Case No. IT-02-54-T

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

Registrar:
Mr. Hans Holthuis

Order:
9 December 2005

The Accused:

Mr. Slobodan Milosevic

Court Assigned Counsel:

Mr. Steven Kay, QC
Ms. Gillian Higgins

Government of the Government of the United Kingdom:

Professor Christopher Greenwood, QC Ambassador
Mr. Chris Whomersley
Mr. Dominic Raab

Federal Republic of Germany:

Dr. Edmund Duckwitz
Professor Dr. Christian Tomuschat

I. Introduction

1. This Trial Chamber is seized of applications by the Assigned Counsel of the Accused, Slobodan Milosevic, for the testimony (and pre-testimony interview) of Tony Blair, the Prime Minister of the United Kingdom, and Gerhard Schröder, former Chancellor of the Federal Republic of Germany. The Trial Chamber expresses its gratitude to the Assigned Counsel for these applications, which deal with issues that have been raised by the Accused on many occasions in an inappropriate, informal way.

2. Assigned Counsel argue that these two individuals possess information that is necessary for the resolution of specific issues relevant to the Kosovo indictment against the Accused, and request either a binding order to the governments of the United Kingdom and Germany directing them to provide the witnesses, or a subpoena to Mr. Blair and Mr. Schröder to compel their attendance at the Accused’s trial. The two states argue in response that calling Mr. Blair and Mr. Schröder as witnesses serves no legitimate forensic purpose and that the official capacity of the prospective witnesses entitles them to certain immunities which may prevent the issuance of a subpoena against them. The Trial Chamber has considered all the arguments made by the parties and renders the following decision.

II. Procedural History

3. On 18 August 2005, Assigned Counsel filed a confidential and ex parte application requesting a binding order to be issued to the government of the United Kingdom (“United Kingdom” or “UK”) which would:

(a) order the Government of the United Kingdom to arrange for the Assigned Counsel and an Associate of the Accused to interview the United Kingdom State Official: the Prime Minister the Right Hon. Mr Anthony Blair MP[, and]

(b) order the Government of the United Kingdom to make arrangements with the Assigned Counsel and an Associate for the Accused for the witness … to give evidence in the defence stage of the trial of Slobodan Milosevic if the Accused decides to call the same as a witness.¹

4. One week later, Assigned Counsel filed a request for a binding order to be issued to the government of the Federal Republic of Germany (“Germany”) which would, as with the UK application, order the government to “arrange for the Assigned Counsel and an Associate of the Accused to interview” certain named witnesses and to “make arrangements” for those witnesses “to give evidence in the defence stage of the trial of Slobodan Milosevic if the Accused decides to call the same as witnesses.”² The prospective witnesses named in the German application are Gerhard Schröder (former Chancellor), Helmut Kohl (former Chancellor), Joschka Fischer (former Minister of Foreign Affairs), Hans- Dietrich Genscher (former Minister of Foreign Affairs), and Klaus Kinkel (former Minister of Foreign Affairs).

5. On 9 September 2005, the United Kingdom responded to the application made against it,³ and Assigned Counsel filed a reply on 16 September.⁴ One week later Germany filed its response,⁵ and Assigned Counsel filed a reply on 30 September 2005.⁶

6. That same day, the Trial Chamber issued two preliminary orders (one regarding the application against the UK and the other regarding the application against Germany ) requesting further submissions from the parties on two specific issues:

(i) Whether the Motion, which states that it is filed under Rule 54 and Rule 54 bis of the Rules of Procedure and Evidence of the Tribunal, seeks a binding order pursuant to Rule 54 bis or a subpoena ad testificandum pursuant to Rule 54, paying particular attention to the holding of the Appeals Chamber in Prosecutor v. Krstic;⁷ and

(ii) Whether the status of the prospective interviewees and/or witnesses as [senior state officials] … gives them immunity from a subpoena compelling them to attend an interview and/or testify in a trial before the Tribunal.⁸

7. Assigned Counsel filed a separate response to the preliminary order for each application on 30 September 2005,⁹ and the two states filed their responses two weeks later.¹⁰

8. Then, on 17 October 2005, the Accused filed an updated witness list, naming the witnesses he intends to call for the remainder of the case. Mr. Blair and Mr. Schröder, but none of the other German officials listed in the application for a binding order against Germany—Kohl, Genscher, Fischer and Kinkel—are on the list. As a result, on 7 November 2005, Assigned Counsel filed a notice withdrawing its application for a binding order in relation to those other German officials.¹¹ The witnesses that are now the subject of the applications are therefore Tony Blair, the head-of-government of the United Kingdom, and Gerhard Schröder, the former head-of-government of Germany.

III. Procedure for Summoning a State Official to Interview or Testify before the Tribunal: a Binding Order to the State Under Rule 54 bis or a Subpoena Ad Testificandum to the Individual Official Under Rule 54?

