IN THE APPEALS CHAMBER
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge David Hunt
Judge Mehmet Güney
Mr Hans Holthuis
1 July 2003
DECISION ON APPLICATION FOR SUBPOENAS
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Accused:
Mr Nenad Petrusic
Mr Norman Sepenuk
1. The appellant Radislav Krstic (“Krstic”) has applied for subpoenas to be issued to two prospective witnesses, requiring each of them to attend at a location (to be nominated) in Bosnia and Herzegovina.1 The purpose of such attendance is to give counsel for Krstic the opportunity to interview them there in anticipation of adding material to his application, already made pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), for the admission of additional evidence in support of his appeal against conviction.
2. The application for the issue of subpoenas is made pursuant to Rule 54, which provides:
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
That Rule applies mutatis mutandis to proceedings in the Appeals Chamber.2 The issues which the application raises are of some significance to the Tribunal’s procedures generally, and for that reason the present Decision is given publicly notwithstanding that the Motion was filed on a confidential basis.3
3. The significance of these issues arises from the fact that, increasingly, applications for the admission on appeal of additional evidence follow the revelation by the prosecution after judgment has been given by the Trial Chamber, pursuant to its continuing obligations of disclosure under Rule 68,4 of witness statements which it had taken from persons with knowledge of the events considered by the Trial Chamber and which – to use a neutral term – are capable of placing those events in a different light.
4. In order to have those statements admitted into evidence on appeal in any such case, the defence is required primarily to establish that, although the statement itself clearly “was not available at trial”,5 the evidence which it reveals was also not available at trial in any form. The defence often seeks to satisfy this requirement by asserting that an attempt had been made before or during the trial to ascertain from such prospective witnesses what evidence they could give, but that the prospective witnesses had either failed or declined to co-operate.
5. However, before additional evidence will be admitted pursuant to Rule 115, the defence is obliged to demonstrate not only that the evidence was not available at trial but also that the evidence could not have been discovered through the exercise of due diligence,6 which means that the defence must show (inter alia) that it made use of –
[…] all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber,7
and that it had brought any difficulties in relation to obtaining evidence on behalf of the accused, including those arising from intimidation or inability to locate witnesses, to the attention of the Trial Chamber.8 This obligation of due diligence is therefore directly relevant to the procedures of the Tribunal (in particular, Rule 54) both before and during trial, as well as on appeal.
6. In response to the application by Krstic in his conviction appeal for the admission of additional evidence pursuant to Rule 115,9 the prosecution submitted, as it does in almost all cases, that due diligence had not been exercised by the defence at the trial. It nominated Rule 54 (making orders that witnesses attend to give evidence) and Rule 71 (taking evidence by way depositions ) as containing the relevant “mechanisms of protection and compulsion” which should have been used by him – but which had not been used by him – either before or during the trial.10
7. Krstic replied to the prosecution’s submission that due diligence had not been exercised by stating that no defence lawyer would compel a witness to give evidence or would attempt to take that witness’s deposition (particularly in the presence of the prosecution) unless the defence had “at least some inkling that the witness had useful information to offer”,11 or would call the witness “cold” without prior information as to what the witness would say.12 Krstic also asserted that relief under Rule 54 would be refused, as not being “necessary” where the witness has refused to be interviewed.13
8. The Appeals Chamber accepts that, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say. That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.14 Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).15
9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadic Rule 115 Decision,16 that the requirement that “all mechanisms of protection and compulsion available ” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it.
10. Rule 54 permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be “necessary […] for the preparation or conduct of the trial”. Such a power clearly includes the possibility of a subpoena being issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed by the defence where that attendance is necessary for the preparation or conduct of the trial. By analogy with applications for access to confidential material produced in other cases (where a legitimate forensic purpose for that access must be shown), an order or a subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown. An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial.17
11. The assessment of the chance that the prospective witness will be able to give information which will materially assist the defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events. The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition – where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.
