

22 and all your Honours, for your extreme indulgence in

23 structuring flexible procedures. We

24 certainly appreciate that. I also wanted to mention --

25 and I will try to be brief -- however, given a couple of

Page 373

1 points raised by the Prosecutor, His Excellency,

2 Professor Simonovic, wanted to make a couple of brief

3 remarks.

4 We were frankly rather puzzled by the Prosecutor's

5 attempt, joined by some of her amici, to recharacterise

6 the issue before the Tribunal. The Prosecutor asked the

7 Tribunal to issue a subpoena duces tecum to Croatia, and

8 she filed a brief, styled a Prosecutor's brief, in

9 support of the subpoena duces tecum. Not being a French

10 speaker, I cannot fully discuss how one can translate

11 "assignation", but let us just say that that is not the

12 language that was used in her document. Let me just

13 briefly cite from her brief. In her brief the

14 Prosecutor characterised the issues before this

15 Honourable Tribunal based on its own March 7 Order as

16 follows:

17 "The power of a judge or Trial Chamber to make the

18 request to issue a subpoena duces tecum to a sovereign

19 state.

20 2. The power of a judge or Trial Chamber" --

21 excuse me. There is an obviously conflict between

22 trying to be fast and the translation.

23 JUDGE McDONALD: I want you to take your time. We plan on

24 adjourning at 5.30, but we can go until we finish.

25 MR RIVKIN: Thank you.

Page 374

1 "To make a request to issue a subpoena duces tecum

2 to a high government official or state".

3 Let me also say that the words "high government

4 official or state" was the words used by the Prosecutor.

5 We will be happy to join in the discussion of what are

6 the differences among state officials based on their

7 rank.

8 "3. The appropriate remedies to be taken if there

9 is a non-compliance of a subpoena duces tecum by a judge

10 at Trial Chamber".

11 Prosecutor's brief, pages 4 and 5.

12 JUDGE McDONALD: Actually, Mr Rivkin, I framed those issues

13 and I framed them from the bench. Perhaps if I had had

14 more time, I would have done it with greater clarity,

15 although I am kind of satisfied with those issues. At

16 least those were the issues that I was concerned with at

17 the time. So I framed those issues and directed the

18 parties to brief those issues.

19 MR RIVKIN: Thank you for the clarification, your Honour.

20 Indeed, these are issues we have been addressing

21 ourselves. Nevertheless, at least my impression, with

22 all due respect, having listened to two days of

23 proceedings, is both the Prosecutor and a number of

24 amici are perhaps concerned about the absence of a word

25 "subpoena", and not just "subpoena" but "subpoena duces

Page 375

1 tecum" in the Tribunal's Statute and its Rule. We have

2 heard a lot of discussion that what is really involved

3 here is an order for production of evidence, which, as

4 the Prosecutor assert, the Tribunal can clearly issue.

5 Let me state clearly that Croatia's objection here

6 is not merely to the use of the word "subpoena duces

7 tecum" rather than the word "order". This is not merely

8 a matter of form over substance, and I certainly do not

9 want you to think that we just have inordinate

10 attachment to archaic forms which in may ways went out

11 of our legal system certainly by late 19th century. As

12 we understand it, the Prosecutor claims and continues to

13 claim that the Tribunal has the authority to issue a

14 binding -- we do not have a problem with "binding" --

15 coercive order to Croatia requiring the production of

16 certain documents in its possession, and that if Croatia

17 fails to produce these materials, its officials may be

18 sanctioned for fines or imprisonment. That, of course,

19 is the proper definition of a subpoena duces tecum and

20 that is the definition the Prosecutor herself has cited

21 in her brief.

22 In fact, at page 12 of her brief the Prosecutor

23 defines a subpoena duces tecum as an order "...

24 compelling production of certain specific documents and

25 other items", referring to Black's Law Dictionary, which

Page 376

1 is the definition of a subpoena duces tecum. The

2 question here is precisely whether the process in issue

3 is coercive with respect to a sovereign state.

4 Croatia's position is, and it is only our position, that

5 it may not be.

6 This is the form that the Prosecutor has chosen to

7 adopt and we argue that form matters. This is a court

8 of law, not a therapy session where one is encouraged to

9 express oneself in any way that one finds desirable. In

10 fact, I am puzzled that a number of people, including

11 some amici, have argued as well as the Prosecutor that

12 forms are not that important. I would argue on behalf

13 of our profession that format is a great deal in law and

14 in international law in particular, where protecting the

15 dignity of equal and sovereign states is an important

16 imperative of the first order that is conducive both to

17 the development of international law and to

18 international stability.

19 The Prosecutor now accepts that the Tribunal

20 cannot issue a compulsory order, ie an order backed by

21 coercion as distinct from a legally binding order for

22 production of documents, however it is styled, and it

23 can only issue a request for assistance under Article 29

24 or even an order, but without compulsion involved and

25 frankly we can all go home. We would move that you

Page 377

1 quash the subpoena, rule that the Tribunal cannot issue

2 a subpoena duces tecum. If the Prosecutor or the

3 Tribunal want to issue an order requiring Croatia to

4 produce certain documents, or argues that Croatia has an

5 obligation to comply with such an order, Croatia is

6 willing to work with the Prosecutor in complying with

7 such a request.

8 It is not my intention here to delve into factual

9 issues because, in fact, the way you styled, very

10 properly, this argument, your Honour, it is an argument

11 about matters of law and not fact, but I am compelled to

12 point out nevertheless in light of numerous assertions

13 that have been made that Croatia has already cooperated

14 quite extensively with this Prosecutor and the Tribunal,

15 probably more extensively in Croatia's view than any

16 other state. However, it is our view that neither the

17 Prosecutor nor the Tribunal may compel for the use of

18 coercive process and the imposition of sanctions Croatia

19 to produce the documents in its possession.

20 Let me move on to the next issue. We are also

21 amazed that the Prosecutor in her argument at least for

22 a certain time seemed to confuse subpoena duces tecum

23 and subpoena ad testificandum, and I apologise for my

24 Latin if it is not quite correct. At least as we

25 understand it, a subpoena ad testificandum is merely a

Page 378

1 subpoena to testify. It is a technical and descriptive

2 term for an ordinary subpoena as opposed to the subpoena

3 duces tecum, which commands the production of

4 documents. Again I am citing Black's Law Dictionary.

5 JUDGE McDONALD: One of the amici, I think, cited -- I do

6 not know which one it was -- a reference to -- it was

7 probably in Frowein's brief, where some court had

8 interpreted the two terms and said that one was implicit

9 in the other. I think it was the subpoena to testify --

10 being implicit in that is the subpoena to produce

11 documents. Do you recall that?

12 MR RIVKIN: I do not recall who said it, but yes, I recall

13 that statement. Your Honour, we think -- and we would

14 be happy to brief this issue for you -- we think it is

15 an important distinction. In fact, I would say both

16 subpoena ad testificandum and subpoena duces tecum are

17 two different species, and not to belabour American law,

18 since we have told, quite correctly, that that is the

19 only mother load of all wisdom, in American law there

20 is, nevertheless, I would like to mention, an important

21 difference between having a witness bring several

22 specific documents in his or her possession, so that he

23 or she can be impeached, their memory can be refreshed,

24 versus having a broad in essence fishing expedition

25 dragnet type subpoena, and I would argue that subpoena

Page 379

1 duces tecum emphatically is not the proper legal process

2 for saying: "Please, Mr John and Mr Fred, come to the

3 court room and bring the following tape or bring the

4 following diary entry". That is not the case here.

5 I will just elaborate on that very briefly,

6 because I was just going to get into it. This is a

7 distinction with a difference. As I mentioned, the

8 subpoena ad testificandum is directed at an individual

9 who has or is believed to have personal knowledge about

10 the facts in issue. Croatia, of course, is not an

11 individual and cannot be summoned to give evidence as a

12 witness. The individuals who the Prosecutor seeks to

13 sanction are also not sought as witnesses who may give

14 evidence based upon their personal knowledge.

15 Let me just perhaps in response, your Honour, to

16 your point about blending the common and civil law

17 system say that my only problem, with all due respect to

18 that, is that blending implies that they are two

19 different species of subpoenas and two different systems

20 and they are sort of usage-wise invoked with roughly

21 similar frequency and you are trying to blend them. I

22 do not believe that anyone has argued there is that case

23 at all. You have few jurisdictions that use subpoenas

24 and most of them do not. So it is not a case of

25 blending. To me, with all due respect, if the legal

Page 380

1 process in issue does not partake of the features of a

2 subpoena duces tecum, we should not call it a subpoena

3 duces tecum; otherwise we sort of have an

4 Alice-in-Wonderland problem. If there is spare time,

5 I would not give a citation from there, but I am sure

6 you know what I am referring to.

7 One final point here --

8 JUDGE McDONALD: I think it was Mr Condorelli who said that

9 basically this is a blending of criminal concepts and

10 concepts under international law.

11 MR RIVKIN: Right.

12 JUDGE McDONALD: I think that is what he said in his

13 brief. So perhaps that is the blending. So what he was

14 saying is that this concept of a subpoena duces tecum is

15 something that is unknown in international law, but is

16 something that is known in criminal law, and that

17 perhaps the Statute being drafted with some time

18 constraints perhaps combines both concepts, or maybe I

19 am misreading what he said.

