IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna
Mrs. Dorothee de Sampayo Garrido-Nijgh
18 October 2000
DECISION ON MOTION FOR JUDICIAL ASSISTANCE
TO BE PROVIDED BY SFOR AND OTHERS
The Office of the Prosecutor:
Ms. Nancy Paterson
Counsel for the Accused:
Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric
1. Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the International Tribunal) is a Motion for Judicial Assistance (the Motion) filed by counsel for the accused, Stevan Todorovic, (the Defence) on 24 November 1999. The Motion seeks an Order from the Trial Chamber requesting the assistance of the Stabilisation Force (SFOR), or other military and security forces operating on the territory of Bosnia and Herzegovina, to provide documents and witnesses to the Defence in connection with the transfer of the accused from his residence in the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Tuzla Air Force base in Bosnia and Herzegovina and the arrest of the accused, all alleged to have occurred between 26 and 28 September 1998, for use in the evidentiary hearings as to the legality of that arrest now before the Trial Chamber.
2. On 8 December 1999, the Office of the Prosecutor (Prosecution) filed its response objecting to the relief sought, asserting that the Motion and the related proceedings concerning the legality of the arrest represented nothing more than a legalistic fishing expedition . The Defence filed a reply to this response on 13 December 1999.
3. On 7 March 2000 the Trial Chamber, in response to a further filing by the Defence seeking similar material from the Prosecution, issued an Order requiring the Prosecution to provide copies of relevant reports and other material, including disclosure of the identity of various individuals involved in the transportation to and arrest of the accused at the Tuzla Air Force base. At the same time, the Trial Chamber required the Defence to inform the Trial Chamber of the steps that it had taken to obtain the documents and information from SFOR.
4. Disclosure was made by the Prosecution on 8 May 2000, after an unsuccessful appeal by the Prosecution against the Order. The Prosecution provided only a one-page report about the arrest of the accused, prepared by the investigator who effected the arrest on 27 September 1998, Mr. Ole Brøndum. The Prosecution asserted that , apart from this report, it had none of the designated material within its custody and control.
5. On 20 March and 12 May 2000 the Defence provided details of its attempts to obtain the materials sought directly from SFOR. The Defence produced a copy of a letter from the Office of the Legal Advisor of SFOR, Colonel James M. Coyne, dated 24 March 2000, declining to provide the material sought and stating: It is the position of SFOR that the ICTY has no authority to order SFOR to disclose any information .
6. The Trial Chamber then ordered that the Motion be served on SFOR. A hearing was scheduled for 23 June 2000 and SFOR was notified of the opportunity to file a written response to the Motion and to be heard on the Motion. The Defence filed a Memorandum of Law in Support of Defense Position that SFOR is Subject to ICTY Jurisdiction on 5 June 2000. On 16 June 2000 SFOR sought an extension of time in which to file a written response to the Motion. On 21 June 2000 the Trial Chamber vacated the hearing date and required SFOR to file its reasons for its request for postponement by 28 June 2000. SFOR filed a letter on 28 June 2000 asserting that the Motion presented legal issues that require careful consideration and coordination within SFOR and SHAPE1. Both the Prosecution and the Defence responded to this filing on 30 June and 3 July 2000 respectively .
7. On 7 July 2000 the Trial Chamber granted the extension of time sought by SFOR and rescheduled the hearing on the Motion to 25 July 2000. A written response to the Motion was filed by SFOR on 10 July 2000, followed by further filings from both the Defence and the Prosecution on 17, 25 July and 1 August 2000, and 31 July 2000 , respectively. In its filing of 25 July 2000, the Defence specified the relief it sought, including, for the first time, a request for judicial assistance directed to the United States of America.
8. A hearing on the Motion was held in open session on 25 July 2000 at which SFOR did not appear.
ARGUMENTS OF THE PARTIES
9. The Defence argues that it is entitled to seek assistance in the production of evidence relating to the facts and circumstances of the detention and alleged arrest of the accused. In particular, it seeks2:
(a) attendance of the individual or individuals who transported the accused by helicopter to the Tuzla Air Force base;
(b) attendance of the individual who placed the accused under arrest and served the arrest warrant;
(c) production of the audio and video tapes made on 27 September 1998 of the initial detention and arrest of the accused at the Tuzla Air Force base;
(d) SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused.
10. In its filing of 25 July 20003, the Defence details the exact relief sought as:
(i) an order and subpoena duces tecum directed to the Commanding General of SFOR for the production of:
(a) all pre- and post-arrest operational reports relating to the seizure, abduction and arrest of the accused, including orders as to the movement of personnel;
(b) orders, approvals and logs for the movement of vehicles including helicopters used in such operations;
(c) pre- and post-operation field, operational, movement and headquarters reports, notes , action reports and memoranda relating to the seizure, abduction and arrest of the accused;
(d) audio and video tapes of the seizure, abduction and arrest of the accused;
(e) orders authorising payment and proof of payment to SFOR personnel and to third parties ;
(f) names, rank and serial numbers of SFOR personnel involved in the seizure, abduction and arrest of the accused; and
(g) names and last known addresses of non-SFOR personnel actually involved in the seizure , abduction and arrest of the accused;
(ii) a subpoena ad testificandum directed to the Commanding General Tuzla Air Force base, General Shinseki, and to the SFOR personnel involved in the seizure, abduction and arrest of the accused; and
(iii) a request for judicial assistance directed to the United States of America for the same materials.
11. The Defence asserts4 that individuals serving with SFOR are amenable to compulsory attendance, relying on a Decision of the Appeals Chamber of the International Tribunal in Prosecutor v. Blaskic5. The involvement of SFOR in the alleged abduction is said to be shown by the fact that, after being transported across the border from the Federal Republic of Yugoslavia (Serbia and Montenegro) into Bosnia and Herzegovina, a helicopter arrived within minutes of a radio call to transport the accused to the SFOR base at Tuzla 6.
12. The Defence also asserts that it has described the documents and items sought with sufficient specificity to meet the requirements of the Appeals Chamber Decision in Blaskic. The request is not unduly onerous and sufficient time for compliance may be granted.