A. Introduction

9. Rule 54 of the Tribunal’s Rules of Procedure and Evidence (“Rules”) provides as follows:

Rule 54
General Rule

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.

Rule 54 bis of the Rules provides in relevant part as follows:

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 State’s assistance.

10. A preliminary issue which the Chamber must resolve is whether an application for the testimony of a state official falls under the provisions of Rule 54 (the “general rule” that contemplates the issuance of subpoenas) or Rule 54 bis (the rule that applies specifically to orders directing states to produce “documents or information”).

11. The Appeals Chamber in the Blaskic case held that the term “subpoena” necessarily contemplates the imposition of a criminal penalty and that since “States, by definition, cannot be the subject of criminal sanctions …[,] the term ‘subpoena’ is not applicable and … only binding ‘orders’ or ‘requests’ can be addressed to them.”¹² For state officials, the reasoning was the same: they are mere instruments of the state and therefore a subpoena could not be issued to them for information obtained in the course of their official duties. The Appeals Chamber concluded on this basis that it was not possible to issue a subpoena under Rule 54 to Croatia, Croatia’s Defence Minister, or a state official from Bosnia-Herzegovina.¹³ It issued instead a binding order to Croatia and Bosnia-Herzegovina, requiring that each state produce certain specified documents through an official of their choosing.¹⁴ Rule 54 bis, adopted two years after Blaskic, codified the Blaskic decision that the procedure for obtaining documents from states or state officials is through a binding order issued to the state.¹⁵

12. In the Krstic case in 2003, the Appeals Chamber (i) clarified that the Blaskic prohibition on issuing a subpoena to a state official was limited to applications for state documents, and (ii) specifically held that, where a party sought to have a state official testify as a witness, or to have a state official who was a prospective witness interviewed, it should do so by applying for a subpoena ad testificandum under Rule 54.¹⁶ In Krstic, the accused had applied for subpoenas to be issued to two prospective witnesses—each a state official described by the Appeals Chamber as “an officer in the Army of a State or Entity”¹⁷— to attend an interview with defence counsel. He made his application for subpoenas under Rule 54, which gives a trial chamber the power to “issue such orders, summonses, subpoenas, [or] warrants … as may be necessary for … the preparation or conduct of the trial.” In the Appeals Chamber’s view,

[s]uch 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.¹⁸

13. Thus the Appeals Chamber ordered that subpoenas be issued requiring the two prospective witnesses “to attend … a location in Bosnia and Herzegovina … at a time … to be nominated by the Krstic defence … to be interviewed there by the Krstic defence.”¹⁹

14. Judge Shahabuddeen dissented in Krstic on two grounds. First, he did not believe that any witness—whether a state official or not—could be compelled to attend an interview. He acknowledged that the powers of a Chamber to issue orders and subpoenas under Rule 54 were broad, and encompassed the power to compel a witness to testify, but found that they did not encompass the power to compel a witness to attend an interview. According to him, there is no precedent in either domestic or international jurisprudence for issuing a subpoena to a potential witness requiring that person to attend a defence interview under criminal sanctions, and using Rule 54 to achieve this purpose represents an unwelcome “invasion of the right to privacy.”²⁰

15. Second, Judge Shahabuddeen did not agree that a Chamber had the power to subpoena a state official to testify about what he has seen and heard in his official capacity. The Blaskic decision did, he conceded, deal with documents, but “it seems … that … the reasoning logically extends to any other information acquired by the official in his official capacity as a State official,” including information to be conveyed through testimony.²¹

16. In spite of this vigorous dissent, the holding of the majority in Krstic was that (i) a subpoena is the correct procedural mechanism for seeking to compel a state official to testify, and (ii) a subpoena is also the correct mechanism for seeking to compel a state official to attend a pre-testimony interview. As a result, a number of trial chambers have, since the Krstic Appeal Decision, issued subpoenas to state officials for both testimony and pre-testimony interviews.²²

B. Parties’ Submissions

Assigned Counsel

17. Assigned Counsel submit that for both applications, they request as a “first stage” a binding order against the states and not a subpoena to the prospective witnesses. This, according to the Assigned Counsel, “demonstrates appropriate respect towards the State and provides it with an opportunity to comply with its obligations pursuant to Security Council Resolution 827 and Article 29 of the Statute.”²³ However, “[i]n the event that the Trial Chamber issues a specific binding order to the [state] and the latter refuses to cooperate in facilitating communications with the named individual, the Assigned Counsel will seek a subpoena ad testificandum."²⁴ In addition, they make clear that “[i]n the event that the Trial Chamber (i) disagrees with the manner in which the Assigned Counsel seek to apply these enforcement mechanisms, or (ii) considers that the more appropriate method of obtaining the information/testimony at this stage of the proceedings is by the issuing of a subpoena pursuant to Rule 54, the Trial Chamber may follow that course of action.”²⁵