20 MR RIVKIN: No, I agree with that statement, your Honour,

21 but perhaps I should add at this point in time that

22 again, mindful of a number of excellent questions you

23 asked, asking -- if I may paraphrase, and correct me if

24 I am wrong -- "What is so special about a subpoena duces

25 tecum? If we are going to take the matter to the

Page 381

1 Security Council, if we styled it as an order, what is

2 the difference?", I would argue again, the word being

3 used in its ordinary, normal usage, there is a certain

4 degree of odiousness, a certain degree of compulsion, a

5 certain degree of coercion that attaches to this

6 particular term, which would not attach to the term

7 "order".

8 In our judgement, using the process when one really

9 means an order addressed to the sovereign state of

10 Croatia is a little bit unfair, because in some ways,

11 irrespective of what is done at the Security Council

12 level -- we have no doubt that the Security Council

13 would back this distinguished Tribunal -- it would be

14 difficult to get rid of that odious implication. Let us

15 say, for example, you chose not to take the matter up to

16 the Security Council. Having used that term, again from

17 my own perspective, it is certainly prejudicial in a

18 court of public opinion.

19 Again not to be too parochial here, but I would

20 remind you of a number of statements made by people,

21 like the case of Secretary Donovan in the Reagan

22 administration, who, after being acquitted of all the

23 charges by the independent council, said rather

24 mournfully: "Where do I get my reputation back?"

25 It is a situation where there is a degree of

Page 382

1 sanction, a degree of opprobrium here that the state of

2 Croatia would never be able to fully eradicate, no

3 matter what happens. That is indeed one manifestation

4 of a problem of using this very specific term.

5 If I may proceed, in our opinion the real reason,

6 and not a very good reason, why the term subpoena duces

7 tecum is used is because the Prosecutor understands very

8 well that styling something as an order addressed to a

9 sovereign state presents a real problem of imposition of

10 individual liability on government officials, and I will

11 be happy to address it in a second. However, in most

12 jurisdictions that do use the word subpoena duces tecum,

13 it is in general understood that when such a subpoena is

14 directed at a corporate entity, individual liability may

15 apply. In our view it is not just a matter of

16 formulation. It is a choice designed precisely to get

17 at a result and the appropriate result that in our view

18 the Prosecutor seeks.

19 Again, let me briefly address the question which

20 has been discussed here rather extensively about

21 official capacities and whether or not being a state

22 official is a bar. It is not a bar in any sense either

23 appearing as a witness or as an accused. What we are

24 trying to say is all those duties relate to one's

25 individual conduct. If one is acting in official

Page 383

1 capacity, we find it difficult to understand, and I

2 think I may have mentioned this point earlier. How can

3 you sanction somebody for a conduct that is perfectly

4 legal and perfectly appropriate? In fact, we would

5 argue that an individual's official conduct in some

6 perhaps metaphysical sense is not really the conduct of

7 an individual; it is the conduct of a state. So in the

8 hypothetical which the Prosecutor and you discussed the

9 situation where you have a government official being

10 asked to appear as a government official, and the

11 superior government official telling him not to appear

12 and this individual being put on the horns of a dilemma

13 to decide which way to proceed, is he going to value his

14 personal career above his obligation, to me it is a

15 misnomer. An individual may not appear in his official

16 capacity if his sovereign tells him not to appear,

17 because by virtue of appearing in his official capacity

18 he or she is the sovereign. So if a sovereign tells him

19 not to appear, there is no duty -- I mean, it is not

20 even theoretically possible, but again I will be happy

21 to discuss this point, if you wish. The only way you

22 can have an individual appear is as an individual,

23 because of acts he committed as an individual or

24 knowledge he has as an individual, and in no other way.

25 We have heard a lot of discussions today about

Page 384

1 obligations and the various provisions of the Tribunal's

2 Statute, with Articles 15, 19, 20, 21 being implicated

3 as well as various Rules of the Tribunal, particularly

4 Rules 54 and 77. I would argue that even the most

5 tortured reading of these provisions does not support

6 the Prosecutor's original demand for the issuance of a

7 compulsory process in the form of a subpoena duces tecum

8 against the sovereign state. In any case, as I think we

9 have tried to argue, these provisions, as well as the

10 others that have been discussed, cannot be construed in

11 isolation.

12 With all due respect to the principle of

13 effectiveness, I think the overarching principle of

14 legal construction of any document has to be done in the

15 context of an overall grant of authority to a Tribunal,

16 which itself must be construed within the overall

17 structure of the UN Charter, which in turn has to be

18 construed within the body of existing international

19 law.

20 In that regard I would also remind you that even

21 the United States' constitution, which we certainly take

22 very seriously, is construed within the context of

23 certain pre-existing legal authorities, the common law

24 of England, etc, etc.

25 In that regard we believe that the Prosecutor has

Page 385

1 made three separate but essentially unsupportable

2 assertions. Firstly, the Prosecutor correctly pointed

3 out that there are no specific proscriptions in the

4 Tribunal's Statute that forbid the issue of a subpoena

5 duces tecum. We agree. That is perfectly clear. The

6 Statute itself does not mention that particular

7 process. However, we do not believe that the Prosecutor

8 can correctly imply from this that the Tribunal has the

9 power to issue a subpoena duces tecum. This is not a

10 correct inference. The Tribunal is not a prerogative

11 court, like English courts of the Star Chamber or High

12 Commission. Rather, it is a court of limited

13 jurisdiction and power, established by the Security

14 Council for a specific purpose and object.

15 Under Article 1 of the Tribunal's statute its

16 competence is limited to:

17 "Power to prosecute persons responsible for

18 serious violations of international humanitarian law

19 committed in the territory of the former Yugoslavia

20 since 1991 in accordance with the provisions of the

21 present statute".

22 If the Statute does not confer particular power

23 upon the Tribunal, then the presumption must be the

24 Tribunal does not have such a power. I will be happy to

25 --

Page 386

1 JUDGE McDONALD: Mr Rivkin, suppose it was a high

2 governmental official, whatever that means -- but we

3 have all been using the term, I suppose, with some

4 mutual understanding -- interferes with or intimidates a

5 witness. 77(C) allows for the Tribunal explicitly to

6 hold that person in contempt.

7 MR RIVKIN: If I may, your Honour -- I do not want to

8 interrupt you, of course -- absolutely, because the

9 first point here would be that you have the power

10 explicitly, but more importantly, and again perhaps it

11 is a legal and philosophical matter, intimidation of

12 witnesses cannot possibly be within the province of

13 official duty of any official. It is like saying: what

14 if you have a government official that commits burglary

15 or rapes somebody? Obviously those actions can never be

16 a part of the official conduct of any sovereign, so you

17 have got it.

18 JUDGE McDONALD: Well, our subject matter jurisdiction

19 speaks to command responsibilities -- let us not argue

20 that point, but let us suppose a high governmental

21 official interferes with a witness, and he has a

22 significant position.

23 MR RIVKIN: With all due respect, your Honour --

24 JUDGE McDONALD: We can hold him in contempt, can we not?

25 MR RIVKIN: Yes.

Page 387

1 JUDGE McDONALD: Even if he is acting as an agent of the

2 state, we can hold him in contempt.

3 MR RIVKIN: Your Honour, I would argue that anybody acting

4 that way cannot act as an agent of a state because

5 certain actions -- as a matter of fact, if you look at

6 Hughes and Bellow and International Law, Warren, and

7 various protocols that have been codified, acting in

8 that way is not an official act. Therefore your

9 official status is no bar to it. Common law crimes,

10 which certainly include intimidation of witnesses, can

11 never be a part of one's official duties.

12 My answer to you is you are absolutely on solid

13 grounds, your Honour, for two reasons. First of all,

14 you have specific language to deal with it, but, more

15 importantly, that is not an act of a sovereign.

16 JUDGE McDONALD: If, for example, a captain was carrying

17 out a design of his state for the annexation of a

18 portion of another state, he would not be carrying out

19 the design of the sovereign?

20 MR RIVKIN: I would argue that --

21 JUDGE McDONALD: And pursuant to that design, that plan, he

22 intimidates or threatens a witness.

23 MR RIVKIN: If I may, I would argue, your Honour, that it

24 is pretty well-established that a conduct of that nature

25 is unlawful under international law. Following orders

Page 388

1 or acting as an agent of your sovereign is no defence

2 indeed. Again, perhaps, it is an epistemological

3 problem, but I would argue that anybody acting in a way

4 that is clearly understood to violate the law of nations

5 is not acting in official capacity. What he has

6 received is an illegal order. That is, I believe, the

7 holding of the judges in Nuremberg. That is the view

8 incorporated into German law, that basically if you

9 receive an order from your superior, but it is an

10 unlawful -- that asks you to violate the law of war, of

11 which humanitarian international law is certainly a

12 part, you have not received a valid order. It is ultra

13 vires, just like having the Tribunal issue an invalid

14 order is ultra vires. So we never really get into a

15 problem in this area. May I continue?

16 JUDGE McDONALD: You may continue. You should visit us,

17 I suppose, as we proceed with some of our trials and see

18 how we fare, but you may continue.

19 MR RIVKIN: Thank you. Under the Prosecutor's reasoning --

20 I am just trying to connect to my last point. Because

21 the Statute does not allow a Tribunal to involve the

22 Security Council's power to use military force against

23 the state, it must be assumed the Tribunal has such

24 power. In fact, there are courts that do have a power.

25 They have marshalls assigned to them. They have a power

Page 389

1 to compel production of witnesses. There are courts

2 that do not care how witnesses or accused get there.

3 Some courts do. Some courts would not allow somebody --

4 as I am sure you know, your Honour, there is a serious

5 problem in some US courts where people, for example,

6 from Mexico have been illegally seized and brought

7 before them, and some courts have taken the view: "We do

8 not care how people got here. As long as you are here,

9 that is fine". Other courts have not. All I am trying

10 to say is that the power to use some direct form of

11 coercion is not unknown to some tribunals.