13. Further, the Defence argues that, even if SFOR itself is not subject to the jurisdiction of the International Tribunal, the individual member States remain liable and obligated to fulfil all of the obligations undertaken as members of the United Nations and thus to cooperate with the International Tribunal. The Defence suggests that this obviates any need for the Trial Chamber to address the issue of whether SFOR, as an entity, is subject to the jurisdiction of the International Tribunal, as its constituent members clearly are so subject7. The Defence notes that Security Council resolution 1088, of 12 December 19968, which established SFOR, underlines that full cooperation by States and entities with the International Tribunal includes, inter alia, the surrender for trial of all persons indicted by the Tribunal and provision of information to assist in Tribunal investigations.
14. The Prosecution relies upon the arguments raised in previous filings in the proceedings as to the legality of the arrest9. In essence, the Prosecution asserts:
(a) the Motion does not establish any prima facie basis for judicial enquiry;
(b) even if any irregularity in the circumstances of the arrest did exist, it would not justify the relief sought.
15. The Prosecution argues that some international laws are not binding on certain international institutions first, because some international laws are exclusively designed to regulate conduct between states and have no application to international institutions and, second, because of the fact that in the legitimate performance of its functions, the powers of the International Tribunal prevail over traditional concerns of state sovereignty10. In seeking to justify the legality of the arrest, the Prosecution notes that the territorial jurisdiction of the International Tribunal extends throughout the territory of the former Yugoslavia, and so there is no basis to assert any breach of sovereignty . Furthermore, the arrest of persons pursuant to a valid warrant of arrest issued by the International Tribunal does not constitute a breach of sovereignty as, if it did, all other matters, such as investigation and indictment of any accused, holding hearings and detaining accused persons, would also amount to a breach of sovereignty11. The actions taken by the International Tribunal, which would, if conducted by a State, constitute a breach of sovereignty of another State, are specifically authorised under the United Nations Charter.
16. The Prosecution asserts that no credible evidence has been put forward to indicate that members of the Office of the Prosecutor or of any other institution, including SFOR, have violated the rights of the accused. The Prosecution characterises the request as a fishing expedition and requests the Trial Chamber to dismiss not only the Motion but also the underlying challenges to the validity of the arrest 12.
17. The Prosecution also asserts that arrest operations conducted by SFOR clearly involve serious security and other risks to the States concerned, including risks to the lives of personnel involved. The desire of the States and forces concerned to maintain the strictest confidentiality in respect of the operational details of these activities is readily understandable13. The Defence challenged this assertion on the basis that the Prosecution does not represent SFOR in this matter14.
18. In its written submission of 10 July 2000 (the SFOR Submission)15, SFOR has argued: (i) further disclosure is unnecessary because the accused would not be entitled to the relief sought even if the allegations are proven because (a) relevant case law does not mandate release of the accused, (b) the accused is not entitled to the remedy of release from custody, and (c) the accused should not be returned to a State which defies its legal obligations to the International Tribunal ; and (ii) compelling requirements of operational security preclude further disclosure by SFOR concerning the detention of the accused16.
19. SFOR asserts that there is no evidence that any entity connected with the International Tribunal was involved in the alleged abduction and that action by other persons is not a sufficient basis to warrant the accuseds release when the International Tribunal clearly has both subject-matter and personal jurisdiction over him17. SFOR relies upon the Review Decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) in the Barayagwiza case18 to support its contention that release is not justified where the misconduct is not attributable to the Prosecution. SFOR also notes that the decision of the International Tribunal in Dokmanovic19, in which an arrest involving deceptive luring was held to be lawful, does not support the accuseds claim for relief20. In cases addressing the lawfulness of cross-border abductions, some cases uphold a principle that abduction in violation of the law of one State does not divest another of jurisdiction, while others suggest that the courts have a discretion to decline to exercise jurisdiction where the States own agents have been complicit in the abduction. SFOR points out that, in the current case, it is the Office of the Prosecutor , not SFOR, that stands analogous to the agents of a prosecuting State21. SFOR notes that the accused does not challenge the lawfulness of the indictment issued against him nor does he maintain that the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro) could not re-arrest him if returned there. Therefore SFOR argues that the accuseds request for relief rests not on a legal right to be free but on an asserted right to remain a fugitive in a State that flouts its obligations to surrender him22.
20. SFOR then argues that an alleged violation of the domestic law of the Federal Republic of Yugoslavia (Serbia and Montenegro) does not vest in the accused a right to be released from the custody of the International Tribunal, especially as the accused deliberately created a situation in which what he would consider a procedurally regular arrest and transfer was impossible23. Therefore the Trial Chamber is not required to grant the extraordinary remedy of release.
21. Turning to the issue of the return of the accused to a State that is in defiance of its international obligations, SFOR asserts that a ruling that the International Tribunal will not exercise jurisdiction over a person apprehended in the territory of the Federal Republic of Yugoslavia (Serbia and Montenegro) unless the apprehension is conducted in accordance with its domestic law could have far-reaching consequences for the ability of the International Tribunal to try indictees and would, in effect , afford legal recognition to the Federal Republic of Yugoslavia (Serbia and Montenegro ) as a sanctuary for war crimes indictees.
22. SFOR also objects to further disclosure of information concerning the detention of the accused on the ground that it would prejudice important operational security interests and would compromise the security and effectiveness of SFOR forces engaged in detention efforts and the confidential sources of information on which they reply 24. SFOR asserts that, as the accused would not be entitled to the relief sought on any version of the facts, it is unnecessary to order such disclosure25.
23. The Defence responded to the SFOR Submission both in writing and orally. In its written reply of 17 July 2000, the Defence challenges SFORs assertion that it is the Office of the Prosecutor that stands analogous to state officials, asserting instead that it is SFOR, acting pursuant to its mandate from the Security Council of the United Nations, that stands in such a relationship26. The Defence argues that the Security Council has delegated part of its authority and jurisdiction over SFOR to the International Tribunal and that SFOR and its personnel are subject to the jurisdiction, control and supervision of the International Tribunal 27.
