The problem of obtaining evidence for international criminal courts

Human Rights Quarterly

Volumn 22, Issue 2, 2000, Pages 404-427

  Cogan, Jacob Katz ^a,b,c,d,e  

^a US Ct Appeals the Fifth Circuit ^*  (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

^c PRINCETON UNIVERSITY   (United States)

^d YALE UNIVERSITY   (United States)

^e U Nations Office of Legal Affairs

Author keywords

[No Author keywords available]

Indexed keywords

EID: 9744256298     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2000.0021     Document Type: Article

References (148)

1. The author served as a legal intern in the United Nations Office of Legal Affairs at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, where the Rome Statute of the International Criminal Court was adopted in July 1998. In no way does this article make use of any confidential information to which the author may have been privy, nor does it necessarily represent the views of the Office of Legal Affairs.
2. See DAVID MCCLEAN, INTERNATIONAL JUDICIAL ASSISTANCE (1992).
3. International courts are dependent on state cooperation in a host of other matters as well, including, most importantly, the arrest, detention, and transfer of indicted persons. A number of states have enacted statutes to facilitate cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) on these matters. See, e.g., Colin Warbrick & Dominic McGoldrick, Current Developments in Public International Law: Co-operation with the International Criminal Tribunal for Yugoslavia, 45 INT'L & COMP. L.Q. 947 (1996) (reviewing the British statute).
4. The Tadic Court recognized this problem in the context of calling witnesses to testify, stating that it is "a difficulty encountered by both parties . . . [due to] their limited access to evidence in the territory of the former Yugoslavia." The court decided, however, that the "steps . . . taken by the International Tribunal to assist the parties. . . . did appear to alleviate the inherent difficulties of the situation." Opinion and Judgment, Prosecutor v. Tadic, Case No. IT-94-1-T, T. Ch. II, ¶¶ 530-31 (ICTY 7 May 1997), available at 〈http://www.un.org/icty/tadic/trialc2/judgement-e/tad-tj970507e.htm〉 (visited 16 Feb. 2000) [hereinafter Tadic: Opinion and Judgment]. This aspect of the Trial Chamber's decision was one of the grounds for the defendant's appeal, which the Appeals Chamber recently rejected, endorsing the principle of "equality of arms" but rejecting the contention that the principle was violated in this case. Judgment, Prosecutor v. Tadic, Case Number IT-94-1, App. Ch., ¶¶ 43-56 (ICTY 15 July 1999), available at 〈http://www.un.org/icty/tadic/appeal/judgement/tad-aj990715e.htm〉 (visited 16 Feb. 2000) [hereinafter Tadic: Appeals Chamber Judgement].
5. Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch. II (ICTY 18 July 1997), available at 〈http://www.un.org/icty/blaskic/trialc1/decisions-e/70718SP2.htm〉 (visited 16 Feb. 2000) [hereinafter Blaškić I].
6. Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, Case IT-95-14-AR108bis, App. Ch., ¶¶ 25-26 (ICTY 29 Oct. 1997), available at 〈http://www.un.org/icty/blaskic/appeal/ decision-e/71029JT3.html〉 (visited 16 Feb. 2000) [hereinafter Blaškić II]. As this article was going to press, the Trial Chamber found Blaškić guilty and sentenced him to forty-five years in prison. See Prosecutor v. Blaškić, Judgment: Trial Chamber, Case IT-95-14-T, 3 Mar. 2000 (visited 15 Mar. 2000), available at 〈http://www.un.org/icty/blaskic/ trialcl/judgement/index-f.htm〉. Unfortunately, I have been unable to include in this article a discussion of the court's decision.
7. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 86-102, U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter Rome Statute].
