Prosecuting International Crimes in Africa - PULP - University of ...

48 Chapter 2
developed by international courts. The applicant for a subpoena requiring
a person to give testimony or submit to an interview must show that three
conditions are satisfied: ‘(i) reasonable attempts have been made to obtain
the voluntary cooperation of witnesses; (ii) the prospective witness has
information which can materially assist the applicant in respect of clearly
identified issues relevant to the trial; and (iii) the witness’s testimony must
be necessary and appropriate for the conduct and fairness of the trial’. 79
Subpoenas are not issued lightly. 80 Also, information sought from
prospective witnesses must not be obtainable by other means except by
subpoena. 81
The ICTY and ICTR have taken inconsistent positions on subpoenas
against serving state officials. In 2005, when Slobodan Milošević requested
the ICTY to issue subpoenas for a pre-testimony interview against the then
serving Prime Minister of the United Kingdom (Tony Blair) and former
Chancellor of Germany (Gerhard Schroder), 82 the tribunal did not issue
the subpoenas. The Governments of the United Kingdom and Germany
had argued that such leaders enjoyed immunity from testifying before the
ICTY. 83 The Trial Chamber of ICTY rejected the application and did not
address the question of immunity because it had found that conditions had
79 Prosecutors v Bagosora et al (Case ICTR-98-41-T) Decision on Request for Subpoenas of
United Nations Officials, Request for Subpoenas of Kofi Annan, Iqbal Riza, Shaharyar
Khan and Michel Hourigan Pursuant to Rule 54 of 25 August 2006 Trial Chamber I
Decision of 6 October 2006 para 3; Prosecutor v Krstic (Case IT-98-33-A) Decision on
Application for Subpoenas, Appeals Chamber of ICTY 1 July 2003, para 10; Prosecutor
v Halilović (Case IT-01-48-AR73) Decision on the Issuance of Subpoenas, Appeals
Chamber of ICTY, 21 June 2004, para 7; Prosecutor v Bagosora et al Decision on Request
for a Subpoena, Trial Chamber of ICTR, 11 September 2006, para 5; Prosecutor v
Karemera et al (Case ICTR-98-44-T), Decision on Defence Motion for Issuance of
Subpoena to Witness T, Trial Chamber of ICTR, 8 February 2006 para 4; Prosecutor v
Bagosora et al (Case ICTR-98-41-T) Decision on Ntabakuze Motion for Information
from the UNHCR and a Meeting with one of its Officials, Trial Chamber I, 6 October
2006 paras 6 and 9 and accompanying text in fn 7 and 8 of para 6; Prosecutor v Bagosora
et al (Case ICTR-98-41-T) Decision on Request for Cooperation of the Government of
France Trial Chamber I, 6 October 2006 para 2.
80 Prosecutor v Halilović (Case IT-01-48-AR73) Decision on the Issuance of Subpoenas,
Appeals Chamber of ICTY, 21 June 2004 para 7.
81 Prosecutors v Bagosora et al Decision on Request for a Subpoena, Trial Chamber of ICTR,
11 September 2006 para 6; Prosecutor v Karemera et al Decision on Nzirorera’s Ex Parte
Motion for Order for Interview of Defence Witnesses NZ1, NZ2 Trial Chamber of
ICTR, 12 July 2006 para 12; Prosecutor v Milošević (Case IT-02-54-T) Decision on
Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard
Schroder Trial Chamber of ICTY, 9 December 2005 paras 30 and 33. See also para 9
referring to Rule 54bis of the Rules of Procedure and Evidence of the ICTY.
82 Prosecutor v Milošević (Case IT-02-54-T) Request for Binding Order to be Issued to the
Government of the United Kingdom for the Cooperation of a Witness pursuant to Rule
54bis, 18 August 2005 para 19 which requested the Trial Chamber of ICTY to ‘(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’.
83 Prosecutor v Milošević Decision on Assigned Counsel Application for Interview and
Testimony of Tony Blair and Gerhard Schroder Trial Chamber of ICTY, 9 December
2005 para 2.