Article 29 of the ICTY Statute obliges Member States of the UN to co-operate and offer judicial assistance to the Yugoslav Tribunal without undue delay. Such calls for co-operation are to be addressed in the form of binding orders or requests, 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;
205 See I Bantekas, ‘The Contemporary Law of Superior Responsibility’, 93AJIL(1999), 573, p 587.
206 Celebicijudgment (16 November 1998), para 384; subsequently followed inBlaskicjudgment (3 March 2000), paras 307, 408 andAleksovskijudgment (25 June 1999), para 80.
207 Protocol I, Art 86(2).
208 ICTY Statute, Art 7(3) and ICTR Statute, Art 6(3).Report of the ILC on the Work of its 48th Session,6 May-26 July 1996, GAOR 51st Session, Supp No 10, UN Doc A/51/10 [ILC Draft Code Commentary], p 38.
209 Celebicijudgment (16 November 1998), para 395.
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
Since the ICTY Statute constitutes a Security Council enforcement measure, any order or request by a Trial Chamber for the surrender and transfer of documents or persons isipso factobinding.210A large number of States have enacted implementing legislation in order to harmonise their obligations under Art 29 and prepare national mechanisms to cope with the legal intricacies of possible future requests.211Some of these domestic Acts have been criticised for not offering adequate safeguards and of permitting for extradition of offences under the ICTY Statute that are not contained in the criminal law of the extraditing State.212These criticisms have no legal basis since, as Warbrick correctly points out, the obligation of States to surrender accused persons found on their territory does not amount to extradition.213
In response to an ICTY subpoena for the production of documents addressed to Croatia, the latter challenged the Tribunal’s authority to order sovereign States, and argued that, in any event, requests of this nature must adhere to national channels of communication and should not jeopardise national security. On appeal, the Appeals Chamber in theBlaskiccase admitted that the ICTY possesses enforcement measures neither under its Statute, nor inherently by its nature as a judicial institution.214It pointed out that, as a general rule, States cannot be ‘ordered’ by other States or international organisations. The power to ‘order’ under Art 29 of the ICTY Statute, however, derives its binding force from Chapter VII and Art 25 of the UN Charter, laying down anerga omnesobligation, which every Member of the UN has a legal interest in fulfilling.215
After deciding on the legitimacy of addressing binding orders, theAppeals Chamber next examined the requirements216which such subpoenaduces tecumorders (that is, for the production of documentary evidence) must satisfy. These were held to be: (a) the identification of specific documents, rather than categories; (b) justification of the relevance of requested documents to each trial; (c) avoidance of unduly onerous requests; and (d) allowance of sufficient time for compliance. Where a State persists to
210 Report of the Secretary General pursuant to Security Council Resolution 808(1993), UN Doc S/25704 (1993), paras 125–26.
211 UK UN ICTY Order 1996 SI 1996/716; Australian International War Crimes Tribunals Act No 18 (1995).
212 H Fox, ‘The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal’, 46ICLQ(1997), 434, regarding theUK’s1996 SI.
213 C Warbrick, ‘Co-operation with the International Criminal Tribunal for Yugoslavia’, 45ICLQ(1996), 945, p 950; see R Kushen and KJ Harris, ‘Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda’, 90AJIL(1996), 510.
214 Prosecutor v Blaskic,Appeals Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber I of 11 July 1997 (Blaskicappeals subpoena decision) (29 October 1997) (1997) 110 ILR 607, para 25.
215 Ibid,para 26; the ad hoc tribunals have at times found it necessary to go beyond the indicative list of orders and requests identified in their respective Statutes, such as in the case of ordering all UN members to freeze former FRY President Milosevic and co-accuseds’ assets abroad.Prosecutor v Milosevic and others,Decision on Review of Indictment and Application for Consequential Orders (24 May 1999).
216 Blaskicappeals subpoena decision (29 October 1997), para 32.
defy compliance, the Tribunal is endowed with inherent power to make a judicial determination regarding a State’s failure to observe the court’s Statute or Rules. This power also includes formal notification to the Security Council.217The fact that Art 29 constitutes anerga omnesobligation empowers all UN Members to request termination of the breach once a relevant judicial determination has been made.218
Binding orders in the form of subpoenas cannot be addressed to State officials acting in their official capacity. It is the prerogative of each State to determine the internal organs competent to receive and carry out the order.219TheAppeals Chamber found that it possessed unlimited authority, on the basis of its incidental jurisdiction, to issue orders to private individuals within the framework of domestic channelling procedures, unless otherwise permitted by national law or when State authorities refuse to comply by hindering this process.220The concept of private individuals for the purposes of Art 29 also includes State agents possessing information or material obtained before they accepted office, members of peace-keeping forces, because their mandate stems from the same source as the Tribunal, and State agents who refuse to obey national authorities.221As for possible national security concerns, although every possible protective measure should be observed, the Appeals Chamber emphasised the exceptional departure from Art 2(7) of the UN Charter relating to the Security Council’s authority acting under Chapter VII to interfere in the domestic affairs of States, the establishment of the ICTY being one such specific application.222
In a related case in 1999, the ICTY was seized with a request by the prosecutor to order the ICRC to disclose information its employees had collected in the course of their duty. The Chamber held that admissibility of evidence may be limited not only by the ICTY Statute and Rules, but also by customary international law.223The ICRC was found to be an independent humanitarian organisation organised under Swiss law, generally acknowledged as enjoying international legal personality, and whose functions and tasks were directly derived from international law, that is, the Geneva Conventions and Protocols.224 Based on the object and purpose of the Geneva Conventions, the ICRC is recognised by States parties as enjoying impartiality, neutrality and confidentiality, all of which are necessary in order to carry out its mandate. The ICTY noted that widespread ratification of these treaties, taken together with relevant State acceptance, reflected a customary international law right to non- disclosure by the ICRC.225In any event, the Trial Chamber held that Art 29 of the ICTY Statute does not apply vis-à-vis international organisations.226
217 Ibid,para 33.
218 Ibid,para 36.
219 Ibid
,paras 38, 43.
220 Ibid,para 55.
221 Ibid,paras 49–51.
222 Ibid,para 64.
223 Prosecutor v Simic and Others,Decision on the Prosecution Motion under r 73 for a Ruling Concerning the Testimony of a Witness (27 July 1999), paras 41–42.
224 Ibid,para 46.
225 Ibid,paras 72–74.
226 Ibid,para 78. See S Jeannet, ‘Recognition of the ICRC’s Long Standing Rule of Confidentiality’, 838 IRRC(2000), 403.