18. For Assigned Counsel, there is in effect little difference between a subpoena and a binding order because a request for a binding order, while addressed to the state, does not preclude a request for the testimony of specific individuals ; indeed, they are emphatic that this is the relief being sought:

The proposition in the Blaskic Subpoena Decision that ‘States, being the addressees of [the] obligation [to cooperate with the Tribunal] have some choice or leeway in identifying the person responsible for, and the method of, its fulfilment’ applies to situations where the precise identity of the individual is not relevant. Blaskic was concerned with the production of State documents. The identity of the producing witness was not crucial to the production of evidence. In the circumstances, the State clearly had some choice or leeway in the manner in which the requested documentation was to be produced. However, in the present case, where the aim of the application is to obtain specific witness testimony from a named individual … the leeway argument is not applicable. The state is not permitted to select the witnesses to be heard by the Trial Chamber.²⁶

19. Assigned Counsel therefore suggest that the Trial Chamber issue a binding order to the UK and Germany instead of a subpoena to Mr. Blair and Mr. Schröder, but that the binding orders require each state to produce the requested individual for testimony. In the alternative, they seek to have their applications interpreted as requests for a subpoena.

United Kingdom

20. The UK’s position is that the application made against it should be interpreted as one for a binding order to the state under Rule 54 bis. The Krstic Subpoena Decision—issuing a subpoena ad testificandum to compel a state official’s attendance at a pre-testimony interview—“is distinguishable”, in the UK’s view, from the present case.²⁷ While it admittedly concerns “the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence,” it should, according to the UK, be distinguished from the application for the interview and testimony of Mr. Blair because the Krstic decision concerned “a witness who [was] 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,”²⁸ whereas here there is no suggestion that the British Prime Minister is able to give “direct visual or auditory evidence of any of the events which are the subject of the prosecution of the defendant, nor that he is able to give an appreciation of events which occurred on the ground.”²⁹ For this reason, Krstic does not apply; Blaskic does; and the request remains within the purview of Rule 54 bis.

21. In the UK’s submission, Rule 54 is “a general rule about the making of orders, etc.”, whereas “Rule 54 bis then makes additional provision where the order sought is to be directed to a State. Thus, any application for production of documents or information from a State must be made under Rule 54 and 54 bis.”³⁰ In this instance the request is one for information from a state and thus, the UK says, it comes under Rule 54 bis. This is true, the UK insists, regardless of the official manner in which the request was filed or presented. “[E]ven if in form” the application by Assigned Counsel is “a request … directed to an identifiable human being, that request must fall under Rule 54 bis if in substance the request is for the State to produce documents or information.”³¹

22. In sum, the UK accepts that Krstic establishes an exception to the Rule 54 bis regime by requiring a subpoena to be issued when there is a request for a state official’s testimony rather than a request for state documents; it argues, however, that this exception is narrowly circumscribed to the situation where the official is expected to testify about things that he “saw or heard” in the course of exercising his official functions.

Germany

23. Germany agrees with the UK that Rule 54 bis —and not Rule 54—should apply to the Assigned Counsel’s request. According to Germany, “there can be no doubt regarding the legal classification of the motion introduced by the Defence on 25 August 2005…[:] the Defence proceeds exclusively on the basis of Rule 54 bis. It has not requested that the Tribunal issue orders directly against the potential witnesses; rather, it demands that the Trial Chamber order the German government to “make arrangements permitting it to interview the... persons concerned.”³² Because “the only legitimation for issuing an order paving the way for testimonial evidence is the duty of cooperation set forth in Article 29 of the Statute... such orders should be addressed to the State concerned pursuant to [Rule] 54 bis of the Rules of Procedure and Evidence. All the subsequent steps must be left to the sovereign discretion of that State.”³³

24. Germany does not explicitly argue, as does the UK, that the Krstic Appeals Chamber instruction that a subpoena be used to secure official testimony applies only in the situation where the prospective witness has eye-witness knowledge, but it argues for the same result when it stresses that, in its application for Mr. Schröder’s interview and testimony, “[w]hat the Defence wishes to obtain is general information about the foreign policy of Germany” and not the “personal knowledge ” of Mr. Schröder.³⁴ Thus it states that “[d]ozens of other high-ranking governmental officials have the same knowledge as” he has and, as a consequence, “the Blaskic jurisprudence must apply [and] [n ]o subpoena may be directed” against Mr. Schröder as an individual.³⁵

25. Finally, Germany also argues that, as a matter of principle, the protections granted to states in Rule 54 bis should not be allowed to be circumvented by allowing a party to seek a subpoena for testimony under Rule 54:

The dominant procedural principle is enshrined in Article 29 of the Statute. States are bound to cooperate with the Tribunal, but it is their right to determine how the requisite cooperation should be effected. By invoking [Rule] 54 of the Rules of Procedure and Evidence and requesting the Tribunal to proceed against individual State officials identified by it, the defence of an accused could circumvent any of the devices designed to protect the sovereign prerogatives of the State concerned.³⁶

C. Discussion

26. Although there is no substantive difference between the requirements that must be satisfied for issuance of a binding order to a state and the requirements that must be satisfied for issuance of a subpoena to a state official,³⁷ there are differences in the effect of the two processes. First, a subpoena would be addressed to Mr. Blair or Mr. Schröder, as opposed to the United Kingdom or Germany, and the individuals—as opposed to their state—would be the subjects of the legal obligations contained therein. Second, the sanction that would apply in the event of non-compliance would be, in the case of a subpoena, a finding of contempt under Rule 77³⁸ and, in the case of an order, a reporting (via the Tribunal President) of the state’s non-compliance to the Security Council under Rule 7 bis of the Tribunal’s Rules.

27. The Trial Chamber finds that where, as here, it is seized of an application for an interview with and testimony from a specific state official—as opposed to an application for information from a state which does not seek to summon a specific official as a witness—the appropriate procedural mechanism for summoning the official to interview and testify is a subpoena addressed to the individual official and not a binding order addressed to the official’s state.

28. In the view of this Chamber, the holding of the Appeals Chamber in Krstic is clear: a subpoena under Rule 54, not a binding order under Rule 54 bis, is the mechanism that should be used to secure testimony from state officials, and this mechanism includes the power to compel state officials to attend a pre -testimony interview. Rule 54 bis is limited to applications for state documents and does not cover applications for oral testimony by state officials, even if it relates to “information” obtained in an official capacity. Indeed, the approach taken by the parties—–that essentially all requests for “information” from a state, whether documentary or testimonial, ought to fall under the provisions of Rule 54 bis—is consistent with the dissent in Krstic, and not the majority view that prevailed.³⁹

29. This majority view in Krstic distinguished the Blaskic Appeal Decision (requiring a binding order to the state to compel the production of state documents) on the basis that there is an inherent distinction between documents and testimony. Although, as the Appeals Chamber held, it is for the state itself to determine which officials are responsible for the requested documents, witness testimony is necessarily specific to that particular individual and thus a subpoena addressed to that individual is appropriate. In the words of the Appeals Chamber:

The justification for the [Blaskic] 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’. 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.⁴⁰

30. This reasoning applies to all types of testimony. As a result, the Trial Chamber rejects the argument made by the UK and Germany that, under Krstic, a subpoena should be issued only when a witness is to testify about things he has seen and heard.⁴¹ Although the Appeals Chamber does repeatedly refer in its Krstic decision to testimony about what an official “saw or heard,” there is nothing to suggest that the Chamber intended to limit the decision to this type of testimony. The full phrase used throughout the decision is “evidence of what [an official] saw or heard in the course of exercising his official functions,” and, in context, the relevance of the phrase appears to be that the evidence concerns “official” as opposed to “private” activity and thus triggers immunity considerations. Indeed, the Appeals Chamber made no explicit finding that the information requested related to what the witnesses had seen or heard and instead held generally that a subpoena was the correct mechanism for compelling pre-testimony interviews, even when a party “[was] unaware of the precise nature of the evidence the prospective witness can give.”⁴²

31. Finally, the Trial Chamber rejects the argument by the UK⁴³ and Germany⁴⁴ that, if subpoenas for the testimony of state officials were issued under Rule 54, the detailed Rule 54 bis protections available to states would be circumvented. According to the two states, parties could always by-pass the requirements of a Rule 54 bis document-request (such as identifying with specificity the documents required, showing that the documents are necessary for a fair determination of a matter in issue before the trial chamber, and showing the steps that have been taken to secure the state’s assistance) by merely subpoenaing a state official to give the information contained in the document, thus making the protections available under 54 bis (such as closed-session hearings for documents that implicate a state’s national-security concerns) ineffectual.

32. This seemingly legitimate fear is unwarranted, however, for two reasons. First, the requirements for issuing a subpoena under Rule 54 are as stringent as those for a binding order under Rule 54 bis.⁴⁵ Second, as the Appeals Chamber in Krstic made clear, the protections afforded to state documents under Rule 54 bis apply mutatis mutandis to a state official giving evidence before the Tribunal. Thus, if a state official were to be asked “questions which raise issues of national-security, then a procedure analogous to Rule 54 bis may have to be adopted.”⁴⁶ As a result, the states’ concern that operating under Rule 54 rather than Rule 54 bis would deprive them of their ability to seek protection for their national -security interests is unfounded.

