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

Immunity of state officials and prosecution of international crimes 49
not been met for the issuance of the subpoenas. 84 However, in 1997 the
Trial Chamber of the ICTY (Judge MacDonald) allowed motions for the
issuance of subpoena duces tecum against the Government of Croatia and its
Defence Minister, Gojko Sušak, directing the state and its official to
comply with the order. 85 Judge MacDonald held that the ICTY had
jurisdiction to issue subpoenas duces tecum against states and individual
state officials as it is an international tribunal. 86 The Chamber held that
subpoenas duces tecum were necessary for fairness and the expedition of the
trial and in order to guarantee the rights of the accused. 87 It considered that
states as well as individual state officials have the same way of complying
with orders from international tribunals 88 and, therefore, the fact that the
person identified by an international tribunal is a state official does not
preclude the issuance of subpoenas duces tecum. 89 The decision of the Trial
Chamber was in line with Rule 54 of the Rules of Procedure and Evidence
of the ICTY which allows subpoenas to be issued against individuals for
the preparation or conduct of a trial.
However, the Appeals Chamber of the ICTY reviewed the decision of
the Trial Chamber in the Blaškić case and suspended the subpoenas duces
tecum issued against Croatia and its Defence Minister. It held rather
surprisingly that subpoenas duces tecum cannot be issued against states. 90
The Appeals Chamber relied on the principle of state sovereignty. In its
conclusion, the Appeals Chamber held that ‘both under general
international law and the Statute itself, Judges or Trial Chambers cannot
address binding orders to State officials’. 91 It dismissed the possibility of
the ICTY ‘addressing subpoenas to state officials in their official
capacity’. 92 By so holding, the Chamber emphasised that such state
officials cannot be subjects of subpoenas.
In my opinion the Appeals Chamber was wrong and created confusion
on the issue. International tribunals have inherent powers 93 to issue
84
Prosecutor v Milošević paras 67 and 69(b) and (c).
85 Prosecutor v Blaškić (Case IT-95-14-PT) Decision on the Objection of the Republic of
Croatia to the issuance of Subpoenae Duces Tecum, Trial Chamber II, 18 July 1997
paras 1 and 2.
86 Prosecutor v Blaškić paras 24 and 31; Prosecutor v Blaškić (Case IT-95-14-PT) Decision on
the Admissibility of the Request for Review by the Republic of Croatia of an
Interlocutory Decision of a Trial Chamber (Issuance of Subpoenae Duces Tecum) and
Scheduling Order, 29 July 1997, Appeals Chamber para 2 (A)-(F).
87 Prosecutor v Blaškić para 32.
88
Prosecutor v Blaškić paras 33 and 34.
89 Prosecutor v Blaškić para 69.
90 Prosecutor v Blaškić (Case IT-95-14) Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 Appeals
Chamber reversing the decision of the Trial Chamber 18 July 1997 para 25.
91 Prosecutor v Blaškić paras 43 and 44.
92
Prosecutor v Blaškić para 38.
93 Prosecutor v Tadić (Case IT-94-1-AR72) Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995, whereby the Appeals Chamber
of ICTY decided that it had jurisdiction to determine the validity of its own
establishment.