12 Are we to infer that the Tribunal has this power

13 because the Statute does not expressly bar it? Again,

14 in my opinion, that stands reason on its head. In fact,

15 in our judgement it is particularly important to reject

16 the Prosecutor's assertions, because the power being

17 claimed here is the power to coerce sovereign states

18 here for legal process and sanctions, which is the most

19 fundamental matter and the very highest of the Security

20 Council's own prerogatives. It should not be touched

21 lightly.

22 To the extent that the Security Council -- and

23 perhaps I am just sort of restating the same point --

24 wanted to give this power to the Tribunal, given the

25 nature of this power, it surely would have stated so

Page 390

1 with a degree of explicitness that probably would have

2 caused us all not to be here today.

3 Second, the Prosecutor continues to assert that

4 the Tribunal must have a power to issue a subpoena duces

5 tecum, because without this power, it would not be

6 effective, and the Security Council wanted the Tribunal

7 to be effective. I would argue, however, and again I do

8 not want to get too much into a factual discussion, that

9 the Prosecutor has failed to show why the Tribunal would

10 be ineffective if it did not have this power.

11 Listening to some of the questions asked by your

12 Honours, my only answer is it surprises me why we have

13 to look at things in very binary black and white terms.

14 It is as if a Tribunal is either perfectly ineffectual,

15 completely unable to proceed, or completely effectual.

16 In fact, there are a lot of gradations in between.

17 I would argue that your own record today demonstrates

18 that you have been effectual, having indicted a number

19 of people, having conducted a number of trials. I

20 understand, and I do not want to be presumptuous to

21 argue that things are proceeding as you would have

22 liked, but there is certainly no --

23 JUDGE McDONALD: I am not even going to respond to that.

24 I could not begin to tell you my feelings about that,

25 but what I wanted to comment on -- I was trying not to

Page 391

1 interrupt you -- Rule 54 was amended on January 30th,

2 1995, and we have many people who watch the Tribunal and

3 write Articles. Professors write articles about what we

4 do. The persons in the Legal Office of the United

5 Nations write articles about what we do and the Rules

6 that we draft. I have not seen any articles that have

7 addressed this subpoena -- the adoption of the amendment

8 in January of 1995. Have you? I would think, assuming

9 that people are interested in what we are doing, and

10 there are some people, that if it was so outrageous that

11 some academicians and perhaps even some people in the

12 Legal Office in the UN would have said: "Now, wait a

13 minute! Where did you get that power?" Really I have

14 no idea whether things have been written about it. Do

15 you know? Not that it makes a difference, because, you

16 know, we read our press with the same, I suppose, degree

17 that anyone in the public reads the press. Have you

18 seen anything?

19 MR RIVKIN: I have not, your Honour, and while I would not

20 presume to tell you a great deal how to construe your

21 own Rules, it seems to me again, coming from an American

22 tradition, reading the Rules, that the word "subpoenas"

23 and "summonses" and "orders" clearly applies -- or at

24 least is not flagged as to apply to the states. That is

25 the only problem that perhaps somewhat pedantically we

Page 392

1 keep coming back to. I would argue that if you

2 promulgated a Rule, with all due respect to your Honour,

3 that specifically stated that subpoena duces tecum would

4 lie against the state, you would see a great deal of

5 commentary on this issue. So perhaps people have not

6 fully appreciated how the word "subpoena" in Rule 54

7 could be constrained.


9 MR RIVKIN: Again perhaps I am being unfair in

10 re-characterising what the Prosecutor is trying to say,

11 but again I do not fully appreciate the black and white

12 zero sum game nature of the situation. I think what the

13 Prosecutor is really saying, and actually factually

14 I agree with her, that if the Tribunal had the power to

15 issue a subpoena duces tecum, it would be more

16 effective. This may or may not be true; it probably is

17 true, but this is not a legal argument. Indeed, I think

18 that this is not even an argument of necessity. It is

19 an argument of expediency. With all due respect to the

20 Prosecutor, I would not rank this argument as one that

21 should find much hospitality in most courts of law.

22 Clearly the Tribunal could be much more

23 effective if it assumed any number of new corrosive

24 powers not specifically granted to it by the Security

25 Council. I am very mindful of all the things about how

Page 393

1 busy the Security Council is, as described by various

2 amici. For example, the Tribunal's work would be much

3 easier and more effective therefore to issue binding

4 orders to states, and I do not mean state -- orders to

5 produce documents, but if you issued orders to states

6 that are members of SFOR, with troops now in

7 Bosnia-Herzegovina, requiring them to apprehend and

8 transport to The Hague certain major indicted war

9 criminals who have been thumbing their nose at the

10 international community, such people as Karadzic and

11 Ladic, under the Prosecutor's logic the Tribunal clearly

12 would have such a power, since the Security Council did

13 not deny this power in the Statute. Maybe it is worth

14 considering.

15 JUDGE McDONALD: We do have binding authority. I thought

16 we had that binding authority.

17 MR RIVKIN: Legally coercive orders to those troops.

18 Probably again if one is to read the papers and believe

19 what is there, there have been a number of encounters

20 between the troops of various SFOR members in

21 Bosnia-Herzegovina, where people who are clearly on the

22 list drive past checkpoints and no efforts have been

23 made to apprehend them. Maybe you should command that

24 they be seized and issue the order to those people.

25 JUDGE McDONALD: We have issued arrest warrants and we asked

Page 394

1 for states to execute those. In some instances when

2 states have failed to do that, we have then reported

3 their failure of cooperation to the Security Council,

4 and that has been the penalty that we imposed. We did

5 not go out and seize them ourselves, if that is,

6 I think, what you are suggesting.

7 MR RIVKIN: Right. Right. Moreover, despite the

8 Prosecutor's claims that the Security Council has

9 delegated the full plenitude of its powers to the

10 Tribunal so that it may be effective, I would argue that

11 there is no evidence either in the language of the

12 Tribunal's Statute or in the Resolutions or other

13 discussions surrounding the Tribunal's creation that the

14 Security Council purported to vest this Tribunal of all

15 the Chapter 7 powers.

16 JUDGE McDONALD: I do not think the Prosecutor takes that

17 position. We will hear from the Prosecutor. That was a

18 question that I asked to several people. I did not hear

19 that.

20 MR RIVKIN: In that case I stand corrected, but let me just

21 say then that there is no support for the proposition

22 that the Security Council intended to vest the Tribunal

23 of the most awesome of its powers, which is the taking

24 of coercive action against the sovereign state.

25 Indeed, it is far from clear to us, and I promise

Page 395

1 we will not get into a long discussion of how Chapter 7

2 works, but let me at least say that it is far from clear

3 that the Security Council could have made such a

4 delegation, since Chapter 7 of the UN Charter provides

5 that it is the Security Council that may decide upon the

6 measures necessary to address a threat to peace.

7 I also note, and again if I mischaracterise what

8 the Prosecutor said, please correct me, but I believe

9 the Prosecutor actually suggests that not only has the

10 Security Council vested the Tribunal with several of its

11 awesome powers, but the Tribunal is also not subject to

12 authority or control of the Security Council with regard

13 to the performance of its judicial functions. I have no

14 problem as long as those functions are judicial. To me

15 and many other experts in international law exerting

16 coercion against sovereign states is essentially not a

17 judicial action. It is, of course, a legal action in so

18 far as it is undertaken in conformity with Chapter 7 of

19 the UN Charter, to which all UN members have subscribed,

20 surrendered the portion of their sovereignty. None of

21 us has any problem with that proposition, but I would

22 not argue it is a judicial power. It is not a judicial

23 power in the sense that there is no recourse --

24 THE INTERPRETER: Could counsel please slow down a bit?

25 JUDGE ODIO BENITO: Could you please slow down?

Page 396

1 JUDGE McDONALD: You must slow down. I am listening to you

2 so much I apologise for not noticing the interpreters.

3 MR RIVKIN: I apologise. I get carried away.

4 JUDGE McDONALD: If you are not in the middle of a

5 sentence, let me ask you a question. When the Security

6 Council dispenses UNPROFOR, that is an enforcement

7 measure; is that not so?

8 MR RIVKIN: It is.

9 JUDGE McDONALD: They despatch them, send them somewhere

10 and tell them: "You are the enforcement measure. Help

11 to bring about peace". Do they supervise their

12 activities and make any check on them to see whether

13 they should take a left turn, a right turn, whether they

14 truly should go into a particular community, that kind

15 of action, or do they tell them: "You get the job

16 done"?

17 MR RIVKIN: Your Honour, they certainly do get the job

18 done. In other circumstances I might be very tempted to

19 discuss the delegation doctrine, certainly as it arose

20 in American courts, but I would argue that there is a

21 fundamental difference between delegating certainly a

22 coercive/executive power to somebody else's troops,

23 troops of a sovereign state that are serving under a UN

24 flag, and telling them to do whatever is necessary -- in

25 your hypothetical, which village to go to -- and

Page 397

1 endowing the Tribunal, which is a judicial body, a very

2 powerful judicial body, but with all due respect a

3 judicial body, with non-judicial powers, because to me

4 -- and we will be happy to brief it in greater detail

5 -- most international law scholars would believe it an

6 agreeable proposition that taking coercive action

7 against the sovereign state is a political, military

8 exercise, not a judicial exercise. Making a state

9 subject to legal duty is, of course, a judicial

10 exercise. The coercive element is not.