Conclusion

33. In sum, the decision of the Appeals Chamber in Krstic requires that requests for testimony from state officials be governed by Rule 54. This has been confirmed by the recent practice of trial chambers.⁴⁷ In addition, applying the Krstic dichotomy between documents and testimony would not leave states’ national-security interests unprotected because the protections available to official documents in Rule 54 bis also apply to official testimony under Rule 54. For these reasons, the Trial Chamber concludes that the Assigned Counsel’s application for the interview and testimony of Mr. Blair and Mr. Schröder is an application for a subpoena under Rule 54 and should be assessed according to the standard set out in that rule.

IV. Merits

A. The Standard for Issuing a Subpoena to a Prospective Witness under Rule 54

34. Having decided that the Assigned Counsel’s request is governed by the provisions of Rule 54, it is next necessary to assess whether the requirements for a Rule 54 subpoena have been met.

35. A “Trial Chamber is vested with discretion in determining whether [an] applicant [has] succeeded in making the required showing for a subpoena, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused.”⁴⁸ “Subpoenas should not be issued lightly”, the Appeals Chamber has warned, “‘for they involve the use of coercive powers.’”⁴⁹ Moreover, “[p]articular caution is needed where the [party] is seeking to interview a witness who has declined to be interviewed.”⁵⁰

36. In entertaining an application for a subpoena, a trial chamber should consider two factors: (1) whether the information in the possession of the prospective witness is necessary for the resolution of specific issues in the trial (the “legitimate forensic purpose” requirement), and (2) whether the information in the possession of the prospective witness is obtainable by other means (the “last resort” requirement ).⁵¹

Legitimate Forensic Purpose

37. The issuance of a subpoena to a prospective witness for either an interview or testimony is subject to the condition set out in Rule 54 that it be “necessary ” for “the preparation or conduct of trial.”

38. The Appeals Chamber has explained that, in the context of a pre-testimony interview, this means that:

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 … trial.⁵²

This requirement applies equally to a subpoena seeking to compel a witness to testify at trial.

39. The Chamber draws attention to the Appeals Chamber’s holding that the information sought from the prospective witnesses must not only be of assistance; it must be of material assistance. Thus it is not enough that the information requested may be “helpful or convenient” for one of the parties: it must be of substantial or considerable assistance to the Accused in relation to a clearly identified issue that is relevant to the trial.⁵³

40. As a result, an applicant for a subpoena must be specific about the information sought from the prospective witness and must demonstrate a nexus between this information and the case against the accused. Factors that may be relevant to establishing this nexus include the position held by the prospective witness in relation to the events in question; any relationship the witness may have had with the accused which is relevant to the charges; any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the Prosecution or others in relation to them.⁵⁴

Last Resort

41. Even if a party satisfies a chamber that a subpoena for a witness’ testimony has a legitimate forensic purpose, however, issuing a subpoena would still be inappropriate if the information sought through testimony is available through other means. As the Appeals Chamber has warned, a trial chamber’s consideration of an application for a subpoena “must focus not only on the usefulness of the information to the applicant” but also on “its overall necessity in ensuring that the trial is informed and fair.”⁵⁵

V. Do the Applications Meet the Standard for the Issuance of a Subpoena?

A. Parties’ Submissions

Assigned Counsel

42. In their application for the testimony of Mr. Blair, Assigned Counsel provide a “schedule” outlining the following nine categories of proposed testimony: (1 ) communications between Mr. Blair and the Accused as well as “other leading persons involved in issues relevant to the Kosovo indictment against the Accused”; (2) NATO’s involvement in “supporting, arming and training the Kosovo Liberation Army” (“KLA ”) to “carry out” attacks within Kosovo between 1997 and 1999; (3) the UK Government’s involvement in the diplomatic initiatives and negotiations concerning Kosovo that took place with the Federal Republic of Yugoslavia (“FRY”) and the Republic of Serbia between 1997 and 1999; (4) the UK Government’s participation in and acquisition of intelligence from the Kosovo Verification Mission between 1997 and 1999; (5) the UK Government’s involvement in the negotiations concerning Kosovo that took place in Rambouillet and Paris in 1999; (6) NATO’s “decision to arm and attack the FRY in 1998 and 1999 and the explanation for the targets and purpose of the attacks ”; (7) cooperation between NATO and the KLA in operations against the FRY between 1998 and 1999; (8) the “inaccurate information given by the UK Government to the media” concerning events in the FRY between 1997 and 1999, and (9) the “cessation of the NATO campaign against the FRY in June 1999” and the implementation of UN Security Council Resolution 1244.⁵⁶

