Trial Chamber Denies The Prosecuter' Request

Saturday, 5 April, 1997

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IWPR ICTY

Croatia and the Bosniak-Croat Federation, and their defence ministers Gojko Susak and Ante Jelavic respectively, failed to meet the requirements of the subpoena duces tecum of January 15, 1997, to hand over documentary evidence relating to the Blaskic case.

In response, Trial Chamber II presiding Judge Gabrielle Kird McDonald scheduled a public debate about the power of the Tribunal to issue a subpoena duces tecum to a sovereign state and to high government officials , and on "the appropriate remedies to be taken if there is non-compliance. . . . " (See Update 16-20 for the background to this debate.)

However, on March 20, the Prosecution requested Trial Chamber II "to narrow the issues", in order to focus on the facts at issue in the present litigation. The prosecution holds that the hearing should address the issuing of subpoenas to Croatia and Bosnia specifically.

It justifies this request by referring to "the unique mandate of the Tribunal in respect of the territory of the former Yugoslavia. . . , and given that the subpoenas were issued in relation to a criminal trial that is due to start imminently."

In Update 20, we described the prosecution's request as a possible preventive move, to avoid a situation where a court decision confirming the Tribunal's right to issue subpoenas gives the defence a blank cheque to request that states outside

the former Yugoslavia be bound to hand over documents from their archives in the same manner.

If that was the prosecutor's motive, Croatia saw through it and blocked it. In its response, Croatia strongly objected to the Prosecutor's request, considering it to be "unacceptable". To accept a hearing on the application of a subpoena duces tecum "to selected states only, without applying the same principles to all states equally, would," according to Croatia, "constitute a gross violation of international law [. . . ] of the principles of sovereignty, equality and parity of states, and the ban on the use of discriminatory measures against states."

This is, furthermore, "especially pertinent to this case, since it is clear that all the states which participated in the UN peacekeeping operations in Croatia and Bosnia and Herzegovina, as well as the UN itself, have information that might be of relevance to the Tribunal."

The reply from Zagreb ends with a warning that "the Republic of Croatia and its representatives shall not attend the hearing [on discriminatory application of subpoena], nor shall they consider the hearing and its decision binding. Furthermore, the adoption of such a decision would bring into question any future cooperation between the Republic of Croatia and the International Criminal Tribunal."

Although the third party in the quarrel-Bosnia and Herzegovina-expressed full support for the Prosecutor's suggestion, Trial Chamber II, "considering the significance of the issues to be addressed [. . . ] and the objections raised by the Republic of Croatia," has denied the Prosecutor's request. In consequence, the April 16 hearing will deal with the Tribunal power to issue a subpoena duces tecum to all sovereign states, and not only to those from the former Yugoslavia.

In asking for a hearing on the Tribunal's right to order "all states" and "the UN itself" to furnish relevant information, Zagreb seems to be calculating on two possible outcomes.

First, the Tribunal would not dare to interpret its powers so widely as to enable the prosecution and the defence to call to account "all states", the UN, and even NATO-this could affect international enthusiasm for the Tribunal.

Second, even if the Tribunal dares to take such a step, Zagreb calculates that "all states", and the great powers in particular, will be unwilling to cooperate under such conditions, or to open their secret archives, and this will make it easier for Croatia to act in the same way.