11 JUDGE McDONALD: Again reporting to the Security Council is

12 a penalty of sorts. We have many citations in the

13 briefs from the amici that even the pronouncement of

14 non-cooperation is in itself a penalty. That is the

15 power that we have taken upon ourselves and I do not

16 think you challenged that.

17 MR RIVKIN: No. Your Honour, with all due respect, of

18 course we did not challenge your power to report people

19 to the Security Council, but let me emphasise again that

20 the circumstances and the form of that report is quite

21 important. We feel, of course, there is a considerable

22 amount of let me just say penalty that would go at least

23 in the court of public opinion with you referring any

24 state for non-complying behaviour to the Security

25 Council. We do feel that styling the circumstances or

Page 398

1 characterising the circumstances that give rise to that

2 referral as a failure to respond to subpoena duces

3 tecum, which is understood at least in the

4 English-speaking world to be a very specific, very

5 coercive form of process, creates an undue hardship that

6 the Security Council did not contemplate.

7 JUDGE McDONALD: All of this sounds to me like a political

8 argument. It sounds to me, although I have not observed

9 the Security Council, I suppose, with the regularity

10 that Miss Wedgwood has --

11 MR RIFKIN: Which I do not claim, your Honour.

12 JUDGE McDONALD: There is much discussion about, you know,

13 what you call someone, how you end a letter, even, how

14 you begin the letter, and again I was looking -- I

15 thought I said it was paragraph 28 of the Secretary

16 General's report, where he says -- and I heard what

17 Mr Malanczuk said about the status of the report -- but

18 he says that:

19 "The Security Council is establishing an

20 enforcement measure under Chapter 7, a subsidiary order

21 within the terms of Article 29 of the Chapter but a

22 judicial one. This organ would, of course, have to

23 perform its functions independently of political

24 considerations".

25 That is why, for example, in the many hearings

Page 399

1 that we have had on the subpoena with respect to

2 Bosnia-Herzegovina, when I hear counsel tell me: "If

3 you write him a letter, he will come", well, that is not

4 something that courts engage in. That is something that

5 is left for the political arena. We issue orders and we

6 issue orders that have to be complied with. Now we may

7 not have the power to penalise a state, but if we have

8 the power to report non-compliance with a state, it

9 seems to me it is appropriate for us to do that. We may

10 be obligated, if we were in the political arena, to

11 begin our letters with: "His or Her Excellency" and end

12 it: "You have my best ...", however the letters are

13 ended, but that is not the way we operate. I do not

14 think that I should be called upon to write a letter to

15 Mr Jelanic, to put it very straightforward, because we

16 are a judicial institution.

17 MR RIVKIN: Your Honour, if I may, I find absolutely --

18 I cannot in any way disagree with the very cogent words

19 you just used.

20 JUDGE McDONALD: What I say is if we were to issue a

21 subpoena, it is not that we mean any disrespect in the

22 political sense. It is just that what we mean is that

23 it is subject to a penalty, which may be reporting to

24 the Security Council, and if that is not appreciated by

25 people in the political world, that may be unfortunate.

Page 400

1 Maybe there needs to be an education process.

2 MR RIVKIN: Your Honour, if I may, again with all due

3 respect, what you have just said reminds me of your

4 question to one of the amici, if I am not mistaken,

5 about why not strip the word "subpoena duces tecum" of

6 this unfortunate connotation that it is inherently --

7 well, that it has coercive character vis-à-vis its

8 recipient, and again we are only talking about states.

9 Why not tell people that this is really nothing more

10 than just a form of order? I guess I would appeal to a

11 very common sense argument. Why use a term of art that

12 has acquired certain connotations for centuries of usage

13 if you are not using it the way the term of art is

14 used? Why not use the word "order"? Again, aside from

15 the issue of liability of individual state officials of

16 whatever rank, and I will deal with it shortly, we would

17 not be here, your Honour, if what was in issue was an

18 order issued to the sovereign state of Croatia. Again,

19 I will certainly leave it to your discretion if you want

20 to call it request for assistance or an order. How

21 politely it is phrased, those are not legal issues; they

22 are prudential issues. Of course, you are seized as a

23 Tribunal of a power to issue an order and not say:

24 "Please come here and talk to us". We would not go

25 very far and I certainly do not put myself in the same

Page 401

1 category as one of the counsel for the defence you are

2 referring to.

3 JUDGE McDONALD: I think you say that the Prosecutor has

4 not a sinister but a real motive for using the word

5 "subpoena". Would you repeat that again? I guess it

6 is to go to the individuals.

7 MR RIVKIN: In my judgement, again given the way the term

8 "subpoena duces tecum" has been used and has operated

9 in those jurisdictions that have invoked it, using it

10 gives you the unique benefit that at least it does not

11 seem illogical to suggest individual responsibility. If

12 you style something, your Honour, as an order to the

13 sovereign state of Croatia at least at the rhetorical,

14 perceptual, declaratory level, whatever you want to call

15 it, the leap of faith that one needs to buy into to get

16 to a liability of state officials qua officials is quite

17 a bit higher. I certainly do not want to impugn the

18 Prosecutor's motives but it is a logical inference that

19 the choice of the process here was not accidental. It

20 was meant precisely to make it easier to hold state

21 officials personally liable in their official capacity.

22 That is my only point.

23 I would actually disperse with some of our

24 remarks, because you already elicited some of the

25 information out of me through your very probing

Page 402

1 questions.

2 Our only point is that again if a state, any

3 state, fails to comply with your order, which that state

4 and all states have a legal duty to, your recourse,

5 discretionary judgement on your part, because I believe

6 you do not, as we all agree -- it is not that you have a

7 duty to report it to the Security Council, but you

8 certainly have a power to report it to the Security

9 Council; indeed it is the only recourse. Let me just

10 say that perhaps, again in response to a parade of

11 horribles that was mentioned by one of the amici as to

12 you having to pop in and out of various proceedings to

13 deal with this or that specific subpoena, that would not

14 be the natural course of conduct for any trial court.

15 You can do an interlocutory appeal type step. You can

16 go to the Security Council and ask them to clarify/vest

17 you with the power to issue subpoenas. If the Security

18 Council does it in its wisdom, then there will be no

19 reason to quibble about it in the course of individual

20 trials. I do not think that it is very a realistic

21 action to postulate, your Honour, that the only

22 alternative is to have this matter come repeatedly to a

23 very busy Security Council.

24 We move briefly to the third point. In our

25 judgement the Prosecutor has also argued, incorrectly,

Page 403

1 that the power to issue a subpoena duces tecum to a

2 state can be predicated upon the right to a fair trial

3 founded upon the Tribunal Statute. Again we feel that

4 the Tribunal Statute must be read in full and in

5 context. If you do not have a power under the Statute

6 to issue subpoenas duces tecum, you do not have that

7 power under all of the provisions of that Statute. It

8 certainly would be anomalous to say the Tribunal did not

9 vest you with that power generically, but you somehow

10 can infer it from people's right to have a fair trial,

11 and again if I can fall for just a second on American

12 experiences, you know from your own experience, your

13 Honour, the United States places enormous --

14 THE INTERPRETER: Can the counsel please slow down?

15 MR RIVKIN: -- stock on the opportunity of the accused to get

16 a fair trial. I mean, most criminal lawyers would tell

17 you, and you know it very well, that we would rather

18 have a situation where 100 guilty parties go free than

19 one innocent person gets accused. However, the right to

20 receive a fair trial is an important imperative and the

21 one you ultimately satisfy. In my judgement, if I may

22 just -- you have not asked me that question

23 specifically, but I heard you ask it to several amici --

24 if you are presented with a situation where you have --

25 JUDGE JAN: You were going too fast for the interpreters.

Page 404

1 MR RIVKIN: Forgive me. I will try to slow myself down.

2 If you have a plethora of evidence against the given

3 accused, and you are satisfied as triers of fact that

4 that evidence is sufficient, and the accused comes in

5 and says: "There is some exculpatory document somewhere

6 out in the universe. Please get it for me", I would not

7 be surprised if you would proceed forthwith and convict

8 such an individual. On the other hand, if it is your

9 view that the Prosecutor's case is sketchy, fragmentary

10 and key pieces of evidence are lacking, then in the

11 exercise of your judicial discretion you may decide to

12 proceed otherwise.

13 I guess my point is that you never have under any

14 circumstances, even in domestic courts, a perfect access

15 to all the evidence. That is no inherent bar to the

16 ability to receive a fair trial, because I have infinite

17 faith in your wisdom, sitting as a trial court, to look

18 at the evidence and decide what is the fair way to

19 proceed. So again I do not see how getting 100 per cent

20 of all the evidence available out there in the universe

21 is an indispensable indicia of getting a fair trial.

22 Several other matters very briefly. Again people

23 have backed off a little bit from the use of the word

24 "culprit state", but I try not to get hung up on that.

25 Nevertheless I believe that from the prospective of

Page 405

1 Croatia or any sovereign state it is very disturbing to

2 see efforts to create an artificial distinction between

3 Croatia's obligation to cooperate with the Tribunal and

4 obligations of all other states.

5 Again since the Prosecutor -- correct me if I am

6 wrong -- does not seem to claim any more that Croatia is

7 a culprit state, and we have not heard much about the

8 distinction between coercive and mandatory powers, I

9 will not dwell on it, except to say that the Security

10 Council has not determined that Croatia poses a threat

11 to peace. In none of the Security Council Resolutions

12 leading to the establishment of the Tribunal is Croatia

13 identified either as an aggressor state or a threat to

14 peace. I do not believe it could have been so

15 identified given the facts involved, etc, etc.