8. The ICTY, to date, has confronted the question of fair trials most directly in connection with witness protection. See Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 83-84 (1999). See also Sara Stapleton, Note, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 N.Y.U. J. INT'L L. & POL. 535 (1999). The court, however, has not spoken generally on the topic. But see Tadic: Appeals Chamber Judgment, supra note 4, ¶ 55 ("The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.").
9. The ICTY, to date, has confronted the question of fair trials most directly in connection with witness protection. See Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 83-84 (1999). See also Sara Stapleton, Note, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 N.Y.U. J. INT'L L. & POL. 535 (1999). The court, however, has not spoken generally on the topic. But see Tadic: Appeals Chamber Judgment, supra note 4, ¶ 55 ("The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.").
10. To date, there has been only limited discussion of the Blaškić Case in the scholarly literature. See, e.g., Murphy, supra note 8, at 81-82; Yves Nouvel, Précisions sur le pouvoir du Tribunal pour l'ex-Yugoslavie d'ordonner la production des preuves et la comparution des témoins: L'Arrêt de la Chambre d'appel du 29 octobre 1997 dans l'affaire Blaškić, 102 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 157 (1998); Göran Sluiter, Obtaining Evidence for the International Criminal Tribunal for the Former Yugoslavia: An Overview and Assessment of Domestic Implementing Legislation, 45 NETH. INT'L L. REV. 87, 90-91 (1998); Anne Bodley, Note, Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the Former Yugoslavia, 31 N.Y.U. J. INT'L L. & POL. 417, 459-68 (1999).
11. To date, there has been only limited discussion of the Blaškić Case in the scholarly literature. See, e.g., Murphy, supra note 8, at 81-82; Yves Nouvel, Précisions sur le pouvoir du Tribunal pour l'ex-Yugoslavie d'ordonner la production des preuves et la comparution des témoins: L'Arrêt de la Chambre d'appel du 29 octobre 1997 dans l'affaire Blaškić, 102 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 157 (1998); Göran Sluiter, Obtaining Evidence for the International Criminal Tribunal for the Former Yugoslavia: An Overview and Assessment of Domestic Implementing Legislation, 45 NETH. INT'L L. REV. 87, 90-91 (1998); Anne Bodley, Note, Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the Former Yugoslavia, 31 N.Y.U. J. INT'L L. & POL. 417, 459-68 (1999).
12. To date, there has been only limited discussion of the Blaškić Case in the scholarly literature. See, e.g., Murphy, supra note 8, at 81-82; Yves Nouvel, Précisions sur le pouvoir du Tribunal pour l'ex-Yugoslavie d'ordonner la production des preuves et la comparution des témoins: L'Arrêt de la Chambre d'appel du 29 octobre 1997 dans l'affaire Blaškić, 102 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 157 (1998); Göran Sluiter, Obtaining Evidence for the International Criminal Tribunal for the Former Yugoslavia: An Overview and Assessment of Domestic Implementing Legislation, 45 NETH. INT'L L. REV. 87, 90-91 (1998); Anne Bodley, Note, Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the Former Yugoslavia, 31 N.Y.U. J. INT'L L. & POL. 417, 459-68 (1999).
13. General Framework Agreement for Peace in Bosnia and Herzegovina, U.N. Doc. S/ 1995/999 (1995), reprinted in 35 I.L.M. 75 (1996) [hereinafter General Framework Agreement].
14. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, U.N. SCOR, Annex, U.N. Doc. S/25704 (1993), reprinted in 32 I.L.M. 1159, 1192 (1994) [hereinafter ICTY Statute].
15. U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945).
16. See Indictment, Prosecutor v. Kordić, Case No. IT-95-14-1, ¶ 3 (ICTY 2 Nov. 1995), available at 〈http://www.un.org/icty/indictment/english/bla-ii951110e.htm〉 (visited 16 Feb. 2000) [hereinafter Blaškić Indictment]. The Croatian Association of Former Prisoners in Serbian Concentration Camps has sponsored an Internet site on the Blaškić case that details his biography and his defense strategy. Croatian Association of Former Prisoners in Serbian Concentration Camps, Tihomir Blaškić at the "International Criminal Tribunal for former Yugoslavia" - A Prosecution (visited 16 Feb. 2000) 〈http:// jagor.srce.hr/zatocenici/blaskicen.htm〉.