24. Much of the Defence reply relates to arguments that have been raised in the underlying proceedings challenging the legality of the arrest of the accused and are not directly related to the current Motion. However, the Defence notes that, in the case of Stocke v. Germany, before the European Court of Human Rights28, an investigation was conducted by Germany to determine whether its agents had acted illegally. The Defence asserts that this investigation is exactly what SFOR is trying to preclude by refusing to divulge information that would either prove or disprove the facts of the issue29.
25. The Defence then argues that the past, present or future conduct of the Federal Republic of Yugoslavia (Serbia and Montenegro) is not a relevant issue for the Trial Chamber to consider, as to do so would politicize the actions of the International Tribunal. The Defence asserts that the Trial Chamber must base its rulings on legal principles and disregard any political consequences30.
26. On the question of disclosure of sensitive information, the Defence states that it is willing to reach an acceptable resolution that would address both the Defence need for information and SFORs concern to protect its security and operational methods31.
D. Submissions during the hearing
27. During the hearing the Defence made certain proposals to the Trial Chamber as to how it might proceed. In particular, the Defence suggested that the Trial Chamber could enquire whether the Prosecution had any additional evidence it wished to adduce which would contradict the testimony heard by the Trial Chamber so far. The Defence argued that, in the absence of any such evidence, the Trial Chamber could find that the Defence had established a prima facie case and could then order the return of the accused to the Federal Republic of Yugoslavia (Serbia and Montenegro). This would avoid any confrontation with SFOR32.
28. If the Trial Chamber did not wish to proceed in such a fashion, then the Defence repeated its request for an order addressed to the United States of America, as the sovereign State whose forces were in charge of the Tuzla Air Force base, together with a subpoena duces tecum directed to the Commanding General of SFOR at the time, General Shinseki, together with subpoenae ad testificandum addressed to General Shinseki and other thus-far unidentified persons33.
29. The Prosecution repeated its assertion that none of the material sought would, if produced, provide any evidence that the Prosecution had been involved in any illegal activity. The issue of unlawful arrest must be taken up with the courts of the Federal Republic of Yugoslavia (Serbia and Montenegro), not with the International Tribunal34. The Prosecution indicated that it would wish to present evidence as to the legality of the arrest and that such evidence would also show that there was no unlawful activity on its part.
30. The Prosecution contended that the issue before the Trial Chamber was not whether the Chamber has the right to issue orders to SFOR; the issue was whether any of the information sought could further the two questions: the involvement of the Prosecution in the arrest and detention, and the lawfulness of the arrest warrant. The position of the Prosecution was that none of the information sought would assist in those enquiries and therefore the Motion should be denied35.
31. After questioning from the bench, the Prosecution stated that it had complied with all orders of the Trial Chamber and had produced every document SitC ever had in SitsC possession related to the arrest of Mr. Todorovic36. The Prosecution contended that the power to order SFOR to produce documents was not a power that the Trial Chamber had, although it was for SFOR to make such an argument as the Prosecution was not authorised to speak on behalf of SFOR37. Later in the hearing the Prosecution clarified its position, stating that, although there were potential circumstances under which it would be appropriate for the Trial Chamber to make such an order, it was not appropriate in this particular situation 38.
32. The Defence acknowledged that, if it were successful in challenging the validity of the arrest, and the accused were returned to the Federal Republic of Yugoslavia (Serbia and Montenegro), there were two possibilities: either the accused would be returned to the custody of the International Tribunal immediately; or that country would not honour its commitments. However, that issue was beyond the interests of the International Tribunal and has to be dealt with in a political forum39. The Defence acknowledged that all of the precedents it cited dealt with national jurisdictions. The Defence was not aware of any precedent for an international body being involved in a kidnapping or having been brought to task for being involved in a kidnapping. The Defence asserted that, in its view, participation in an abduction and seizure of a person on the territory of the Federal Republic of Yugoslavia ( Serbia and Montenegro), if proven, would oust the International Tribunal of jurisdiction 40. The Defence also stated that it did not believe that a situation could arise where an international body would not be accountable to some authority for an act that might be deemed illegal41.
33. In response to a question from the bench, the Defence confirmed that it was still seeking information which may indicate some involvement by the Prosecution in the abduction of the accused, partly due to the fact that the Prosecution had produced only a copy of a one-page report in response to the Order of the Trial Chamber of 7 March 200042.
E. Post-hearing submissions
34. Following the hearing of the Motion on 25 July 2000, the Prosecution responded to the Defence Notice of Relief in a filing of 31 July 200043. The Defence filed a reply on 2 August 2000. Leave of the Trial Chamber was not sought by either party for such filings.
35. Much of these filings is devoted to argument on the underlying challenge to the legality of the arrest of the accused. However, the Prosecution did acknowledge in its filing that the Trial Chamber has the power to issue binding orders to SFOR personnel. The Prosecution submits that the discretion to do so should be exercised with extreme caution and only after a careful balancing of all competing interests . Accordingly, the damage which would be caused by the disclosure of confidential information must be weighed against the damage which would be caused to the administration of justice if the information were withheld from the Trial Chamber.
36. The Prosecution asserts that, in the present case, the balance would weigh against issuing the orders sought against an SFOR general and against the United States of America44. The Prosecution argues that SFOR has a strong public interest in preventing the disclosure of sensitive operational and security information relating to the conduct of arrests and that the request should not be granted unless the Defence establishes that there are cogent and compelling reasons which justify resort to such measures45. The Defence counters this argument by pointing out that the Trial Chamber has already made a finding that the information and testimony sought was relevant to the Defence and ordered its production by the Prosecution46. As the Prosecution has repeatedly stated that it has no knowledge of SFOR operations , it is in no position to argue as to the adverse impact of disclosure of information relating to such operations and its attempts to do so are just conjecture47.
37. The relevant provisions of the Statute and Rules of the International Tribunal are set out below.
Cooperation and Judicial Assistance
1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
Rule 54 bis
Orders Directed to States for the Production of Documents
(A) A party requesting an order under Rule 54 that a State produce documents or information shall apply in writing to the relevant Judge or Trial Chamber and shall :
(i) identify as far as possible the documents or information to which the application relates;
(ii) indicate how they are relevant to any matter in issue before the Judge or Trial Chamber and necessary for a fair determination of that matter; and
(iii) explain the steps that have been taken by the applicant to secure the States assistance.