16 In fact, again just a brief reminder that the

17 Resolution 827 that established the Tribunal stated in

18 the plainest possible language that all states should

19 cooperate equally with the Tribunal. It did not single

20 out any state or group of states for specific treatment.

21 I will spare reading this provision, since I am sure

22 everybody knows this by heart, but our view is, and we

23 would very much like to get this point clarified, that

24 under the founding documents of the Tribunal Croatia has

25 exactly the same rights and responsibilities as each

Page 406

1 member state of the United Nations to cooperate, comply,

2 respond, assist, whatever words your Honours would like

3 to use.

4 Consequently, if the Tribunal can require Croatia

5 to comply with a subpoena duces tecum, it can require

6 each and every other state to comply with such form of

7 process, again whether it is at the request of a

8 Prosecution or of a Defence, or even sua sponte, as you

9 see fit to discharge your very wise rule regarding the

10 right to fair trial. We see no particular differences

11 among any of those subpoenas. If one fails, all should

12 fail; if one stands, all should stand.

13 Let me again respond perhaps in somewhat of a flip

14 side of this argument, that suggestions by the

15 Prosecutor and several of the amici that Croatia's

16 nation security considerations and imperatives may be

17 assessed and balanced by the Tribunal, we do not believe

18 those considerations are founded. In fact, we see it as

19 somewhat of a specific manifestation of a more general

20 troubling assertion that the duties involved, although

21 it is sufficiently distinct, are different here.

22 Well, in general, since we believe the Tribunal

23 lacks the power to issue a subpoena duces tecum, while

24 the discussions about national security exceptions are

25 quite serious, I am sure your Honour would agree with me

Page 407

1 that if the issue of a first order is answered in the

2 negative, you do not even need to get to an exception,

3 because for an exception to apply, you have to find that

4 this form of process against the sovereign state is

5 appropriate.

6 Second, a number of people have mentioned the

7 balancing performed by national courts and national

8 security claims. We have read with interest discussions

9 about CIPA and the way to balance national security

10 considerations and criminal trials. We feel they are

11 entirely inappropriate here, and perhaps I am not just

12 reiterating the point that I actually heard you elicit

13 in one of the questions. The situations are completely

14 different, because in all of the national court cases

15 the only proper issue is who makes the binding decision

16 for the sovereign as to which way things ought to be

17 balanced? In some state systems it can be the court.

18 In another it can be the Parliament. In a third one it

19 can be the President. They are all really different

20 manifestations, different components of a same

21 sovereign, so you never have a problem. The sovereign

22 makes the decision. The sovereign does not coerce

23 himself, although I gladly acknowledge the somewhat

24 special problem posed in the American system by

25 independent counsel.

Page 408

1 This is manifestly not the case here. In fact, if

2 I remember correctly, your Honour, you at least asked

3 one of the amici the question: "Is it true that a

4 Tribunal, an International Tribunal, for that reason has

5 inherently less of an ability to balance those

6 considerations than a domestic court?" My answer is

7 unequivocally "yes".

8 My next point is that Croatia quite seriously

9 resents the implication that it cannot properly balance

10 its own national security needs with the imperatives of

11 bringing to justice those who have perpetrated crimes

12 against international norms in the former Yugoslavia.

13 We think it is exactly the reverse. In fact, Croatia

14 has far more interest than most states in seeing that

15 all the individuals guilty of such crimes are brought to

16 justice. Unlike the United States, Britain, France,

17 Russia or most member states of the international

18 community, Croatia and her citizens were victims of an

19 aggression and war crimes that are the subject of this

20 Tribunal's jurisdiction.

21 Moreover, I would hazard a guess that, as a young

22 state, Croatia is particularly desirous of demonstrating

23 how seriously it takes its obligations to cooperate in

24 international fora, provided appropriate forms and norms

25 of international law are observed. So to the extent

Page 409

1 that Croatia ever invokes its national security

2 considerations in responding to a legitimate request or

3 properly styled order, it would do so for the most

4 compelling reasons. It certainly would not do any less

5 than any other sovereign state.

6 Let me briefly conclude by making just a couple of

7 points. Again perhaps I am reiterating what other amici

8 and counsel have said. We urge you to consider

9 carefully the serious nature of the issues before you

10 now, and we certainly commend you both for proceeding in

11 a very deliberative and cautious and judicial manner,

12 for having this hearing for a quite protracted time,

13 inviting a number of distinguished amici. At stake here

14 is not merely the progress of this prosecution -- it is

15 important, of course, but it is only one imperative --

16 nor even the success of this Tribunal, which is

17 enormously important but is not the only imperative in

18 this world. I wanted to clarify because the Prosecutor

19 took some umbrage at that.

20 Why is it our position that allowing -- the

21 Tribunal judging itself as being seized of this power

22 that is not expressly vested in it by the Security

23 Council, why is it bad for the future of international

24 law, and this is a pragmatic argument, your Honour, but

25 if you may indulge me, I would hazard a guess that no

Page 410

1 state, large or small, presented with a situation in the

2 future would agree, however they described their reasons

3 for it, to the establishment of a Tribunal that may so

4 exceed the explicit textural parameters of its grant,

5 and in my judgement, since the work of this Tribunal and

6 other similar Tribunals is enormously important to the

7 future of international law, the fact that the states

8 would be very reluctant to resort to this instrument is

9 going to make things considerably worse.

10 By the same token, to the extent that Tribunals

11 like yours play a very important role in promoting

12 international stability as the instruments of a

13 reconciliation, I think we are talking about enormously

14 serious adverse consequences. I really do not see this

15 as a conflict between a dedicated internationalist, who

16 wants to enlarge international laws domain, and some

17 sticklers to archaic processes and forms, who are

18 standing in the way. I see this debate, if it is

19 resolved in the proper way, as something that most

20 people who feel seriously about international law ought

21 to support.

22 I just wanted, before I turn it over to His

23 Excellency Mr Simonovic, to just very briefly mention at

24 least, because again I think you raised it several

25 times, your Honour, that as far as the Dayton Agreement

Page 411

1 is concerned, our view is very simple. Article 9 of the

2 Dayton Accord did not enlarge the caveat, qualify or

3 alter the duties established by the Security Council

4 under Resolution 827. I would believe that it is quite

5 common in international practice to repeat the same

6 obligation. In fact, the Security Council itself does

7 it with considerable regularity. We believe that to

8 argue otherwise amounts to an argument that Croatia or

9 other members -- other signatories to Dayton have

10 somehow surrendered their sovereignty or limited their

11 sovereignty.

12 One final point, if I may be allowed to. I just

13 wanted to make a very quick response to a point by one

14 of the distinguished amici regarding the argument that,

15 since Herceg-Bosna was not a state, how can a state

16 claim that the documents that perhaps originated in that

17 state are properly its documents? I think your Honour

18 knows very well from your experience as an American

19 judge that what controls here is the substance of the

20 documents. In fact, in the American system, and I

21 believe other systems, you have documents generated by

22 government consultants, contractors, even private

23 parties, that a government can properly classify and

24 regard as state interest. There is a famous case where

25 somebody on his own came up with a design for an atomic

Page 412

1 weapon. That information was suppressed and classified

2 and treated as information produced by somebody in the

3 Defence Ministry. So it is the substance that controls

4 here. I do not view the status of Herceg-Bosna or any

5 issue here as of any consequence.

6 Thank you very much, your Honour.

7 JUDGE McDONALD: Ambassador Simonovic?

8 Rebuttal Presentation by Mr Simonovic

9 MR SIMONOVIC: Thank you very much. First I would refer to

10 the Dayton Agreement. I am especially related to

11 Dayton, because I assisted in its delivery at Dayton.

12 Some things that have been said concerning Dayton worry

13 me, because they are contrary both to the letter and to

14 the spirit of the Dayton Agreement.

15 First, let us resort to the letter of the Dayton

16 Agreement. What I intend to do is to read literally all

17 related to International Criminal Court -- to the

18 Tribunal related in the text of the Dayton Agreement:

19 "The parties shall cooperate fully with all

20 entries involved in the implementation of this peace

21 settlement as described in the annexes to this

22 agreement, or which are otherwise authorised by the

23 United Nations Security Council, pursuant to the

24 obligation of all parties to cooperate in this

25 investigation and prosecution of war crimes and other

Page 413

1 violations of international humanitarian law".

2 That is it. There is not a single letter about

3 the Tribunal in the framework agreement nor in any of

4 the annexes. That is it. There is not a word "special

5 obligation of the parties". There is no "unconditional

6 cooperation", nothing. It just says:

7 " ... pursuant to the obligation of all parties".

8 So just referring to the already existing

9 obligation of parties, not creating any new obligation.

10 That might not worry me that much as that the idea of

11 limiting the sovereignty is totally contrary to anything

12 we were doing in Dayton. Dayton should be blamed for

13 many things, but not for that. The whole idea of Dayton

14 was to resurrect a state, to enable it to function with

15 the help of the international community, to help Bosnia

16 to regain its sovereignty, and not to limit sovereignty

17 of the states that were present in Dayton.

18 In fact, there has been a notion that there were

19 some military arrangements that were reducing

20 sovereignty in Dayton, and the only arrangement that

21 existed was Annex 1B of the Dayton framework agreement,

22 and I represented Croatia as the head of the delegation

23 on negotiation on that particular annex, so I am rather

24 familiar with it. The content of Annex 1B is just to

25 make a balance between forces in the territory of the

Page 414

1 states participating in the Dayton Agreement, but not

2 because of limiting of their sovereign rights, but

3 because it has been done in whole Europe after the end

4 of the Cold War and has not been done in Yugoslavia,

5 because it was neither east nor west; so just

6 participating in something that has already been

7 achieved in Europe. So either it is a limitation of

8 sovereignty of all European states, or it is not a

9 limitation of sovereignty of Croatia and other states as

10 well.

