The Appeals Chamber 'Subpoena Decision'

Friday, 31 October, 1997

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IWPR ICTY

It goes without saying that if orders are "binding" there must be some sort of penalty, i.e. sanctions, for those who do not comply with them. But the sanctionary power belongs to others - the UN Security Council, the Member States or intergovernmental organisations - not to the Tribunal, which, as the Appeals Chamber has concluded, "does not possess any power to take enforcement measures against sovereign States."

At first sight it would appear that because of this decision Croatia has emerged as the winner in the nine-month-long contest with the Tribunal, whose Judge McDonald issued a Subpoena Duces Tecum to Croatia and its Defence Minister, ordering the production of documentary evidence related to the Blaskic case on 15 January of this year. The Appeals Chamber unanimously quashed the subpoenae but at the same time it instructed the Prosecutor to "submit a request for a binding order to Croatia" for the production of the same documentary evidence! The Prosecutor, Louise Arbour, immediately announced that she would seek such an order.

The Appeals Chamber has, just as clearly, established the obligation of states to carry out "binding orders or requests" issued to them by the Tribunal. Article 29 of the Statute, the Appeal Chamber asserts, "requires all States to cooperate and lend judicial assistance to the International Tribunal. This obligation is reiterated in paragraph 4 of [UN] Security Council Resolution 827 (1993). Its binding force thus derives from the provisions of Chapter VII and Article 25 of the UN Charter and from the Security Council resolutions pursuant to those provisions.

This exceptional legal basis accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States. Article 29 sets out a clear obligation, which is incumbent on every Member State of the UN. Article 29 also posits a community interest in the observance."

Insistence on "community interest" or "communal legal interest in the observance of this international obligation" is of particular importance for legal remedies which, according to the Appeals Chamber judgement, are available in case of non- compliance by the state. The Appeals Chamber holds that "it is for the International Tribunal's parent body, the Security Council, to impose sanctions, if any, against a recalcitrant State, under the conditions provided for in Chapter VII of the UN Charter".

However, the Tribunal "is endowed with the inherent power to make a judicial finding concerning a State's failure to observe the provisions of the Statute or the Rules. It also has the power to report this judicial finding to the Security Council."

The Appeals Chamber has thus rejected one of key arguments put forth by Croatia, who has stressed repeatedly that the Security Council alone is empowered to determine whether a state is in breach of international law. And, moreover, as the President of the Tribunal and its Appeals Chamber, Antonio Cassese, said in an interview with Tribunal Update and WarReport, "Judicial finding is a judgement, it is a formal decision that we find that State X is in breach of international law, and as such it has a lot of authority."

The Appeals Chamber obviously does not take for granted that the Tribunal's "parent body" will treat this judicial finding seriously and undertake action against recalcitrant states. Experience calls for caution: the Tribunal has approached the Security Council on five occasions thus far because of states' refusals (three times in the case of FRY, and once in the case of Croatia and Republika Srpska respectively) to carry out its "binding orders", and all it ever received in turn were luke- warm "Presidential Statements" in which such conduct by the recalcitrant states is "deplored."

This is the reason why the Appeals Chamber judgement goes further, pointing out that "each Member State of the UN may act upon the communal legal interest in the observance of this international obligation," and that "a collective response through other intergovernmental organisations may be envisaged."

This is, no doubt, the most important novelty in the Appeals Chamber's "Subpoena Decision." Should the Security Council, for whatever reason, fail to undertake measures against the state which turned a deaf ear to the Tribunal's "binding order", all UN member states and their organisations (e.g., the European Union, OSCE, NATO) are empowered to undertake unilateral or collective action against such state, because each of them - as President Cassese explained in the above- mentioned interview - "has a legal interest in compliance with the international obligation by the recalcitrant state."

This practically means that if, say, Russia or China, vetoes sanctionary measures of the Security Council against some disobedient states of the former Yugoslavia, other members of the Security Council and all other member states of the UN can protect the threatened "communal legal interest" with unilateral or collective actions.

The Appeals Chamber has also rejected Croatia`s second key argument in a hearing on the obligation of states to produce requested documentary evidence. Croatia had claimed that the production of some of the requested documents would be against its national security interests, insisting that the Security Council is exclusively empowered to examine the legitimacy of its "national security concerns."

The Appeals Chamber, however, concluded that "to grant States a blank right to withhold documents necessary for trial might jeopardise the very function of the International Tribunal", and "undermine its very raison d'etre". Without ruling out the possibility of states to assert national security claims, the Appeals Chamber deems that the best way - in order to scrutinise the validity of these claims - would be to hold in camera, ex parte proceedings.

A majority of the Appeals Chamber (President Antonio Cassese and Judges Haopei Li, Ninian Stephen and Lal Chand Vohrah) suggest that the relevant documents should be submitted to the scrutiny of one judge; while Judge Adolphus Karibi-Whyte has appended a separate opinion, stating that such scrutiny should be undertaken by the entire Trial Chamber, and not by a single judge.

Finally, the Appeals Chamber concludes that state officials are beyond the reach of the Tribunal. Those officials, when acting in their official capacity, "cannot receive subpoenae or binding orders: they are mere instruments of a State and for all acts involving action by a State, the Tribunal must turn to the relevant State."

Even though this was not the issue of dispute with Croatia, the Appeals Chamber has reiterated that the Tribunal "can issue binding orders in the form of subpoenae to individuals acting in their private capacity."