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Subpoena Appeal Hearing Continuation of the Blaskic Trial

Tribunal Update 45: Last Week in The Hague (September 22-26)
By IWPR ICTY

The appeal hearing which continued last week, stems from a writ issued earlier this year against Croatia, which demanded the release of certain papers as evidence in the case against General Tihomir Blaskic who is accused of war crimes committed in the Lasva Valley in central Bosnia in April 1993.

Dr Ivan Simonovic, Croatia's representative at the UN, told the Appeals Chamber that the issuing of subpoenas to states and state officials is "legally unfounded, logically inconsistent and politically unacceptable."

In response, Chief Prosecutor Louise Arbour repeated the prosecution's arguments concerning "inherent and express powers" -written down in the Statute and the Rules of the Procedure -to issue compulsory orders to sovereign states for the production of evidence.

She insisted that the assertion of national security claims cannot be a "blanket excuse" for the refusal to execute such orders. Since Croatia does not now dispute the right of the Tribunal to issue compulsory orders, the dispute is now down to whether these issues can take the form of a subpoena. Zagreb argues that only the UN Security Council has the right to threaten sanctions.

When deciding on these issues, the Appeals Chamber will keep in mind the opinions submitted by international law experts, NGO's and governments, who were invited to join the discussion. Croatia has not been very successful thus far in mobilising support for its position. Only China has come out in favour of Zagreb.

In its brief sent to the Appeals Chamber, the Chinese government maintains that in issuing such orders to Zagreb and its Defence Minister Gojko Susak, the Tribunal went "beyond the mandate given to it." Like Croatia, Beijing belives that "the ultimate power of judgement on whether or not a state has fulfilled its obligation can rest only with the Security Council."

Except for China, all the other governments which sent in opinions, have deemed that the Tribunal is very much empowered to issue compulsory orders to states and state officials for the production of evidence. According to Norway, The Netherlands, Canada and New Zealand, these powers are derived both from the express stands contained in the Security Council Resolution on the founding of the Tribunal and from so-called "implied powers" which is accepted under international law.

According to the governments of Canada and New Zealand, "even if the authority to issue an order for production of evidence were not provided in the Statute, such an authority would arise by necessary implication as being essential to the performance of the Tribunal's duties. The members of the Security Council, in entrusting certain functions to the Tribunal, with the attendant duties and responsibilities, must be understood to have clothed it with the competence required to enable those functions to be effectively discharged."

The point on which nearly all agree is that sanctions can be discharged only by the Security Council after the Tribunal has found a state to be uncooperative vis a vis a compulsory order. The Netherlands however believes the effectiveness of the Tribunal will be impaired if it is to be left dependent on the council.

The Dutch government argued that "the implied powers of the International Criminal Tribunal for Former Yugoslavia, make it desirable for there to be a provision comparable to Rule 77 (Contempt of the Tribunal), which would be applicable to states, so that fines and other penalties may be imposed when ever the Tribunal establishes that the state has not fulfilled its obligations."

Concluding the hearing, President of the Appeals Chamber Antonio Cassese announced that the decision concerning the Croatian appeal will be made in three weeks' time, so that further delays in the trial of Blaskic can be avoided.