11 Now, your Excellency, let me conclude by

12 reiterating how much the Government of Croatia

13 appreciates your decision to organise this hearing and

14 to invite very respectable amici curiae to participate.

15 It is a clear proof of openness of the court to

16 reconsider even its own decisions. This hearing has

17 proved not only that this court has many friends, many

18 distinguished amici curiae, but also that those friends,

19 at least most of them, are real friends of the court,

20 friends who are willing to say also from time to time

21 something that might be unpleasant, including to give a

22 warning to the court of limitation of its powers.

23 There has been an issue raised concerning duty of

24 Croatia not only to cooperate but also to comply. It is

25 out of question. Croatia has both a duty to cooperate

Page 415

1 and to comply, although it is much more pleasant to hear

2 about cooperation than the need to comply, and I would

3 like to emphasise that the work of Tribunal is, whatever

4 we say, to quite an extent related to the successfulness

5 of cooperation, which I believe shall improve and become

6 even better. Just as an illustration, after subpoena

7 that has been issued against the Government of Croatia

8 has been transformed into request or order, Croatian

9 started to fulfil its obligations, its duty contained --

10 it started to deliver the documents that were asked for

11 and shall continue to do so.

12 On the issue that has also been raised concerning

13 all powers needed for the court to be efficient, we have

14 said a lot, but I will just reduce myself to the very

15 principle of the rule of law, which exactly means power,

16 but power within the limitation of the law.

17 Finally, I would like to condense the position of

18 Croatia concerning the issue of subpoena. Our position

19 is that the Tribunal should reject the subpoena and the

20 use of subpoenas, because they are legally unfounded

21 neither in Statute nor on the international law, and,

22 secondly, if the Tribunal finds that it cannot be

23 efficient without subpoena, it should turn to the

24 Security Council not necessarily, since we heard it is a

25 busy place and it really is, every time and each time,

Page 416

1 but ask for the amendment of the Statute. Thank you,

2 your Honour.

3 JUDGE McDONALD: If the Statute were amended and the word

4 "subpoena" was put in there by the Security Council --

5 the Secretary-General and adopted by the Security

6 Council, would that be a problem under international

7 law, as you see it?

8 MR SIMONOVIC: I am not authorised for such a speculation,

9 but if Security Council would deliberate in this manner,

10 I do not think that it would, but take it conditionally

11 and just as an academic statement.

12 JUDGE McDONALD: What do you think, Mr Rivkin?

13 MR RIVKIN: I would say that it would -- I hate to

14 speculate, but, on the other hand, my personal opinion

15 would be that it would not be a violation of

16 international law, because by definition the Security

17 Council's powers acting as constitutor are almost

18 unlimited, but I would argue, though, that it would not

19 necessarily be a judicial --

20 JUDGE McDONALD: Judicial issue.

21 MR RIVKIN: It would not necessarily alter international

22 law, because again it is almost extra legal in nature,

23 in a sense of a sudden jolt, if you will, to the body of

24 international law.

25 JUDGE McDONALD: The reason I ask you is not to ask you to

Page 417

1 speculate. It is just to determine what is the real

2 source of your objection. The source is that it is not

3 contained in the Statute.

4 MR RIVKIN: Indeed, and as a number of individuals have

5 pointed out to your Honour, by virtue of the UN Charter

6 to which every member has subscribed, the Security

7 Council is vested with this enormous power to do almost

8 anything.

9 JUDGE McDONALD: Thank you. Madam Prosecutor?

10 JUSTICE ARBOUR: I have nothing to say in reply, your

11 Honour. Thank you very much.

12 THE INTERPRETER: Microphone, please.

13 JUDGE McDONALD: Mr Crawford?

14 PROFESSOR CRAWFORD: If the Prosecutor has nothing to say,

15 your Honour, I have nothing either.

16 JUDGE McDONALD: I am sorry. Mr Crawford? The Prosecutor

17 has nothing to add. Mr Crawford?

18 Mr Hayman, I still do not know exactly where you

19 fit into this scheme, but you are sitting on this side,

20 you or Mr Nobilo, do you have anything to add?

21 MR HAYMAN: No, your Honour:

22 JUDGE McDONALD: All right. Thank you. I apologise. Miss

23 Vidovic, do you have anything to add?

24 MME VIDOVIC: No, your Honour, nothing further.

25 JUDGE McDONALD: Miss Glumac?

Page 418

1 MS GLUMAC: No, thank you.

2 JUDGE McDONALD: Mr Rivkin, from listening to the

3 presentation and reading the brief, it appears that

4 Professor -- I do not know who wrote the brief --

5 Josipovic probably authored the brief, listening to his

6 preparation, and in the letter that was written by

7 Mr Jelanic, whom I have never met -- he is the gentleman

8 who has been given the responsibility for cooperating

9 with the Tribunal. I never met him, but in any case he

10 has written me several letters, and in the letter he

11 wrote he reserved the opportunity to make additional

12 written submissions. Do you wish to make an addition

13 written submission, Mr Rivkin?

14 MR RIVKIN: Yes, your Honour, subject to such --

15 JUDGE McDONALD: How long do you need -- subject to what? I

16 am sorry.

17 MR RIVKIN: I was just going to say subject to your

18 inherent power with which we do not quibble to prescribe

19 the size, style and the number of days to prepare it.

20 JUDGE McDONALD: How long do you think you would need? How

21 does ten days sound? Fifteen days? Where are you

22 from?

23 MR RIVKIN: Washington DC.

24 JUDGE McDONALD: So you have to go back to Washington. How

25 much time do you want?

Page 419

1 MR RIVKIN: A month would be ideal, your Honour, but we are

2 happy to settle for whatever you can grant us. Maybe

3 something between two weeks and a month.

4 JUDGE McDONALD: If you made a submission, I imagine

5 I would have to give the prosecution an opportunity to

6 reply to that. I do not know how much time they would

7 need. They would need to see your submission. I do

8 want to hear from you on this point, Mr Hayman. I do

9 not know exactly how to fashion it. When I entered my

10 order the first time, I directed both parties to file

11 their briefs by April 1st and the replies by the 11th,

12 as I recall. The Prosecution has reminded me that

13 Croatia is the moving party, and actually I incorrectly

14 began with the Prosecutor; I should have began with

15 Croatia. What do you suggest, Mr Rivkin?

16 MR RIVKIN: Your Honour, I think we will be quite pleased

17 if we could receive three weeks, say 100 page

18 limitation, and I would even undertake, since you

19 mentioned this Tribunal being quite flexible, I would

20 even undertake to provide an early draft to the

21 Prosecution at an earlier time, so the final polishing

22 stage need not prevent them from proceeding with their

23 response. We take the documents we file seriously.

24 There is some time involved in checking citations and

25 making sure everything looks ...

Page 420


2 MR RIVKIN: I would say that we can provide -- while it is

3 an unusual procedure, if both sides agree, we can

4 provide a brief to the Prosecution within two weeks.

5 JUDGE McDONALD: I am sorry, Mr Rivkin.

6 MR RIVKIN: I was just saying while it is an unusual

7 procedure, I do not see a problem if both sides agree.

8 We can only certainly provide the gist of our brief to

9 the Prosecution within two weeks, with a final brief due

10 in three weeks, say.

11 JUDGE McDONALD: How much time would you need to submit a

12 reply, assuming you received it in two weeks?

13 JUSTICE ARBOUR: Your Honour, we are in the midst of

14 litigation. There will be a status conference in this

15 matter tomorrow, I believe. It will be my submission

16 after two days of hearing and very extensive submissions

17 by a lot of amici in lots of amici briefs that the

18 period of time that is requested is unreasonable in

19 light of the on-going prosecution. I have no particular

20 to any particular land or format but I must record my

21 objection to that period of time. We, of course, have

22 no idea what to anticipate, but we would undertake to

23 respond to any new submissions within a week, and

24 I would urge that no more than ten days be allocated to

25 the new submissions.

Page 421

1 JUDGE McDONALD: Now, Mr Hayman, you have submitted a

2 subpoena now that we have. This Chamber has it. As

3 I indicated, I reviewed some time ago the subpoena and

4 the motion that you filed with Judge Jorda and then

5 compared the subpoena that you have now submitted.

6 There are some differences, but we have not signed it,

7 nor have we discussed it with you, because of the

8 challenge that has been made by Croatia, and as well --

9 when I suspended the subpoena to Croatia, the

10 Prosecution has asked that it be reinstated, and

11 I deferred ruling on that until we rule on this issue.

12 I am thinking, and I often think out loud and

13 sometimes I am sorry about it, I wonder perhaps if we

14 could go ahead with the subpoena that you have

15 submitted, at least get it in the works.

16 MR HAYMAN: I have two concerns, your Honour. One is that

17 my subpoena request not be held hostage by Mr Rivkin's

18 request or by any other further briefing that may occur

19 in this matter. I concur with the words of the

20 Prosecutor that after two days of hearing -- certainly

21 General Blaskic has been very patient and defence

22 counsel has been very patient. This is his case. He

23 filed a request for a subpoena in February of this year,

24 and it has awaited these scholarly proceedings, which we

25 are not saying were unnecessary, but his --

Page 422

1 JUDGE McDONALD: No, it has not, Mr Hayman. He filed it.

2 It was then submitted to Judge Jorda. You had a status

3 conference on it and then, as I have said, you have

4 submitted a new subpoena. The subpoena we have is not

5 the one that you submitted to Judge Jorda, and we need

6 to spend some time with you, or Judge Jan needs to.