12. Where the prospective witness had previously been uncooperative with the defence, such a course would obviously be adopted only if the judge or Trial Chamber considered that it was reasonably likely that there would be cooperation if such an order were made. That is not a determination which the defence may safely make for itself. If it were decided by the judge or the Trial Chamber that such a course is unlikely to produce the cooperation sought, or if such an order is made without success, an alternative course could be to make an order or to issue a subpoena pursuant to Rule 54 requiring the prospective witness to appear before the Tribunal, when the judge who issued the order can explain to him the importance of his cooperation to assist in producing a just result in the trial, and how he will be afforded protection by the Tribunal if it is required. If this produces the cooperation sought, the defence can interview him before he is released by the Tribunal, but in private.18
13. In some cases, once the difficulties encountered by the defence have been brought to the attention of the Chamber, it may be that the prosecution, in accordance with its duty to assist the Tribunal to arrive at the truth and to do justice for ( inter alia) the accused,19 will use its own resources and its somewhat more extensive powers (including the power of persuasion) to facilitate an interview directly between the prospective witness and the defence.
14. What must also be emphasised is that the obligation of the defence to report to the Trial Chamber its inability to obtain the cooperation of a prospective witness, to which the Tadic Rule 115 Decision refers, is intended not only as a first step in exercising due diligence but also as a means of self-protection, in that a contemporaneous record then exists that the cooperation of the prospective witness had not been obtained. Such a record avoids the inevitable charge by the prosecution – when the defence later seeks to have additional evidence admitted in an appeal against conviction – that there is no support for the claim by the defence that it had attempted but failed to obtain the cooperation of the prospective witness.
15. Of course, such a report to the Trial Chamber does not by itself satisfy the obligation of due diligence. The defence must also seek relief from the Trial Chamber by which the uncooperative prospective witness will be compelled to cooperate. If the Trial Chamber denies the relief sought from the Tribunal as being inappropriate in the particular case, or (where relief is granted) if all the steps available within the Tribunal prove to be unsuccessful, counsel would, in the usual case, be deemed to have acted with due diligence in relation to that witness.
16. If, as a result of these steps not being followed by the defence in the particular case, due diligence has not been satisfied, the defence will, again in the usual case where additional evidence is tendered in an appeal against conviction pursuant to Rule 115, be required to undertake the additional burden of establishing that the exclusion of the additional evidence would lead to a miscarriage of justice.20
17. Where – as in the present case – an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted. An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness. If those matters are established, then – subject only to one general issue raised by the prosecution in the present case – the appellant would be entitled to the orders which he seeks pursuant to Rule 54.
18. Each of the two prospective witnesses in question in the present application gave a statement to the prosecution after the trial and thus has been cooperative with the prosecution.21 Krstic has argued that the statements indicate that each of these two men has knowledge of issues which are relevant to his appeal, and that it is reasonably likely that further questions of them will elucidate the precise nature of that knowledge. The material provided by Krstic to establish those matters cannot be revealed in this public Decision. The prosecution has very fairly stated that it has no objection in principle to the defence interviewing both prospective witnesses,22 which statement appears clearly (in its context) to accept that such material is sufficient to establish what has been stated as being required for the issue of a subpoena to each of them, subject to the one general issue which the prosecution has raised. The Appeals Chamber (Judge Shahabuddeen dissenting) is satisfied that, subject to that general issue raised by the prosecution, Krstic would be entitled to the issue of the subpoenas he seeks. To the remaining general issue the Appeals Chamber now turns.
19. The prosecution accepts that the Tribunal has power to issue a subpoena to a person to give evidence as a witness or to produce documents where that person obtained the information of which evidence is to be given, or the documents which that person is to produce, as an individual acting in his or her private capacity.23 That concession is correct. In the Blaskic Subpoena Decision,24 the Appeals Chamber held that such a power was an incidental or ancillary jurisdiction conferred by the Tribunal’s Statute.25 The prosecution points out, however, that, at the time of the events concerning which Krstic says that these prospective witnesses might give evidence, each was an officer in the Army of a State or an Entity,26 and that whatever relevant information they may have would have been gained by them in their capacity as State officials and related to their official functions, rather than as individuals acting in their private capacity.27 This appears to be so from the material provided in the Motion and from the statements which the prospective witnesses gave to the prosecution. In those circumstances, the prosecution says, the Chamber “may be limited” in its power to issue a subpoena to them.28 The prosecution bases this submission upon a number of statements made by the Appeals Chamber in the Blaskic Subpoena Decision.