43. The application for Mr. Schröder’s testimony contains the same proposed subject -matter of testimony as the application for Mr. Blair’s except that (i) the application for Mr. Blair’s testimony contains two additional areas of proposed testimony, numbers (8) and (9); (ii) the application for Mr. Blair’s testimony relies, as support for the first proposed subject-matter of testimony (communications with the Accused and others involved in issues relevant to the Kosovo indictment) on a letter sent by Mr. Blair to the Accused, whereas there is no such letter from Mr. Schröder, and (iii) there are other differences of a primarily semantic nature.⁵⁷

United Kingdom

44. The UK argues that the Assigned Counsel application should be denied because the requirements for relief under Rule 54 have not been met in the present case.⁵⁸ According to the UK, “[t]he use of the word ‘necessary’ in [Rule 54] imposes a high threshold before a Trial Chamber may issue an order or a subpoena.”⁵⁹ And yet, according to the UK, the Assigned Counsel’s request “is couched in the broadest of terms” and “in effect” seeks “an order which would enable a fishing expedition in the form of taking the testimony of a head of government on any and every aspect of his government’s policy regarding the Kosovo conflict.”⁶⁰ Much of the information requested in the application for Mr. Blair’s testimony is also, according to the UK, “plainly irrelevant” to the determination of any of the charges made against the Accused.⁶¹

45. In addition, the UK argues that the application “is not being made as a last resort” because there was no “serious attempt to secure voluntary cooperation in the provision of information.”⁶²

Germany

46. Germany also complains of a lack of specificity in the Assigned Counsel application. The application in relation to Mr. Schröder does not, in Germany’s view, “specify the facts in relation to which testimony of the … potential witness[] is sought.”⁶³ Indeed, Germany states, the “reader is at a loss to guess what impact any answers to the subject matter of testimony could have on the adjudication of the charges by the Tribunal.”⁶⁴

47. Instead of establishing a plausible link between the information that the Accused seeks to extract from former Chancellor Schröder and the charges which the Accused is facing, the Defence, Germany argues, “ha[s] chosen two different counter-strategies. On the one hand, it makes unfounded allegations about policies of the German Government during the relevant years” and on the other “it delves into the general history of ‘Yugoslavia’, trying to shift the blame for the disintegration of the unity of the State on NATO and Germany in particular.”⁶⁵ Apart from “being groundless and partly absurd”, Germany stresses, “all of these submissions are absolutely irrelevant for the trial [of] the Accused.”⁶⁶ Thus, it concludes, the application for Mr. Schröder’s testimony should be denied.

B. Discussion

48. The Trial Chamber finds that the applications for subpoenas in this case fail to identify with sufficient specificity either the particular indictment-related issues to which the proposed testimony is relevant or, indeed, how this testimony would “materially assist [the Accused] in his case.”⁶⁷ This lack of specificity is, in itself, a sufficient basis upon which the Trial Chamber could deny the applications.⁶⁸ However, for the sake of completeness, the Chamber will assess whether any of the categories of proposed testimony put forward by the Assigned Counsel (nine categories in the case of Mr. Blair; seven for Mr. Schröder) pass the test for the issuance of a subpoena under Rule 54.⁶⁹

Argument that the Accused had a Policy to Create Peace in the Region

49. The first category of testimony identified by Assigned Counsel in its schedules concerns “direct or indirect communications” between Mr. Blair/Mr. Schröder and the Accused which reveal that the Accused’s policy was “to create peace in the region ” of Kosovo.⁷⁰

50. According to Germany, this subject-matter is entirely irrelevant to the charges against the Accused and thus has no connection to any live issue in the trial. As Germany puts it,

the fact that peace may have been a subject of some conversations is not suited to prove that the Accused did not commit the offences with which he has been charged or that his culpability, should he be convicted, is of lesser weight.⁷¹

51. The Trial Chamber notes that Assigned Counsel do not specify a single direct or indirect communication between the Accused and Mr. Schröder and that in neither application do the Assigned Counsel explain how proving that the Accused had a policy to “create peace” might impact upon the Trial Chamber’s findings on any element of any crime with which the Accused is charged in the Kosovo indictment. Thus this category of proposed testimony does not constitute a legitimate forensic purpose for the subpoenas.

52. In their application for the testimony of Tony Blair, Assigned Counsel do specify one direct communication between the proposed witness and the Accused—a letter dated 24 September 1998 from Mr. Blair to Mr. Milosevic—but this does not change the result.