(B) The Judge or Trial Chamber may reject an application under Sub-rule (A) in limine if satisfied that:
(i) the documents or information are not relevant to any matter in issue in the proceedings before them or are not necessary for a fair determination of any such matter; or
(ii) no reasonable steps have been taken by the applicant to obtain the documents or information from the State.
(C) A decision by a Judge or a Trial Chamber under Sub-rule (B) to reject an application shall be subject to appeal pursuant to Rule 116 bis.
(D) Except in cases where a decision has been taken pursuant to Sub-rule (B) or Sub-rule (E), the State concerned shall be given notice of the application, and not less than fifteen days notice of the hearing of the application, at which the State shall have an opportunity to be heard.
(E) If, having regard to all circumstances, the Judge or Trial Chamber has good reasons for so doing, the Judge or Trial Chamber may make an order to which this Rule applies without giving the State concerned notice or the opportunity to be heard under Sub-rule (D), and the following provisions shall apply to such an order :
(i) the order shall be served on the State concerned;
(ii) subject to paragraph (iv), the order shall not have effect until fifteen days after such service;
(iii) a State may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests. Sub-rule (F) shall apply to such a notice as it does to a notice of objection;
(iv) where notice is given under paragraph (iii), the order shall thereupon be stayed until the decision on the application;
(v) Sub-rules (F) and (G) shall apply to the determination of an application made pursuant to paragraph (iii) as they do to the determination of an application of which notice is given pursuant to Sub-rule (D);
(vii) the State and the party who applied for the order shall, subject to any special measures made pursuant to a request under Sub-rules (F) or (G), have an opportunity to be heard at the hearing of an application made pursuant to paragraph (iii) of this Sub-rule.
(F) The State, if it raises an objection pursuant to Sub-rule (D), on the grounds that disclosure would prejudice its national security interests, shall file a notice of objection not less than five days before the date fixed for the hearing, specifying the grounds of objection. In its notice of objection the State:
(i) shall identify, as far as possible, the basis upon which it claims that its national security interests will be prejudiced; and
(ii) may request the Judge or Trial Chamber to direct that appropriate protective measures be made for the hearing of the objection, including in particular:
(a) hearing the objection in camera and ex parte;
(b) allowing the documents to be submitted in redacted form, accompanied by an affidavit signed by a senior State official explaining the reasons for the redaction;
(c) ordering that no transcripts be made of the hearing and that documents not further required by the Tribunal be returned directly to the State without being filed with the Registry or otherwise retained.
(G) With regard to the procedure under Sub-rule (F) above, the Judge or Trial Chamber may order the following protective measures for the hearing of the objection:
(i) the designation of a single Judge from a Chamber to examine the documents or hear submissions; and/or
(ii) that the State be allowed to provide its own interpretation for the hearing and its own translations of sensitive documents.
(H) Rejection of an application made under this Rule shall not preclude a subsequent application by the requesting party in respect of the same documents or information if new circumstances arise.
(I) An order under this Rule may provide for the documents or information in question to be produced by the State under appropriate arrangements to protect its interests , which may include those arrangements specified in Sub-rules (F)(ii) or (G).
A. The power to issue the Orders requested
38. Article 29 of the Statute deals with cooperation between States and the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. The Appeals Chamber decision in Prosecutor v. Blaskic48 confirms what is plain on a reading of that Article, that is, that the International Tribunal is empowered to issue binding orders to States. The question is whether the International Tribunal is empowered under Article 29 to issue an order to SFOR, bearing in mind that Article 29 is, on its face, confined to the issuing of orders to States. To answer this it is necessary to examine both the establishment and structure of SFOR and the scope of Article 29.
1. The establishment of SFOR
39. IFOR (now SFOR) was established by NATO in December 1995 pursuant to the Dayton Peace Agreement and under the authority of the United Nations Security Council. Article I of Annex 1A of the Peace Agreement (which deals with the military aspects of the Peace Agreement) invited the Security Council to adopt a resolution by which it will authorize Member States or regional organizations and arrangements to establish a multinational military Implementation Force (hereafter IFOR).49
40. Article I, paragraph 1 (b), provides that NATO may establish such a force, which will operate under the authority and subject to the direction and political control of the North Atlantic Council (NAC) through the NATO chain of command.50 Article I, paragraph 2 (b), lists as one of the purposes of the obligations undertaken by the parties to the Peace Agreement in Annex 1A to provide for the support and authorisation of IFOR and in particular to authorize the IFOR to take such actions as required, including the use of necessary force, to ensure compliance with this Annex, and to ensure its own protection. Article VI, paragraphs 2 and 3, sets out the functions of IFOR51. Article VI, paragraph 4, provides in relevant part the Parties understand and agree that further directives from the NAC may establish additional duties and responsibilities for the IFOR in implementing this Annex.
41. Security Council resolution 1031, dated 15 December 1995, in paragraph 14 authorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement52 to establish a multinational implementation force (IFOR) under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 of the Peace Agreement53. Paragraph 16 of the resolution authorizes the Member States acting under paragraph 14 above, in accordance with Annex 1-A of the Peace Agreement, to take all necessary measures to ensure compliance with the rules and procedures, to be established by the Commander of IFOR.
42. On 16 December 1995, the North Atlantic Council approved Supreme Allied Commander Europes (SACEUR) Operational Plan for the establishment of IFOR and authorised deployment of IFOR main forces to the theatre of operations. In 1996, Security Council resolution 1088 (12 December 1996) authorised the Member States, acting through or in cooperation with the organisation referred to in Annex 1A of the Peace Agreement to establish SFOR as the legal successor to IFOR for a planned period of 18 months. Security Council resolutions 1174 (15 June 1998), 1247 (18 June 1999 ) and 1305 (21 June 2000) successively renewed the mandate of SFOR for a period of twelve months until the present time. SFOR currently comprises the 18 Member States of NATO together with another 15 States participating through specific agreements .