20. The Appeals Chamber stated in the Blaskic Subpoena Decision that a subpoena may be issued to a State official where the information to be provided was gained before he took office as such and where the evidence is unrelated to his “current ” function as a State official,29 or where he gained that information at the time he was a State official but he was not actually exercising his official functions when he gained it.30 In these circumstances, the State official gained the information in his private capacity and not his official capacity. Where, however, he gained the information in the course of exercising his official functions, the Appeals Chamber stated, he enjoys a functional immunity.31 The Appeals Chamber went on to state that any international body such as this Tribunal must take into account the sovereignty of each State,32 that customary international law protects the internal organisation of each sovereign State,33 and that, as State officials are mere instrumentalities in the hands of sovereign States, “there is no practical purpose in singling them out and compelling them to produce documents or in forcing them to appear in court”.34 It dismissed “the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity”.35 In that case, the Appeals Chamber held that, in order to compel the production of certain documents, it was necessary to issue a binding order to the relevant State, pursuant to Article 29 of the Statute, to produce the information required, leaving it to the State to identify the person responsible for providing the State’s compliance with that order.36
21. The prosecution is content that if need be the Motion by Krstic should be treated as seeking the making of such a binding order,37 and it concedes that the requirements to be satisfied before a binding order can be made have been satisfied,38 except perhaps one requirement in relation to one of the prospective witnesses.39 Counsel for Krstic has informed the Appeals Chamber orally that he has not filed a reply to the prosecution’s Response because he does not believe that he can be of any further assistance on this point.
22. It is, however, necessary first to determine whether these statements made by the Appeals Chamber in the Blaskic Subpoena Decision prevent the issue of a subpoena to a witness who is expected to give evidence of what he saw or heard at a time when he was a State official and in the course of exercising his official functions.
23. The Blaskic Subpoena Decision was concerned with the production of documents. The subpoena in question had been directed to the Republic of Croatia and to its incumbent Defence Minister to produce documents. The nature of those documents is not described, but it is reasonably clear from that Decision that the documents concerned were State documents, and that both the State and the Minister of State to whom the subpoena was directed were required to produce them merely as the custodians of those documents. It is common place in the law that, where the documents to be produced are the documents of either a State or a corporation, only the State or the corporation can be required to produce them, and that it is for the State or the corporation to do so through its proper officer. The issue of a subpoena to the Defence Minister to produce the documents would have had to be set aside upon that basis in any event. The decision of the Appeals Chamber that a subpoena could not be directed to a State, but that a binding order to do so should have been sought pursuant to Article 29 of the Tribunal’s Statute, was directed to the production of documents, not to giving evidence.
24. The Blaskic Subpoena Decision did not have to determine, and it was not directly concerned with, the issue of whether a subpoena could be issued to a person to give evidence of what he saw or heard at a time when he was a State official and in the course of exercising his official functions. The justification for the ruling that a subpoena could not be addressed to State officials acting in their official capacity was stated to be that “[s]uch officials are mere instruments of a State and their official action can only be attributed to the State”.40 Such a statement is very relevant to a custodian of State documents, but it is not apt in relation to a State official who can give evidence of something he saw or heard (otherwise, perhaps, than from a State document). Unlike the production of State documents, the State cannot itself provide the evidence which only such a witness could give. The reference to the absence of any “practical purpose […] in compelling [State officials] to produce documents or in forcing them to appear in court” can be relevant solely to State officials who are the custodians of State documents.41
25. The only ruling made by the Appeals Chamber in the Blaskic Subpoena Decision which is directly relevant to a State official who is expected to give evidence of something he saw or heard (otherwise than from a State document) during the course of exercising his official duties is that he enjoys a functional immunity. The existence of such a functional immunity is not in issue in this case. What is in issue in the present Decision is the extent of that functional immunity. The Blaskic Subpoena Decision said this of the existence of that immunity:42
38. The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity. Such officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called “functional immunity”. This is a well-established rule of customary international law going back to the eighteenth and nineteenth centuries,43 restated many times since. More recently, France adopted a position based on that rule in the Rainbow Warrior case.44 The rule was also clearly set out by the Supreme Court of Israel in the Eichmann case.45
The issue is developed subsequently:46
41. […] It is well known that customary international law protects the internal organization of each sovereign State: it leaves it to each sovereign State to determine its internal structure and in particular to designate the individuals acting as State agents or organs. Each sovereign State has the right to issue instructions to its organs, both those operating at the internal level and those operating in the field of international relations, and also to provide for sanctions or other remedies in case of non-compliance with those instructions. The corollary of this exclusive power is that each State is entitled to claim that acts or transactions performed by one of its organs in its official capacity be attributed to the State, so that the individual organ may not be held accountable for those acts or transactions.