17. See Indictment, Prosecutor v. Kordić, Case No. IT-95-14-1, ¶ 3 (ICTY 2 Nov. 1995), available at 〈http://www.un.org/icty/indictment/english/bla-ii951110e.htm〉 (visited 16 Feb. 2000) [hereinafter Blaškić Indictment]. The Croatian Association of Former Prisoners in Serbian Concentration Camps has sponsored an Internet site on the Blaškić case that details his biography and his defense strategy. Croatian Association of Former Prisoners in Serbian Concentration Camps, Tihomir Blaškić at the "International Criminal Tribunal for former Yugoslavia" - A Prosecution (visited 16 Feb. 2000) 〈http:// jagor.srce.hr/zatocenici/blaskicen.htm〉.
18. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
19. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
20. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
21. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
22. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
23. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
24. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
25. See Blaškić Indictment, supra note 13. For background to the Bosnian war, see, amongst numerous writings, WAYNE BERT, THE RELUCTANT SUPERPOWER: UNITED STATES' POLICY IN BOSNIA, 1991-1995 (1997); NORMAN CIGAR, GENOCIDE IN BOSNIA (1995); ROBERT J. DONIA & JOHN V.A. FINE, JR., BOSNIA & HERCEGOVINA: A TRADITION BETRAYED (1994); MISHA GLENNY, THE FALL OF YUGOSLAVIA: THE THIRD BALKAN WAR (1994); NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994); MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994); DAVID RIEFF, SLAUGHTERHOUSE: BOSNIA AND THE FAILURE OF THE WEST (1995); DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997).
26. See Blaškić Indictment, supra note 13, ¶ 3.
27. See CIGAR, supra note 14, at 125-26.
28. On the creation of the ICTY and the prosecution of its first trial, see MICHAEL P. SCHARF, BALKAN JUSTICE (1997). See also THE PROSECUTION OF INTERNATIONAL CRIMES (Roger Clark & Madeleine Sann eds., 1996). There are two published compilations of documents related to the establishment and functioning of the ICTY: M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996); VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995).
29. On the creation of the ICTY and the prosecution of its first trial, see MICHAEL P. SCHARF, BALKAN JUSTICE (1997). See also THE PROSECUTION OF INTERNATIONAL CRIMES (Roger Clark & Madeleine Sann eds., 1996). There are two published compilations of documents related to the establishment and functioning of the ICTY: M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996); VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995).
30. On the creation of the ICTY and the prosecution of its first trial, see MICHAEL P. SCHARF, BALKAN JUSTICE (1997). See also THE PROSECUTION OF INTERNATIONAL CRIMES (Roger Clark & Madeleine Sann eds., 1996). There are two published compilations of documents related to the establishment and functioning of the ICTY: M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996); VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995).
31. On the creation of the ICTY and the prosecution of its first trial, see MICHAEL P. SCHARF, BALKAN JUSTICE (1997). See also THE PROSECUTION OF INTERNATIONAL CRIMES (Roger Clark & Madeleine Sann eds., 1996). There are two published compilations of documents related to the establishment and functioning of the ICTY: M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996); VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995).