7 MR HAYMAN: Your Honour, we submitted a supplement. I

8 would not characterise it as a new subpoena. It is new

9 material to be supplemented.

10 JUDGE McDONALD: Rather than using such potential

11 inflammatory terms, let us see if we can solve the

12 problem. This is what I am thinking. I am thinking

13 that if we could get your subpoena going, so to speak --

14 I am just thinking out loud -- if you can meet with

15 Judge Jan, perhaps he can sign the subpoena, but he

16 still has to resolve the same kind of matters that I may

17 have to resolve if I sign a subpoena, at least get it in

18 the works -- that is what is important to you. He is

19 ready to meet with you tomorrow.

20 MR HAYMAN: It is very important. My first concern is that

21 our request not be --

22 JUDGE McDONALD: Held hostage.

23 MR HAYMAN: -- delayed or held hostage to further briefing,

24 etc, and it seems to me there is no reason because of

25 the position taken by the representative of

Page 423

1 Bosnia-Herzegovina.

2 JUDGE McDONALD: Exactly.

3 JUDGE JAN: I am just wondering. The objection today is

4 mainly to the use of the word "subpoena", but probably

5 it is being said orders can be issued. Instead of

6 "subpoena" we put "order" is issued.

7 JUDGE McDONALD: Bosnia-Herzegovina does not have an

8 objection. I do not see why we cannot get yours going.

9 MR HAYMAN: I have no particular affection for any

10 particular term. So we are not bound to any term.

11 JUDGE JAN: Any form of process.

12 MR HAYMAN: Yes.

13 JUDGE McDONALD: Is there any objection -- then, of course,

14 the Prosecution has filed a motion to reinstate the

15 subpoena addressed to Croatia, and I have no idea where

16 you are in terms of the exchange of documents. What you

17 said was that you have needed the subpoena in force in

18 order to get the documents.

19 JUSTICE ARBOUR: That is our position, your Honour.

20 JUDGE McDONALD: I imagine -- I was a judge before and this

21 was the most distasteful task of everything that I ever

22 had to do and that was to resolve discovery -- we will

23 call them discovery -- I know you do not call it

24 discovery dispute, but in essence there is a request and

25 then there is a response, and then you go back and

Page 424

1 forth, but maybe I can sit down with the two of you,

2 that is the Prosecution and Croatia, whomever the lawyer

3 would be, and see where you are on this. Perhaps I can

4 help to get you together.

5 Mr Hayman, you can sit down. I think we can

6 resolve yours.

7 MR HAYMAN: I had two concerns. I can sit down --

8 JUDGE McDONALD: Go ahead. Give us your second concern.

9 MR HAYMAN: The second concern, your Honour, is we have a

10 trial setting conference tomorrow morning, and I do not

11 think it would be appropriate for the Prosecutor to seek

12 any delay in the trial date for General Blaskic based on

13 the pendency of this matter. I cannot see after a year

14 how they could claim this subpoena is material. If they

15 would, I think it is very important for this Trial

16 Chamber to at least bear that possibility in mind, or

17 perhaps wait until tomorrow's hearing to set a time

18 limitation or other schedule for further consideration

19 of this matter, because I would very much regret if the

20 trial date in General Blaskic's case is delayed because

21 of a further briefing schedule in connection with this

22 issue.

23 JUDGE McDONALD: You, though, want action on your subpoena.

24 You began your presentation this morning, I think it

25 was, or was it yesterday -- I think it was this morning

Page 425

1 -- yes, it was this morning -- saying that your client

2 had been prejudiced by this delay in the issuance of the

3 subpoena. Are you ready to go forward without the

4 documents that you have requested?

5 MR HAYMAN: Absolutely. We will start trial next Monday if

6 the Trial Chamber will order it tomorrow, or two weeks,

7 or one week, or ten days. We want to proceed. We have

8 been asking to proceed since last Fall.

9 JUDGE McDONALD: Okay. Then as far as your subpoena

10 request, that will not play a role in your readiness for

11 trial.

12 MR HAYMAN: That is absolutely correct.

13 JUDGE McDONALD: Fine. We will see if we can resolve

14 that. I think Mr Rivkin makes the point, though, when

15 he says that this issue goes -- of course -- the primary

16 issue is General Blaskic, because he is the one who is

17 in custody. He has been in custody 12 months, however,

18 and it seems to me that we should approach this issue

19 very carefully, and I wonder whether if any action that

20 we were to take in terms of additional briefing that

21 might result in a month's extension in terms of

22 briefing, that is time for Croatia and time for the

23 Prosecution, whether that in the scheme of things, in

24 the scheme of things really makes a difference,

25 particularly when you have just -- perhaps will just

Page 426

1 issue a subpoena if it is signed.

2 MR HAYMAN: This issue would disappear if the Prosecutor

3 will represent that the pendency of this matter will not

4 be raised at tomorrow's status conference or thereafter

5 as a reason to delay the trial of General Blaskic. If

6 they are in a position to make that representation, then

7 I have no objection to whatever briefing schedule or

8 further proceedings that the court would like to hold on

9 the broader issue of subpoenas, etc.

10 JUDGE McDONALD: Let me tell you. We have to issue a

11 Decision, and I can tell you that as much as I have read

12 already, and I have read a lot, I think that all judges

13 benefit from full briefing, and sometimes the time to

14 issue a Decision is reduced by the amount of assistance

15 that you have. Yes, we have had a lot of assistance and

16 I have read every word, I suppose -- almost -- so

17 I think it might be of some assistance to have the

18 briefing, and it may cut the time down for the

19 Decision. You still have to wait for our Decision. You

20 realise that?

21 MR HAYMAN: For a trial, your Honour?

22 JUDGE McDONALD: You may.

23 MR HAYMAN: I hope not. I would not expect so. The

24 Prosecution did not seek their subpoena until more than

25 a year after the indictment of the case. For them to

Page 427

1 now say, if they so argue tomorrow, that they cannot go

2 to trial because they waited a year to seek a subpoena

3 and then got embroiled in this dispute I think would be

4 outlandish. I am simply asking if the Prosecutor is in

5 a position to represent that they will not raise the

6 pendency of this matter as a reason they cannot proceed

7 to trial expeditiously, I have no objection to any

8 briefing schedule that would be of assistance to the

9 Trial Chamber.

10 JUDGE McDONALD: That is exactly why I did not want to

11 handle this matter. I wanted it to be handled all by

12 the other Trial Chamber. Somehow I draw the black bean

13 always. I do not know what to do.

14 JUSTICE ARBOUR: I may be of assistance.

15 JUDGE McDONALD: I do not really want to put you on the

16 spot at this point, because I do not know what you are

17 going to say.

18 JUSTICE ARBOUR: I may be of assistance. I certainly

19 cannot undertake that we would not make representation

20 that we need the time. As it turns out, we go first

21 and we carry a burden of proof beyond a reasonable

22 doubt. Obviously we are serious about getting these

23 documents. Meanwhile I would be certainly very happy to

24 continue pending the decision and whatever reasonable

25 time is allocated for briefings to continue with the

Page 428

1 Republic of Croatia under the umbrella of the previous

2 arrangement to examine whether compliance can be

3 achieved. I certainly would not want that process to be

4 ...

5 JUDGE McDONALD: Mr Hayman, you may be seated.

6 THE INTERPRETER: Microphone, your Honour, please.

7 JUDGE McDONALD: You may have two weeks to submit

8 additional briefing, Mr Rivkin. Keep in mind that we

9 are more interested in substance than form. So typos,

10 beautiful language is not necessarily important. If you

11 have authorities that you wish us to look at, you must

12 attach those, because we have limited access to

13 authorities.

14 MR RIVKIN: Sure, your Honour.

15 JUDGE McDONALD: Two weeks to submit the brief. If you are

16 able to submit it to the Prosecution in ten days, that

17 would be appreciated.

18 MR RIVKIN: We will undertake to do so.

19 JUDGE McDONALD: The Prosecution will then have ten days

20 after receipt of the first draft, if you receive a first

21 draft, of the brief to submit your reply.

22 Now, as to the trial date, I am not involved in

23 that, but I will volunteer my services to sit with the

24 Prosecution and the lawyer who represents Croatia to see

25 if we can resolve -- if you wish me to -- believe me,

Page 429

1 I have no desire -- if you wish me to resolve the

2 request that you have made, because I have suspended the

3 subpoena, and I understand you are trying to work

4 together. If you want me to be present, I will be

5 present. If not, that is fine with me too.

6 Mr Hayman, I understand that you would object at

7 this time, but what I am telling you once again is

8 giving two weeks and then ten days, that is a month

9 basically, does not mean that our decision would be

10 issued a month earlier than if we had to wait for the

11 briefing. I would hope that with good briefing we are

12 able to expedite the issuance of a Decision. So we may

13 get to that point. Whether it is going to delay your

14 trial, that is something you will have to deal with with

15 Judge Jorda.

16 MR HAYMAN: I have a different comment to make, your

17 Honour. I was not going to comment on the schedule.

18 May I make that comment?


20 MR HAYMAN: That is, given the willingness of

21 Bosnia-Herzegovina to accept the process, I would ask

22 whatever process is set up to facilitate production of

23 documents to the Prosecution, the same process, a

24 parallel process, should be set up on the same schedule

25 as to the Defence's request to Bosnia-Herzegovina.