2. Cooperation between SFOR and the International Tribunal
43. In December 1995 the North Atlantic Council agreed that copies of indictments and arrest warrants issued by the International Tribunal would be transmitted to IFOR and that any indicted person detained by IFOR would be taken into custody, immediately informed of the charges against him and transferred as soon as reasonably practicable to the International Tribunal (hereafter NAC decision). Reference to the NAC decision is to be found in the Order of Judge Claude Jorda of 24 December 1995, which, inter alia, noted as follows:
1. that the North Atlantic Council on 16 December 1995 agreed that, having regard to UN Security Council regulations (sic) 827 (1993) and 1031 (1995) and Annex 1-A of the General Framework Agreement for Peace in Bosnia and Herzegovina, the multinational military implementation force (IFOR) should detain any persons indicted by the International Criminal Tribunal who come into contact with IFOR in its execution of assigned tasks in order to assure the transfer of these persons to the International Criminal Tribunal;
2. that the North Atlantic Council on 16 December 1995 approved a supplemental Rule of Engagement on the detention and transfer of such indicted persons with application limited to Bosnia-Herzegovina, to be implemented once practical arrangements have been agreed with the International Criminal Tribunal for the transfer to it of such indicted persons.54
44. In May 1996 a confidential agreement was concluded between SHAPE and the International Tribunal concerning practical arrangements for the detention and transfer to the International Tribunal of persons indicted for war crimes by the International Tribunal (the SHAPE Agreement)55. Some of its pertinent provisions include:
1.2 The Point of Contact (POC) at the Tribunal in the Hague will be the Office of the Prosecutor. The POC at SHAPE will be the Office of the Legal Advisor (OLA). All policy level matters will be dealt with by these two POCs.
Article 2 sets out details relating to the arrest of persons indicted for war crimes .
3.2 Upon the arrival of the competent representative of the Tribunal, that representative will also be responsible for confirming that the person detained by IFOR is the person named in the relevant arrest warrant and for informing said person of the substance of the arrest warrant issued against him. The Tribunal will also defend SHAPE and IFOR for any errors or omissions occurring as a result of the application of Articles 1, 2 and 3 by IFOR personnel acting in good faith during such detentions .
. . .
3.5 Upon transfer of the detained PIFWC (person indicted for war crimes( to the competent representative of the Tribunal, the IFOR Provost Marshal will furnish the Tribunal representative with a brief report concerning the details of the PIFWCs detention, including notations of any statements made by the detained PIFWC relevant to the PIFWCs indictment and arrest warrant. (Emphasis added.)
45. In a letter dated 9 May 1996, the legal advisor of SHAPE gave a formal clarification of the intent and meaning of Article 3, paragraph 2, above, as follows:
It is understood that the UN assumes no legal responsibility for the acts or omissions of IFOR personnel as a result of this MOU (Memorandum of Understanding(. Article 3.2 of the MOU shall not be construed as a waiver of any of the privileges and immunities of the United Nations or the Tribunal. The intent of Article 3.2 is merely to secure the agreement of the Participants that the Prosecutor of the Tribunal will, in the event of challenge, make legal representations or submissions during the Tribunal proceedings in support of actions or omissions made in good faith by IFOR personnel as a result of the application of Articles 1, 2 and 3 of this MOU. It is understood that relevant nations and international military headquarters, not the UN, remain legally responsible for the acts or omissions of IFOR personnel56.
3. The scope of Article 29
46. On its terms, Article 29 applies to all States, whether acting individually or collectively . In principle, there is no reason why Article 29 should not apply to collective enterprises undertaken by States, in the framework of international organisations and, in particular, their competent organs such as SFOR in the present case. A purposive construction of Article 29 suggests that it is as applicable to such collective enterprises as it is to States. The purpose of Article 29 of the Statute of the International Tribunal is to secure cooperation with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law in the former Yugoslavia. The need for such cooperation is strikingly apparent, since the International Tribunal has no enforcement arm of its own it lacks a police force. Although this cooperation would, more naturally , be expected from States, it is also achievable through the assistance of international organizations through their competent organs which, by virtue of their activities , might have information relating to, or come into contact with, persons indicted by the International Tribunal for serious violations of international humanitarian law. The existing relationship between SFOR and the International Tribunal is indicative of such cooperation in practice.
47. The International Tribunal has on several occasions had recourse to the general rule of treaty interpretation set out in Article 31 (1) of the Vienna Convention on the Law of Treaties ("the Vienna Convention") for the purpose of interpreting the Statute57. Article 31(1) of the Vienna Convention provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The jurisprudence of the International Tribunal has repeatedly stressed the importance of giving due weight to the object and purpose of the Statute in its construction. The mere fact that the text of Article 29 is confined to States and omits reference to other collective enterprises of States does not mean that it was intended that the International Tribunal should not also benefit from the assistance of States acting through such enterprises in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
48. A purposive construction of the Statute yields the conclusion that such an order should be as applicable to collective enterprises of States as it is to individual States; Article 29 should, therefore, be read as conferring on the International Tribunal a power to require an international organization or its competent organ such as SFOR to cooperate with it in the achievement of its fundamental objective of prosecuting persons responsible for serious violations of international humanitarian law, by providing the several modes of assistance set out therein.
49. The Trial Chamber is satisfied that SFOR is sufficiently organised and structured to receive and implement orders of the International Tribunal made pursuant to Article 29.
4. Jurisprudence of the International Tribunal on similar issues
50. It is necessary now to review the jurisprudence of the International Tribunal which , at any rate in relation to international organisations, may have pointed towards a different conclusion on this issue in the past.
51. In Blaskic58 the Appeals Chamber determined that:
(a) In respect of States, the International Tribunal is empowered under Article 29 of the Statute to issue binding orders, but is not empowered to issue a subpoena (paragraphs 25 and 28).
(b) In respect of State officials, the International Tribunal is not empowered to issue a subpoena because, under the doctrine of functional immunity, an individual cannot be penalised for acts undertaken in an official capacity (paragraph 38).