53. The letter has been admitted into evidence as a Prosecution exhibit and states in relevant part as follows:

I wrote to you in June to express my deep personal concern about the situation in Kosovo and to appeal to you to take the necessary steps to work for a peaceful resolution of this difficult problem …. I have continued to take a close personal interest in developments in Kosovo. I have to say that I have been disturbed and perplexed by the evidence of continuing hostilities and the rapidly worsening humanitarian crisis. As I said in my previous letter, no one disputes your right to deal with security problems. But the excessive and indiscriminate use of force by your security and armed forces is having an intolerable impact on innocent civilians who are being forced to flee their homes and whose livelihoods are being destroyed. ⁷²

54. Assigned Counsel use the 24 September 1998 letter to support their application for Mr. Blair’s testimony by arguing that “[t]he Prosecution have alleged that this letter put the Accused on notice that his forces were abusing the human rights of the Kosovan Albanians” and that, because the “terms of that letter are disputed” by the Accused, he should be allowed to “put his case to [Mr. Blair] and question him about the sources of his information.”⁷³ But whether the Accused was in fact put on notice is not affected by any evidence that Mr. Blair can give from his personal knowledge. Thus Assigned Counsel’s request that the Accused be allowed to question Mr. Blair about his sources serves no legitimate forensic purpose.

55. Of course, the truth of the factual assertions in the letter—namely that FRY forces were using “excessive and indiscriminate force” against civilians—would be relevant, but since there is no suggestion that Mr. Blair has personal knowledge about what happened “on the ground” so that he could be asked to verify these facts, there is no legitimate forensic purpose in calling him to verify these facts. For the same reason, a subpoena for his testimony on this basis—where the information is clearly obtainable through other, better, means such as eye-witnesses —would also not be a “last resort” and the Chamber declines to issue the subpoena on this basis as well.⁷⁴

56. In sum, with regard to the first proposed subject of testimony (including the letter from Mr. Blair), there is no evidence that the information sought from either of the proposed witnesses affects any issue relevant to the determination of the guilt or innocence of the accused in relation to any of the charges in the Kosovo indictment; therefore the request does not satisfy the requirements for the issuance of a subpoena.

57. The third and fifth categories of testimony sought from the prospective witnesses also centre on the Accused’s argument that he was a peacemaker whilst other states —including the UK and Germany—were the aggressors in Kosovo.⁷⁵ Thus the Assigned Counsel seek information about the diplomatic negotiations on Kosovo that took place between 1997 and 1999 (third category), and, in particular, the negotiations on Kosovo that took place at Rambouillet and Paris in 1999 (fifth category). This information is said to be relevant because “the Accused’s case is that since the Dayton Accord he took all proper steps to ensure peace and stability in the region of the FRY [and that notwithstanding] this … there was a policy to cause the diminution of the State of Serbia pursued by the [UK and Germany].”⁷⁶ As heads-of-government of the UK and Germany, the Assigned Counsel conclude, Mr. Blair and Mr. Schröder were “aware of the policy to reduce the State of Serbia and approved the steps necessary to pursue it.”⁷⁷

58. Again, this is not a legitimate ground for compelling Mr. Blair or Mr. Schröder to attend an interview or testify. General references to the policy of the governments of the UK or Germany regarding Kosovo, and to the alleged policy regarding the “ diminution of the State of Serbia” in particular, do not constitute “necessary” information for the defence of any of the charges in the Kosovo indictment. Nor, more specifically, have the Assigned Counsel shown that the prospective witnesses’ “awareness” of such policies is something which, if proved, would affect the Accused’s defence case in relation to any particular charge. Therefore the third and fifth categories of testimony identified by the Assigned Counsel as justifying a subpoena do not pass the “legitimate forensic purpose” test for issuance of a subpoena under Rule 54.

Argument that the UK and German Governments Supported NATO/KLA Aggression

59. The second category of testimony sought from the prospective witnesses—the alleged NATO involvement in the supporting, arming and training of the KLA to carry out attacks within Kosovo between 1997 and 1999—is said to be relevant to the Accused’s defence for two reasons. First, it is said that “the Accused’s case [is] that acts committed in Kosovo were in self-defence against acts of the KLA,” because the latter’s “aim … was to make Kosovo an independent State and to remove all Serbian people from the territory.”⁷⁸ Second, Assigned Counsel argue, crimes in the indictment such as the forcible transfer and deportation of civilians alleged to have been committed as a result of the criminal responsibility of the Accused were in fact caused by the “activities of NATO and the KLA.”⁷⁹ Mr. Blair and Mr. Schröder, it is alleged, were “aware of this policy to support the KLA” and NATO, and thus their testimony is required.⁸⁰

60. Similarly, the fourth, sixth and seventh areas of testimony outlined by the Assigned Counsel in the schedules to their applications centre on the UK and German governments’ involvement in the NATO bombings. It is argued for instance that these governments collaborated with the Kosovo Verification Mission [of the OSCE], the purpose of which was to “enable NATO to attack FRY civilian and military targets in Kosovo.”⁸¹ And it is stressed that the UK and German governments, “as significant members of NATO, led the agenda within NATO to attack the FRY in pursuit of that policy” of attack. Again, the Assigned Counsel state, the attack by NATO was a planned act of aggression that “caused [ the FRY] to act in self-defence” and “caused the migration of the population as a reaction to the bombing campaign.”⁸² And since the two prospective witnesses were “aware of this NATO policy” and “sanctioned it,” a subpoena for their testimony is warranted.⁸³