Page 430

1 JUDGE McDONALD: I will be happy to resolve that as well.

2 That is, if you are having problems obtaining documents

3 from Bosnia-Herzegovina, I would be very happy to sit

4 with you or to do whatever is necessary to help you in

5 that regard.

6 MR HAYMAN: We are obtaining no documents from

7 Bosnia-Herzegovina.

8 JUDGE McDONALD: When you file your subpoena. Maybe you are

9 not following me or I am not following you. I do not

10 want to be involved in this. The only reason is that

11 the subpoena has been suspended as to Croatia. They are

12 now attempting to provide documents on a voluntary

13 basis. If I can facilitate that, I am happy to. I do

14 not know that I need to be involved in your situation

15 yet, because you have not filed --

16 MR HAYMAN: Should I infer from that that our subpoena will

17 issue prior to any ruling on the broader issue by this

18 Trial Chamber?

19 JUDGE McDONALD: It will not not issue because of the legal

20 issue pending. Still Judge Jan will have to make a

21 determination after talking with you and looking ex

22 parte with you, discussing the subpoena.

23 MR HAYMAN: I understand.

24 JUDGE McDONALD: That is a Decision he has to make. The

25 pendency of the issue of whether this Tribunal has the

Page 431

1 power to issue a subpoena will not affect it in any way,

2 because, as you rightly point out, Bosnia-Herzegovina

3 does not object to it.

4 JUDGE JAN: If you do not have the power, the mere fact

5 they do not object will not make the subpoena legal, if

6 you do not have the power. Plainly because the

7 government says they have no objection, how will that

8 make it legal? Examine this question when you come

9 before me tomorrow.

10 MR HAYMAN: We will, your Honour. Thank you.

11 MR RIVKIN: Your Honour, forgive me. May I ask you to

12 clarify if we are talking about 14 days or 14 working

13 days?

14 JUDGE McDONALD: 14 working days.

15 MR RIVKIN: 14 working days from today?

16 JUDGE McDONALD: 14 working days from today. Ten working

17 days from the date that you receive their draft, if it

18 is a draft that is of some substance. Is there anything

19 else?

20 MR RIVKIN: No, your Honour.

21 JUDGE McDONALD: Is there anything else, Prosecutor?

22 JUSTICE ARBOUR: I take it that the draft that triggers our

23 obligation to reply is the final product except for

24 form; is that correct?

25 THE INTERPRETER: Microphone, please.

Page 432

1 JUDGE McDONALD: It has to be one of substance. If you get

2 it and you consider it is not appropriate to trigger a

3 response, then you need to contact me. We will have a

4 representative from Croatia present, we will take a look

5 at it and see whether or not this is something you can

6 respond to. Is there anything further now from the

7 Prosecution?

8 JUSTICE ARBOUR: No, your Honour.

9 JUDGE McDONALD: Mr Hayman? Madame Vidovic?

10 MME VIDOVIC: Your Honour, I will be very brief. So far

11 the Defence of General Blaskic -- and when I say us,

12 I mean Bosnia-Herzegovina -- has still not turned to us

13 for production of any evidence. Had they addressed us,

14 we would have provided the evidence that they asked.

15 I think that we have been cooperative as far as

16 production of evidence is concerned in every case so

17 far, even those that could be seen as exculpatory to

18 General Blaskic. So we have not been asked to produce

19 any evidence, and my understanding is that an order to

20 produce evidence is only issued when a state is not

21 producing it. That is not showing willingness to do

22 so. I would very much like to see what evidence the

23 counsel has in mind and we will not oppose it. All I am

24 trying to say is that in this case, as in all other

25 cases, they can all be resolved in this manner. Thank

Page 433

1 you.

2 JUDGE McDONALD: Perhaps you should make yourself available

3 tomorrow to meet with -- it will be up to Judge Jan --

4 and maybe even with Mr Hayman to see what can be done.

5 Now that is a very issue that Croatia has raised. Do

6 not send a subpoena until you ask for the documents

7 first. We are trying to stay out of that issue if we

8 can. In light of your prior association with the

9 Tribunal, and I have seen you dozens -- not dozens --

10 perhaps a dozen times here in proceedings and in

11 exchanges that we have at the Tribunal, perhaps there is

12 a way, if you meet with Mr Hayman, to expedite the

13 production of some of those documents, but -- excuse me

14 a minute.

15 JUDGE JAN: Yes, Mr Hayman? Do you want to say something?

16 I am prepared to look at your list and give you the

17 documents on their own. You do not need a subpoena.

18 MR HAYMAN: The government has our applications,

19 I presume. They were served on them, I think.

20 JUDGE JAN: That is not so, she is saying. Why do you not

21 meet her first before you see me?

22 MR HAYMAN: I do not think so, your Honour. On the eve of

23 trial? We are happy to try to get the documents

24 cooperatively, but to protect our client's --

25 JUDGE JAN: Why go through this process?

Page 434

1 MR HAYMAN: To protect our client's interests, your Honour,

2 we would pursue a form of compulsion to obtain the

3 documents. Whatever the most compulsive process is that

4 the Tribunal is empowered to use, we need to have it in

5 place going forward to protect our client's interests,

6 given the eve of trial. If it turns out that it is

7 unnecessary in the sense that we do not come to that

8 later bridge, that is great. We will be thrilled, but

9 I think absolutely it is required to protect my client's

10 interests.

11 JUDGE JAN: A list will go to them in any case.

12 MR HAYMAN: It will go to them right now.

13 JUDGE JAN: They will give you these documents. Why go

14 through this process of getting a subpoena issued? They

15 will come to know the documents you want in any case.

16 Why do you want to use the compulsory force of this?

17 MR HAYMAN: My obligation to my client --

18 JUDGE McDONALD: Can I interrupt you just one moment?

19 MR HAYMAN: Yes, please.

20 JUDGE McDONALD: Miss Vidovic, have you seen the subpoena

21 that Mr Hayman wishes to have issued?

22 MME VIDOVIC: I saw it very briefly, very briefly indeed.

23 I was actually told by the Prosecutor's office that it

24 has been served on Bosnia-Herzegovina. I only had a

25 cursory look at it, so I really do not know in detail

Page 435

1 what is contained in it, but I believe that

2 Bosnia-Herzegovina would produce all the evidence in its

3 possession, because so far we have produced all evidence

4 both inculpatory and exculpatory.

5 JUDGE McDONALD: You understand Mr Hayman's position and

6 that is he needs some kind of a court document because

7 he is facing a potential trial date? It may serve you

8 well to provide a copy of the subpoena as soon as we

9 conclude our proceedings on Miss Vidovic, let Miss

10 Vidovic look at it tonight. Tomorrow you are to meet

11 with Judge Jan at 10.15. Is that the time you said?

12 JUDGE JAN: Yes.

13 JUDGE McDONALD: I believe, Miss Vidovic, if you are

14 available tomorrow -- are you available in the morning

15 -- can you make yourself available in the morning?

16 MME VIDOVIC: Yes. I could be here. However, it is a

17 different matter at issue. I need to consult with the

18 proper authorities so that we can determine what

19 documents are in our possession and what are not. In

20 other words, I have to consult with the proper

21 authorities to determine the whereabouts of the

22 documents, and I think that that is a way to accelerate

23 the process, and I think that it may take a shorter

24 period of time than it would take by issuing a

25 subpoena. I think that the position of -- I understand

Page 436

1 the position of the accused and of his counsel, but

2 I would like for an equal balancing handling of the

3 situation so that the interests of the victims are

4 protected as well as the defence of the accused, and

5 this is why I am making this comment. However, we will

6 certainly turn over all documents and produce all the

7 documents required regardless of the decision of this

8 Trial Chamber.

9 JUDGE McDONALD: I think perhaps the two of you need to talk

10 at the end of our proceedings and see what can be done,

11 and, of course, I understand your position that it is

12 the -- you want some official request that would perhaps

13 trigger the time running, and in case there are some

14 things that occur over which you have no control, at

15 least you have your piece of paper signed by a judge

16 saying: "Do it."

17 MR HAYMAN: Yes, your Honour.

18 MR SALAJ: Excuse me, Madam. Just to put the record

19 straight, I think when we had the last hearing on

20 subpoena I pointed out that there was no previous

21 communications to the Government of Croatia before the

22 subpoena to Croatia was issued, just so that we have it

23 in mind.

24 JUDGE McDONALD: I recall that, but now, since we three

25 judges are in the midst of this, perhaps we can

Page 437

1 encourage a different approach, not that it is required,

2 and we are not saying that it is required, but we are

3 just trying to reach a result the best way we can.

4 So do you understand -- I understand your position

5 and I think it is well taken, but perhaps if you talk

6 with Miss Vidovic, perhaps you will be able to get some

7 feel about how documents are maintained, even what

8 documents may exist, that kind of thing. It is a better

9 way to ask for documents, all of those things.

10 MR HAYMAN: I am eager to speak with her, your Honour.

11 JUDGE McDONALD: Those terrible things that you have to deal

12 with.

13 MR HAYMAN: I join in your comments, your Honour.

14 JUDGE McDONALD: Good. Are there any other matters that

15 anyone else wishes to say? Thank you very much. On

16 behalf of the Trial Chamber we want to thank the lawyers

17 in attendance and the amici. It was a very interesting

18 argument. Everyone did a very good job with a very,

19 very difficult issue. Thank you very much. The court

20 is adjourned.


22 (Court adjourned 4.15 p.m.)