(c) In respect of State officials, there is no power to issue a binding order because 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 (paragraph 41). There are two exceptions to this. First, where the information sought from the State official relates to activities or knowledge gained outside the scope of his official duties, that official will be treated qua an individual and will be susceptible to a binding order in respect of the relevant information. Second , where a State official refuses to comply with a request from his authorities to surrender certain evidence or information. The Appeals Chamber held that in those circumstances for the limited purposes of criminal proceedings, it is sound practice to downgrade, as it were, the State official to the rank of an individual acting in a private capacity and apply to him all the remedies and sanctions available against non-complying individuals referred to below (paragraphs 49 - 51).
(d) In respect of State officials serving as a member of an international peace-keeping force, such as UNPROFOR, IFOR, SFOR, the International Tribunal is empowered to issue binding orders because they function as members of an international armed force responsible for maintaining or enforcing peace and not qua a member of the military structure of his own country (paragraph 50). However, the Appeals Chamber did not consider the question whether the International Tribunal was empowered under Article 29 to issue binding orders directly to bodies such as UNPROFOR, IFOR and SFOR.
52. In Kovacevic, the Trial Chamber, in a brief Order considering a Defence motion for a subpoena to be issued to the Organization for Security and Cooperation in Europe (OSCE) mission in Bosnia, held that the International Tribunal had no authority to issue a binding order to the OSCE under Article 29, as that provision applied to States, not international organizations (the OSCE Decision)59.
53. In the Simic case60 (the ICRC Decision), this Trial Chamber considered whether the International Committee for the Red Cross (ICRC) had a right to confidentiality in respect of the information gathered by a former employee in the course of his official duties. The Trial Chamber held that the Appeals Chamber Subpoena Decision is not applicable to the instant case, which deals with the relationship between the ICRC and an international institution ; and went on to state: that Decision deals with the relationship between the International Tribunal and States under Article 29 of the Statute, which provision does not apply to international organisations.61
54. In the Kordic case, the Trial Chamber first requested the production of documents from the European Community Monitoring Mission (ECMM) and then from its responsible authorities, the Presidency of the European Union Council and the Commission of the European Union. When no documents were produced in response to such formal requests, the Trial Chamber issued an Order requiring the various Member States of the European Community at the time of establishment of ECMM to produce the relevant documents (the ECMM Decision)62. The Presidency of the European Union Council has produced documentation in response .
55. The ICRC Decision, which is a decision of this Trial Chamber, is readily distinguishable because, in that case, the issue was not the applicability of Article 29 to an international organization, but rather, whether a particular organization had a legal entitlement to confidentiality of information gathered by a former employee in the course of his official duties. The dictum of the Trial Chamber, quoted at paragraph 53 of this Decision, must be understood in the context in which it was made. The Trial Chamber was explaining that the decision in Blaskic was not applicable to the ICRC Decision, since that matter dealt with the relationship between the International Tribunal and States under Article 29, whereas the ICRC Decision dealt with the relationship between the ICRC and the International Tribunal. In that context, the Trial Chamber said that Article 29 did not apply to international organizations. It is clear, therefore, that the Chambers dictum that Article 29 did not apply to international organizations was not a necessary part of the ratio decidendi in that case , and is, consequently, obiter.
56. The OSCE Decision63, being a decision of another Trial Chamber (and an unreasoned one), is not binding on this Chamber , and the Chamber is not persuaded to follow it64.
57. The Trial Chamber finds particularly relevant the ECMM Decision, where Trial Chamber III first requested the ECMM itself, and then ordered those States who were members of the European Union at the time of entry into force of the Memorandum of Understanding on Monitoring Activities in Bosnia and Herzegovina, to disclose certain documents to defence counsel in that case65.
B. The Specific Orders Requested
1. The Order to SFOR
58. On the basis of the analysis at paragraphs 46 - 49, the Trial Chamber concludes that it is competent to issue a binding order under Article 29 of the Statute to the 33 participating States of SFOR and, through its responsible authority, the North Atlantic Council, to SFOR itself. Such an Order is issued to the various States concerned pursuant to Rule 54 bis (E) and a similar procedure will, by analogy , be applied in respect of the Order to SFOR and to the North Atlantic Council. Indeed a similar procedure has already been followed in this case to date, by serving the Motion on SFOR and inviting it to attend the hearing in July 2000. There are further provisions of the Rules permitting an affected State to apply to have such Order set aside on the basis that disclosure would prejudice its national security interests or to seek review of such a decision by the Appeals Chamber.
59. The purpose of the Defence Motion is to secure certain information and documents , which the accused believes to be in the custody and control of SFOR, and which will assist him in his motions challenging the legality of his arrest66. The main contention of both SFOR and the Prosecution in opposing this Motion is that the Motion should be dismissed because Todorovic is not entitled to the relief he seeks, even if his allegations were to be accepted67. This argument proceeds on the assumption that the evidence is complete. That assumption is erroneous, as what Todorovic is seeking is further evidence from SFOR which will assist him to obtain the relief which he seeks. Only when Todorovic has had the opportunity to present all the available evidence will it be possible for the Trial Chamber to determine whether he is entitled to the relief he seeks. The Prosecution sought to argue once more that there is no basis in the evidence to date which entitled Todorovic to obtain such material68. As the Trial Chamber, in its Order of 7 March 2000, has already held that there is such a basis, and as the application by the Prosecution for leave to appeal against that decision was refused, it is not open to the Prosecution to re-agitate that issue now.
60. As to the additional claim by SFOR that further factual disclosure is precluded by compelling requirements of operational security69, the Trial Chamber does not accept the blanket objection which SFOR has raised. It was open to SFOR to make specific objections to the disclosure of particular documents or other material at the hearing in accordance with a procedure similar to that set forth in Rule 54 bis (F) but SFOR chose not to do so.
61. The Trial Chamber is satisfied that it has been adequately demonstrated that there is material in the custody or control of SFOR which is likely to assist Todorovic in obtaining the relief he seeks, and that there is a legitimate forensic purpose in having it produced. The Trial Chamber is also satisfied that, as the Prosecution has not been able to produce copies of the material, it is appropriate that SFOR now be required to disclose that material.
