Case No.: IT-05-87-PT

IN TRIAL CHAMBER III

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
13 December 2005

PROSECUTOR

v.

MILAN MILUTINOVIC
NIKOLA SAINOVIC
DRAGOLJUB OJDANIC
NEBOJSA PAVKOVIC,
VLADIMIR LAZAREVIC,
VLASTIMIR DORDEVIC
SRETEN LUKIC

___________________________________________

ORDER DISMISSING REQUESTS TO EXTEND THE STAY OF ENFORCEMENT OF THE DECISION ON SECOND APPLICATION OF DRAGOLJUB OJDANIC FOR BINDING ORDERS PURSUANT TO RULE 54BIS

___________________________________________

The Office of the Prosecutor:

Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton

Counsel for the Accused:

Mr. Eugene O’Sullivan and Mr. Slobodan Zecevic for Milan Milutinovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Dragoljub Ojdanic
Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic

Counsel for Parties Against Which Binding Orders were Issued

Mr. Baldwin De Vidts for the North Atlantic Treaty Organisation (NATO)
Ms. Colleen Swords, Ms. Janet Henchey, Mr. John Currie and Mr. Masud Husain for Canada
No appearance for Iceland
No appearance for Luxembourg
Mr. Clifton Johnson, Ms. Heather Schildge and Mr. Omar Nazif for the United States of America

 

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,

NOTING this Chamber’s "Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54 bis," filed on 17 November 2005 (the "Decision"), which inter alia ordered Canada, Iceland, Luxembourg, the United States and NATO to comply with the document requests of Dragoljub Ojdanic (the "Applicant") contained in paragraphs (A) and (B) of "General Ojdanic’s Second Application for Orders to NATO and States for Production of Information,"

NOTING that the Decision gave "any appropriate State or international organisation an opportunity to request protective measures"1 within 21 days of the Decision’s filing,

NOTING that this 21-day stay expired on 8 December 2005 without any State or international organisation having applied to this Trial Chamber for protective measures,

NOTING the "Request of the United States of America for an Extension of the Stay of the Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54 bis Pending Appeal of the Decision," filed before this Trial Chamber on 8 December 2005 (the "Request of the United States"), which argues inter alia that, if the Decision is enforced now and the Appeals Chamber later reverses it, compliance with the Decision will have done irreparable harm to the national security interests of the United States,2

NOTING also the "Request of the North Atlantic Treaty Organisation for an Extension of the Stay of the Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54 bis Pending Appeal of the Decision," filed before this Trial Chamber on 9 December 2005 (the "Request of NATO"), which argues that compliance with the Decision before the Appeals Chamber assesses its validity will irreparably harm NATO’s security interests,3

NOTING the "Request of the United States of America for Review of the Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54 bis," filed before the Appeals Chamber on 2 December 2005 pursuant to Rule 108 bis of the Rules of Procedure and Evidence (the "Rules"), which asks the Appeals Chamber to stay enforcement of the Decision and ultimately to reverse the Decision,

NOTING further the "NATO Request for Review of Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54 bis," filed before the Appeals Chamber on 2 December 2005 pursuant to Rule 108 bis, which also seeks reversal of the Decision,

NOTING finally "General Ojdanic’s Submission on Admissibility of Requests for Review," filed before the Appeals Chamber on 7 December 2005, in which the Applicant states inter alia that he "agrees that the Impugned Decision concerns issues of general importance relating to the powers of the Tribunal and does not object to the Appeals Chamber reviewing the decision. In addition, he does not object to a stay of the decision pending such review"4,

CONSIDERING that the Appeals Chamber is seized of requests of the United States and NATO for review of the Decision, which were filed pursuant to Rule 108 bis, as well as of the Applicant’s submission filed in response,

CONSIDERING Rule 108 bis(C), which provides that the "Appeals Chamber may at any stage suspend the execution of the impugned decision,"

CONSIDERING that neither the United States nor NATO has cited – nor is this Trial Chamber aware of – any authority stating that it is for the Trial Chamber rather than the Appeals Chamber to issue stays of decisions submitted for appellate review pursuant to Rule 108 bis,

CONSIDERING also that the Request of NATO was filed one day after expiration of the 21-day stay contained in the Decision, that NATO has not shown good cause for this Chamber to accept the late filing and that this Chamber would in any case consider the Request of NATO just as it has considered the Request of the United States,

PURSUANT TO Rules 54 and 108 bis(C),

HEREBY DISMISSES the Request of the United States and the Request of NATO.

 

Done in both English and French, the English text being authoritative.

_________________________
Judge Patrick Robinson
Presiding

Dated this thirteenth day of December 2005.
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1. Decision on Second Application of Dragoljub Ojdani} for Binding Orders Pursuant to Rule 54 bis, 17 November 2005, p. 17.
2. See Request of the United States of America for an Extension of the Stay of the Decision on Second Application of Dragoljub Ojdani} for Binding Orders Pursuant to Rule 54 bis Pending Appeal of the Decision, 8 December 2005, para. 3.
3. See Request of the North Atlantic Treaty Organisation for an Extension of the Stay of the Decision on Second Application of Dragoljub Ojdani} for Binding Orders Pursuant to Rule 54 bis Pending Appeal of the Decision, 9 December 2005, p. 2.
4. General Ojdani}’s Submission on Admissibility of Requests for Review, 7 December 2005, para. 3.