32. See Blaškić Indictment, supra note 13, ¶¶ 35-38. The Blaškić indictment has been amended twice. Amended Indictment, Prosecutor v. Blaškić, Case No. IT-95-14-PT, T. Ch. I (ICTY 15 Nov. 1996), available at 〈htt://www.un.org/icty/indictment/english/ bla-1ai961122e.htm〉 (visited 16 Feb. 2000); Second Amended Indictment, Prosecutor v. Blaškić, Case No. ICTY-95-14-PT, T. Ch. I (ICTY 25 Apr. 1997), available at 〈http:// www.un.org/icty/indictment/english/bla-2ai970425e.htm〉 (visited 16 Feb. 2000).
33. See Robert Marquand, Bosnia Trial Shows Court's Rising Clout, CHRISTIAN SCI. MONITOR, 1 Oct. 1997, at 6.
34. The timing of the subpoenas was curious, as it came on the eve of the trial, which had already been postponed once before.
35. Judge McDonald began her career as a civil rights lawyer and was appointed by President Jimmy Carter to the federal bench in 1979. She was one of the first judges appointed to the ICTY in 1993. After serving as a member of the Trial Chamber, Judge McDonald was made a member of the Appeals Chamber and President of the ICTY. She retired in the fall of 1999. See Marlise Simons, Then It Was the Klan, Now It's the Balkan Agony, N.Y. TIMES, 13 Jan. 1999, at A4; James Walsh, "I'm Kind of A Crusader": With the First Bosnian War-Crimes Sentence, Judge Gabrielle McDonald Vents Her Passion for Justice, TIME (int'l ed.), 28 July 1997, at 38, available in 1997 WL 10902692.
36. Judge McDonald began her career as a civil rights lawyer and was appointed by President Jimmy Carter to the federal bench in 1979. She was one of the first judges appointed to the ICTY in 1993. After serving as a member of the Trial Chamber, Judge McDonald was made a member of the Appeals Chamber and President of the ICTY. She retired in the fall of 1999. See Marlise Simons, Then It Was the Klan, Now It's the Balkan Agony, N.Y. TIMES, 13 Jan. 1999, at A4; James Walsh, "I'm Kind of A Crusader": With the First Bosnian War-Crimes Sentence, Judge Gabrielle McDonald Vents Her Passion for Justice, TIME (int'l ed.), 28 July 1997, at 38, available in 1997 WL 10902692.
37. The Subpoena Duces Tecum to the Republic of Croatia directed Defense Minister Cojko Šušak to provide, inter alia, [a]ll directives and orders, signed and unsigned, directed to Tihomir Blaškić[,] . . . [a]ll orders, communications and directives, signed and unsigned, directed to Mate Boban, the General Staff of the HVO and the Ministry of Defense of the Croatian Community of Herceg Bosna and its representatives, . . . from 1 April 1992 to 1 January 1994[, and] [a]ll Croatian government Ministry of Defense documents, records, reports and orders reflecting the presence of HV military personnel and their activities in the Republic of Bosnia and Herzegovina from November 1991 to 1 July 1994. . . . Subpoena Duces Tecum to the Republic of Croatia, Prosecutor v. Blaškić, Case No. IT-95-14-T, Judge McDonald (ICTY 15 Jan. 1997) (Registry Page no. (RP) D488-93).
38. Paragraph 1 of the Brief of the Republic of Croatia on Subpoenae Duces Tecum provides that: "It is the position of the Croatian Government that a subpoena duces tecum, as an order issued 'under penalty,' has no legal grounds as a form of communication between the Tribunal and sovereign States and their government officials." Brief of the Republic of Croatia on Subpoenae Duces Tecum, Prosecutor v. Blaškić, T. Ch. II, Case No. IT-95-14-PT, ¶ 1 (ICTY 1 Apr. 1997) (RP D3682-84); Republic of Croatia, Reply to Subpoena Duces Tecum, Prosecutor v. Blaškić, Case No. IT-95-14-PT, T. Ch. I (ICTY 10 Feb. 1997) (RP D3261-63).
39. 5ee Blaškić I, supra note 5.
40. See Blaškić II, supra note 6.