The Subpoena to SFOR Personnel to Testify
62. On the basis of the Appeals Chambers decision in Blaskic, referred to in paragraph 51 of this Decision, the Trial Chamber has the competence to issue a subpoena ad testificandum to SFOR personnel. This includes General Shinseki since, in terms of that decision, he is not representing his State and is to be treated qua individual in respect of any event that he has personally witnessed , even if observed while performing his official functions. Thus he is compellable not in his role as Commanding General of SFOR but as an individual with personal knowledge of the events of which complaint is made. Similar considerations will apply to any other SFOR personnel who are shown to have direct knowledge of these events.
63. The Trial Chamber is satisfied that it would be appropriate to issue a subpoena to General Shinseki in due course, requiring him to testify in the ongoing evidentiary hearing in this matter.
The Order to the United States of America
64. The Trial Chamber does not consider it necessary to make the order requested in respect of the United States, since it intends to follow the approach in the ECMM Decision of requiring the several States participating in SFOR, of which the United States is one, to provide the information and material requested. In making this order for the States participating in SFOR to produce certain material, the Trial Chamber observes that all States are obliged by Security Council resolution 82770 to cooperate fully with the International Tribunal and that, pursuant to Article 103 of the Charter of the United Nations, in the event of any conflict between a States obligations to NATO and SFOR on the one hand, and their obligations under the Charter on the other, their obligations under the latter prevail.
Based upon the foregoing, the Trial Chamber GRANTS the Motion and ORDERS as follows:
1. SFOR and its responsible authority, the North Atlantic Council, shall, no later than Friday 17 November 2000, disclose to the Defence for Stevan Todorovic:
(a) Copies of all correspondence and all reports by SFOR relating to the apprehension of the accused, Stevan Todorovic;
(b) the original or a copy of all audio and video tapes made by SFOR on 27 September 1998 of the initial detention and arrest of the accused, Stevan Todorovic, at the Tuzla Air Force base;
(c) copies of all SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused, Stevan Todorovic;
(d) the identity, if known, of the individual or individuals who transported the accused, Stevan Todorovic, by helicopter to the Tuzla Air Force base, Bosnia and Herzegovina, on or about 26 and 27 September 1998; and
(e) the identity, if known, of the individual or individuals who placed the accused , Stevan Todorovic, under arrest and who served the arrest warrant issued by the International Tribunal on the accused, Stevan Todorovic, on or about 28 September 1998.
SFOR and the North Atlantic Council shall by Friday 17 November 2000 notify the Trial Chamber of such disclosure or shall indicate to both the Trial Chamber and the Defence for Stevan Todorovic if such material is not within its custody or control , or if the identities of the persons referred to in paragraphs (d) and (e) are not known to SFOR.
This order is made following the procedure set out in Rule 54 bis and, in particular, Rule 54 bis (E)(iii), pursuant to which SFOR may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests.
2. The States participating in SFOR, namely Albania, Argentina, Austria, Belgium , Bulgaria, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Morocco, the Netherlands , Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Turkey, the United Kingdom and the United States of America shall, no later than Friday 17 November 2000, disclose to the Defence for Stevan Todorovic:
(a) Copies of all correspondence and all reports by SFOR relating to the apprehension of the accused, Stevan Todorovic;
(b) the original or a copy of all audio and video tapes made by SFOR on 27 September 1998 of the initial detention and arrest of the accused, Stevan Todorovic, at the Tuzla Air Force base;
(c) copies of all SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused, Stevan Todorovic; and
(d) the identity, if known, of the individual or individuals who transported the accused, Stevan Todorovic, by helicopter to the Tuzla Air Force base, Bosnia and Herzegovina, on or about 26 and 27 September 1998;
(e) the identity, if known, of the individual or individuals who placed the accused , Stevan Todorovic, under arrest and who served the arrest warrant issued by the International Tribunal on the accused, Stevan Todorovic, on or about 28 September 1998.
The above-mentioned States shall by Friday 17 November 2000 notify the Trial Chamber of such disclosure or shall indicate to both the Trial Chamber and the Defence for Stevan Todorovic if such material is not within its custody or control, or if the identities of the persons referred to in paragraphs (d) and (e) are not known to the States.
This order is made pursuant to Rule 54 bis and, in particular, Rule 54 bis (E), in accordance with which a State participating in SFOR may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests.
3. A subpoena shall be issued in due course to General Shinseki requiring him to provide evidence in the ongoing evidentiary hearing in this matter at a date and time to be specified.
The Defence is at liberty to apply to the Trial Chamber for additional subpoenae for named individuals after the disclosure of the material sought pursuant to this Decision.
4. The Registrar of the International Tribunal is HEREBY REQUESTED to take all necessary steps to serve this Order on SFOR, the North Atlantic Council and the States listed in operative paragraph 2 hereof, in accordance with Rule 54 bis (E) of the Rules and to notify the Trial Chamber of the dates on which such service is effected.
5. Pursuant to Rule 54 bis (E) (ii) of the Rules, and without prejudice to the date for production of the materials ordered, this Order shall not have effect until fifteen days after such service.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson attaches a Separate Opinion to this Decision.
Dated this eighteenth day of October 2000
At The Hague
[Seal of the Tribunal]
1- Supreme Headquarters Allied Powers Europe.
2- Corrected Statement in support of Motion, 1 Dec. 1999, para. 5.
3- Notice to Trial Chamber as to Specific Relief sought on Motion for Judicial Assistance, 25 July 2000 (Notice of Relief).
4- Todorovic Defenses Reply to Prosecutors Response to Motion for Judicial Assistance & to Compel, 13 Dec. 1999, (Defence Reply) para. 9.
5- Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1777, Case No. IT-95-14-AR108, A. Ch., 29 Oct. 1997, at para. 50 and fn. 68.
6- Defence Reply, supra n. 4, paras. 8 and 12.
7- Memorandum of Law in Support of Defense Position that SFOR is Subject to ICTY Jurisdiction, 5 June 2000, paras 4, 8 and 9.
8- United Nations Security Council resolution S/RES/1088, 12 Dec. 1996.
9- In particular, Prosecutors Response to the Notice of Motion for Evidentiary Hearing on Arrest, Detention and Removal of Defendant Stevan Todorovic, 22 Feb. 1999 (Prosecution Response re Arrest).