61. In response to the claim that the activities of NATO and the KLA are relevant to the Accused’s argument that he acted in self-defence, Germany states that the “Defence seems to be unaware of the basic [distinction between jus ad bellum and jus in bello] which inexorably leads to the conclusion that the alleged necessity to hear the [prospective witness] cannot be justified by invoking self -defence. The Yugoslav armed forces were bound to remain within the confines of the applicable rules of humanitarian law, in the same way as the NATO forces during their air operations, regardless of whether the FRY had been unlawfully attacked or not.”⁸⁴ Similarly, in response to the claim that the activities of NATO and the KLA are relevant to the Accused’s case that the forced migration of Kosovo-Albanian civilians from Kosovo was caused not by him but by NATO, Germany states that, even if these issues are relevant, “the witnesses identified in the [applications] are unable, by their testimony, either to confirm or to deny that the line of argument of the Defence is correct or false.”⁸⁵

62. The Trial Chamber is not convinced by the Assigned Counsel’s argument that the testimony of the prospective witnesses is “necessary” in regard to these matters because the proposed witnesses are not alleged to have personal knowledge of events “on the ground.” Thus, while certain alleged activities of NATO and/or the KLA may be relevant to the trial because they may provide an exculpatory explanation for the migration of civilians from Kosovo and other allegations in the indictment, Mr. Blair and Mr. Schröder’s “awareness” of a UK or NATO policy to support the KLA or NATO would not, even if proved, buttress the Accused’s arguments on any matter relevant to a determination of his guilt or innocence in relation to these allegations. Thus there is no legitimate forensic purpose for the information sought and as a result no basis for the issuance of a subpoena on these grounds.

Other Proposed Testimony for Mr. Blair

63. The eighth and ninth categories of testimony identified by Assigned Counsel are sought only from Mr. Blair, but neither constitutes a legitimate basis for a subpoena to be issued to him. The eighth category of proposed testimony relates to the allegation that the UK Government “deliberately fed the media unsubstantiated and false news reports concerning the living conditions and migration of the Kosovo Albanians which were critical of the FRY and Serbia” and that “[d]uring the NATO attack on the FRY the destruction of civilian targets was intentionally denied to give a false and misleading impression of the validity of the war.” ⁸⁶

64. The UK response to these claims is that “even if [this allegation] were correct, it would have no bearing on the question of the Accused’s guilt or innocence of the charges against him.”⁸⁷ The Chamber agrees, and as a consequence, the eighth category of information does not justify a subpoena for Mr. Blair to interview or testify.

65. Finally, the ninth category of testimony proposed by Assigned Counsel—“[t]he cessation of the NATO campaign against the FRY in June 1999 and the implementation of U.N. Security Council Resolution 1244⁸⁸— is outside the temporal scope of the indictment and thus is not relevant to any charges made against him. Indeed, in the application for a binding order to Germany, Assigned Counsel “conced[e] that this matter … does not relate sufficiently to matters within the Indictment.”⁸⁹ Thus, no subpoena can issue on this basis.

Conclusion

66. A party seeking to secure the testimony or pre-testimony interview of a state official must apply for a subpoena under Rule 54. According to the provisions of this rule, a subpoena for testimony must be “necessary” for “the preparation or conduct of trial”, which in turn means that the application for testimony must have a legitimate forensic purpose and should only be used as a “last resort.” The Trial Chamber has examined the Assigned Counsel’s applications, including the attached schedules of proposed testimony, and finds that the issuance of a subpoena is not warranted in relation to either Mr. Blair or Mr. Schröder.

67. Because the applications fail on their merits, no issue arises as to whether the status of the prospective witnesses as senior state officials would have given them immunity from a subpoena compelling them to attend an interview or testify in a trial before the Tribunal.

68. Finally, because there is nothing in the present decision that necessitates a confidential filing, and because the issues which the applications raise are of some significance to the Tribunal’s procedures generally, the present decision is given publicly notwithstanding that the applications and subsequent pleadings were filed on a confidential basis.

VI. Disposition

69. For these reasons, pursuant to Rules 54 and 126 bis, the Trial Chamber hereby ORDERS as follows:

(a) The Trial Chamber GRANTS, proprio motu, leave to Assigned Counsel to file their Reply to UK Response;

(b) The Trial Chamber DENIES the Assigned Counsel application for the testimony and pre-testimony interview of Tony Blair, and

(c) The Trial Chamber DENIES the Assigned Counsel application for the testimony and pre-testimony interview of Gerhard Schröder.

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

___________
Judge Robinson
Presiding

Dated this 9th day of December 2005
At The Hague
The Netherlands

[Seal of the Tribunal]