The general rule under discussion is well established in international law and is based on the sovereign equality of States (par in parem non habet imperium ). […]
The general rule at issue has been implemented on many occasions, although primarily with regard to its corollary, namely the right of a State to demand for its organs functional immunity from foreign jurisdiction (see above, paragraph 38).47 This rule undoubtedly applies to relations between States inter se. However, it must also be taken into account, and indeed it has always been respected, by international organizations as well as international courts. Whenever such organizations or courts have intended to address recommendations, decisions (in the case of the Security Council acting under Chapter VII of the United Nations Charter) or judicial orders or requests to States, they have refrained from turning to a specific State official; they have issued the recommendation, decision or judicial order to the State as a whole, or to “its authorities”.48 In the case of international courts, they have, of course, addressed their orders or requests through the channel of the State Agent before the court or the competent diplomatic officials.
43. The Appeals Chamber therefore finds that, both under general international law and the Statute itself, Judges or Trial Chambers cannot address binding orders to State officials. Even if one does not go so far as to term the obligation laid down in Article 29 as an obligation of result, as asserted by one of the amici curiae,49 it is indubitable that States, being the addressees of such obligation, have some choice or leeway in identifying the persons responsible for, and the method of, its fulfilment. It is for each such State to determine the internal organs competent to carry out the order. It follows that if a Judge or a Chamber intends to order the production of documents, the seizure of evidence, the arrest of suspects etc, being acts involving action by a State, its organs or officials, they must turn to the relevant State.
26. The reasoning of the Appeals Chamber in the Blaskic Subpoena Decision is that, as the State official has acted on behalf of the State, only the State can be responsible for the acts of that official,50 and that, as a corollary, the State may demand for its State officials (where their acts are attributed only to the State) a “functional immunity from foreign jurisdiction”.51 Such a rule, the Appeals Chamber states, undoubtedly applies to relations between States inter se, but it must be taken into account and has always been respected by, inter alia, international courts.52 All of the authorities which the Appeals Chamber cited in support of the functional immunity upon which it relied relate to an immunity against prosecution. It may be the case (it is unnecessary to decide here) that, between States, such a functional immunity exists against prosecution for those acts, but it would be incorrect to suggest that such an immunity exists in international criminal courts.53 The Charter of the International Military Tribunal in Nuremberg denied such an immunity to “Heads of State or responsible officials in Government Departments”,54 as does this Tribunal’s Statute.55
27. But it is abundantly clear from the passages already quoted from the Blaskic Subpoena Decision, and from pars 23-24, supra, that the statement made in par 38 of that Decision – that “The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity” – can be justified only in relation to the production of documents in their custody in their official capacity. The Appeals Chamber did not say that the functional immunity enjoyed by State officials includes an immunity against being compelled to give evidence of what the official saw or heard in the course of exercising his official functions. Nothing which was said by the Appeals Chamber in the Blaskic Subpoena Decision should be interpreted as giving such an immunity to officials of the nature whose testimony is sought in the present case. No authority for such a proposition has been produced by the prosecution, and none has been found. Such an immunity does not exist. No issue arises for determination in this case as to whether there are different categories of State officials to whom any such immunity may apply, and it is unnecessary to determine such an issue here.
28. Should a State official give evidence before the Tribunal, whether under compulsion or voluntarily, he cannot be compelled to answer any question relating to any information provided under Rule 70, or as to its origin, if he declines to answer on grounds of confidentiality.56 As regards the possibility that the witness may be asked questions which raise issues of national security, a procedure analogous to Rule 54bis may have to be adopted.
29. The Appeals Chamber (Judge Shahabuddeen dissenting) orders that subpoenas be issued requiring the two prospective witnesses identified in the Motion to attend at a location in Bosnia and Herzegovina, and at a time, to be nominated by the Krstic defence after consultation with the prosecution (and, if need be, with the Victims and Witnesses Section), to be interviewed there by the Krstic defence.
Done in English and French, the English text being authoritative.
Dated this 1st day of July 2003,
At The Hague,
Judge Theodor Meron
Judge Shahabuddeen appends a dissenting opinion.
[Seal of the Tribunal]