10- Prosecutors Response to Stevan Todorovics Notice of Motion for Judicial Assistance, 8 Dec. 1999, paras. 13 - 16.
11- Ibid., paras 18 20.
12- Ibid., para. 25.
13- Prosecution Response re Arrest, supra n. 9, para. 53.
14- Defence Response to SFORs Request for Additional Time to Respond and Response to Prosecutors Response, 3 July 2000, paras 8 and 9.
15- SFOR Submission, 10 July 2000 (SFOR Submission).
16- Many of these arguments are adopted and expanded upon by the Prosecution in its Response to the Defence Notice of Relief, infra n. 43.
17- SFOR Submission, supra n. 15, p. 2.
18- Jean-Bosco Barayagwiza v. The Prosecutor, Decision, Case No. ICTR-97-19-AR72, ICTR A. Ch., 31 Mar. 2000.
19- Prosecutor v. Dokmanovic, Decision on the Motion for Release by the Accused Slavko Dokmanovic, Case No. IT-95-13a, T. Ch. II, 22 Oct. 1997.
20- SFOR Submission, supra n. 15, p. 2.
21- Ibid., p. 3.
23- Ibid., p. 4.
24- SFOR Submission, supra n. 15, p. 5.
25- Ibid., p. 6.
26- Defence Reply to Submission made by SFOR, 17 July 2000 (Defence Reply to SFOR), p. 2 3.
27- Ibid., p. 3.
28- Stocke v. Germany, ECHR Ser. A No. 199, 19 Mar. 1991.
29- Defence Reply to SFOR, supra n. 26, p. 14.
30- Ibid., p. 16.
31- Ibid., p. 17.
32- Transcript, 25 July 2000 (Transcript), p. 747.
33- Transcript p. 748.
34- Ibid., p. 750.
35- Ibid., p. 751.
36- Ibid., p. 759.
38- Ibid., p. 768-69.
39- Ibid., p. 763.
40- Ibid., p. 765.
42- Ibid., p. 766.
43- Prosecutors Response to the Defence Notice to Trial Chamber as to Specific Relief sought on Motion for Judicial Assistance, 31 July 2000.
44- Ibid., para. 10.
45- Ibid., paras. 12 17.
46- Defence Reply to Prosecutions Response dated July 31, 2000 on Motion for Judicial Assistance, 2 Aug. 2000.
47- Ibid., pp. 7 8.
48- Supra, n. 5.
49- Article VI, paragraph 1 of Annex 1A provides that IFOR will act under Chapter VII of the United Nations Charter.
50- The North Atlantic Council was established pursuant to Article 9 of the North Atlantic Treaty, signed in Washington D.C. on 4 April 1949, which also empowers the Council to set up such subsidiary bodies as may be necessary. The role of the Council is to consider matters concerning the implementation of the North Atlantic Treaty, and each member State of NATO is represented on it.
51- The duties of IFOR include, inter alia, monitoring compliance with the military aspects of the Peace Agreement, establishment of liaison arrangements with local authorities and other international organizations, assisting international organizations in their humanitarian missions, preventing interference with the movement of civilian populations and monitoring mine clearance.
52- This reference is to NATO.
53- Annex 2 of the Peace Agreement concerns the Inter-Entity Boundary Line and Related Issues.
54- Prosecutor v. Blagoje Simic et al., IT-95-9, Order, Judge Jorda, filed 5 Feb. 1996.
55- On 26 July 2000, the SHAPE Agreement was made available to the Chamber on the understanding that it would not be disclosed to anyone outside the Chamber. However, since the Agreement contains provisions that are relevant to this Motion, as well as to the motion challenging the legality of his arrest, and since the Office of the Prosecutor has always been in possession of the Agreement, and since, in any event, there could be no prejudice caused by the disclosure of the provisions quoted, the Chamber can find no good reason for abstaining from referring to those provisions, particularly since the Agreement is part of the history of events relating to SFOR.
56- The agreement that the Prosecutor will make representations in support of the actions taken on detention denies the assertion by the Prosecution that it was not authorised to speak on behalf of SFOR: see para. 31, supra.
57- See e.g. Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-A, ICTR A. Ch., Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 15; Prosecutor v. Tadic, Case No. IT-94-1-PT, Decision on the Prosecutors Motion, Protective Measures for Victims and Witnesses, T. Ch. II, 10 Aug. 1995, p.10; Prosecutor v. Erdemovic, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah to the Judgement, A. Ch., 7 Oct. 1999, para. 3; Prosecutor v. Theoneste Bagasora and 28 Others, Case No. ICTR-98-37-A, ICTR A. Ch., Decision on the Admissibility of the Prosecutors Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Theoneste Bagasora and 28 Others, 8 June 1998; and Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, A. Ch., 2 Oct. 1995.
58- Supra, n. 5.
59- Prosecutor v. Milan Kovacevic, Case No. IT-97-24-PT, Decision Refusing Defence Motion for Subpoena, T. Ch. II, 23 June 1998 (OSCE Decision).
60- Prosecutor v. Simic et al., Case No. IT-95-9-PT, Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, T. Ch. III, 27 July 1999.
61- Ibid., para. 78.
62- Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-T, Order for the Production of Documents by the European Community Monitoring Mission and its Member States, T. Ch. III, 4 Aug. 2000.
63- Supra n. 59.
64- See the principles outlined in Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, A. Ch., 24 Mar. 2000, para. 114: The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.
65- Supra n. 62.
66- Prosecutor v. Blagoje Simic et al., Case No. IT-95-9-PT, Accused Stevan Todorovics Petition for a Writ of Habeas Corpus, 12 Nov. 1999; Prosecutor v. Blagoje Simic et al., Case No. IT-95-9-PT, Notice of Motion for an Order Directing the Prosecutor to Forthwith Return the Accused Stevan Todorovic to the Country of Refuge, 21 Oct. 1999.
67- SFOR Submission supra n. 15, p. 4, Transcript, p. 749.
68- Transcript p. 754, 756 and 758.
69- SFOR Submission, supra n. 15, p. 4 5.
70- S/RES/827 (1993), para. 4.