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

50 Chapter 2
subpoenas against private individuals and state officials alike. 94 In this
regard, the decision of the Trial Chamber in Blaškić case must be followed
as authority on subpoenas against state officials. This is supported by the
decision of the Appeals Chamber of the ICTY in the subsequent
developments on the law in 2003 in which it departed from its own
decision in the Blaškić case. In Prosecutor v Krštić, 95 the Appeals Chamber
of the ICTY stated categorically that the ICTY may compel senior state
agents to testify before it, whether or not such agents witnessed the relevant
facts in their official capacity. Here, the Appeals Chamber clarified that the
proper procedure to call the state official to be interviewed or testify as a
witness before the Tribunal is by way of issuing a subpoena ad testificandum
under Rule 54 of the Rules of Procedure and Evidence of the ICTY.
Therefore, the Appeals Chamber gave an order that a subpoena be issued
against the two state officials as prospective witnesses to attend a location
in Bosnia and Herzegovina at a time to be nominated by the defence in
order to be interviewed. 96
Since the majority decision in the Appeals Chamber in Krštić case, a
number of Trial Chambers have issued ‘subpoenas to state officials for
both testimony and pre-testimony-interviews’. 97 In this regard, the
position by the Appeals Chamber of the ICTY in Krštić and subsequent
cases as stated above must be followed as authoritative on the question of
subpoenas duces tecum.
For its part, the ICTR has also contributed to the confusion on the
issue of subpoenas against serving state officials as the Trial Chambers of
the ICTR have issued conflicting decisions. On the one hand, the
Chambers have accepted that state officials can be subpoenaed to appear
and testify or produce evidence before the ICTR, and on the other hand,
the Chambers have held that state officials cannot be subpoenaed before
the ICTR. These two positions are examined here. Since the ICTR and
94 H Fox ‘Some aspects of immunity from criminal jurisdiction of the state and its
officials: The Blaškić case’ in LC Vohrah et al (eds) Man’s inhumanity to man: Essays on
international law in Honour of Antonio Cassese (2003) 297-307, 298.
95 Prosecutor v Krštić ICTY Appeal Chamber, Decision on Application for Subpoenas para
27.
96
Prosecutor v Krštić para 29.
97 Prosecutor v Milošević para 16 (referring to Prosecutor v Martić (Case IT-95-11-PT)
Decision on the Prosecution’s Additional Filing Concerning 3 June 2005 Prosecution
Motion for Subpoena, 16 September 2005; Prosecutor v Halilović (Case IT-01-48-T)
Decision on Prosecution’s Motion for Issuance of a Subpoena Ad Testificandum and
Order for Lifting Ex Parte Status, 8 April 2005; Prosecutor v Strugar (Case IT-01-42-T)
Subpoena ad Testificandum 28 June 2004; Prosecutor v Blagojević (Case IT-02-60-T Order
In re Defence’s Request for the Issuance of Subpoenas ad Testificandum, Orders for Safe
Conduct and an Order for the Service and Execution of the Subpoenas and Orders for
Safe Conduct, 5 May 2004; Prosecutor v Brdanin and Talić (Case IT-99-36-T) Subpoena ad
Testificandum, 17 July 2003; Prosecutor v Milošević (Case IT-02-54-T) Decision on the
Prosecution’s Application for Issuance of a Subpoena ad Testificandum for Witness K33
and Request for Judicial Assistance Directed to the Federal Republic of Yugoslavia, 5
July 2002).