41. See id. ¶ 17 (noting that China, the Netherlands, Canada and New Zealand, Norway, Ruth Wedgwood, Max Planck Institute for Foreign and International Criminal Law, Juristes sans frontières and Alain Pellet, Carol Elder Bruce, and Herwig Roggemann submitted amicus curiae briefs); Blaškić I, supra note 5, ¶ 10 (noting that the following were given leave to submit amicus briefs to the Trial Chamber: Bruno Simma, Bartram Brown, the Croatian Association of Criminal Science and Practice, the Lawyers Committee for Human Rights, Juristes sans frontières, Luigi Condorelli, the Max Planck Institute for Comparative Public Law and International Law, Peter Malanczuk, Juan-Antonio Carrillo Salcedo, Thomas Warrick et al., Ruth Wedgwood, and Annelisa Ciampri). See also Order Granting Leave to Appear as Amicus Curiae [Various], Prosecutor v. Blaškić, Trial Chamber, Case No. IT-95-14-PT, T. Ch. II (ICTY 11 Apr. 1997), available at 〈http://www.un.org/icty/blaskic/orde14.htm〉 (visited 16 Feb. 2000) (inviting, among others, Juristes sans frontières, Luigi Condorelli, the Croatian Association of Criminal Science and Practice, Andreas Zimmermann, Ruth Wedgwood, Marie-José Domestici-Met, Peter Malanczuk, and the Lawyers Committee for Human Rights to appear at oral argument). Of the permanent five members of the Security Council, only China submitted a brief in the case.
42. See infra note 98 and accompanying text.
43. Marquand, supra note 19, at 6 (quoting Arbour).
44. Id. (quoting Arbour). In a speech given before the Appeals Chamber decision, she stated: "I believe this may be the single most important issue that I will have to address in my term of office as Chief Prosecutor. . . . This is an absolutely critical phase in the development of the ICTY." Louise Arbour, The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results, 3 HOFSTRA L. & POL'Y SYMP. 37, 38 (1999).
45. Marquand, supra note 19, at 6 (quoting Hayman). See also Tracy Wilkinson, Reason to Take on War Crimes, L.A. TIMES, 15 May 1998, at A1.
46. Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. GAOR, 49th Sess., Provisional Agenda Item 152, ¶ 84, U.N. Doc. A/49/342-S/1994/1007, at 3, 27 (1994) [hereinafter First Annual Report].
47. According to Kenneth Anderson, "[T]hose who want to imitate Nuremberg in Yugoslavia have deeply mistaken what the Nuremberg trial was all about. At its core Nuremberg was about foregoing what was in one's hand; this Yugoslavia tribunal wants to grasp what the world has not been willing to put there." Kenneth Anderson, Nuremberg Sensibility: Tel ford Taylor's Memoir of the Nuremberg Trials, 7 HARV. HUM. RTS. J. 281, 293 (1994) (book review).
48. First Annual Report, supra note 31, ¶ 84.
49. See STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 225 (1997).
50. "Prosecutors require more than names of military commanders or even witness accounts about cruelty and killing. To build their case against commanders, they need to link those responsible for crimes directly to the events and to present proof of who gave orders and who knew about atrocities." Marlise Simons, Court Calls for Evidence, Not Politics, N.Y. TIMES, 9 Apr. 1999, at A11.
51. See Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia Since 1991, U.N. GAOR, 53rd Sess., ¶ 123, U.N. Doc. A/53/219-S/1998/737 (1998) ("Productive working relationships with organizations in the former Yugoslavia continues to be crucial to the success of the Prosecutor's investigations."). IFOR is now assisting the war crimes investigators in their work in Kosovo. See Marlise Simons, Crisis in the Balkans: War Crimes Investigators Prepare for Kosovo, N.Y. TIMES, 7 June 1999, at A11 ("Britain has offered to escort investigators as its troops enter Kosovo to help them start their inquiries immediately. . . . [Prosecutor Arbour] has also asked some NATO members to fly special missions with the unmanned reconnaissance planes known as drones in order to collect information of value for the tribunal. . . .").
52. See Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia Since 1991, U.N. GAOR, 53rd Sess., ¶ 123, U.N. Doc. A/53/219-S/1998/737 (1998) ("Productive working relationships with organizations in the former Yugoslavia continues to be crucial to the success of the Prosecutor's investigations."). IFOR is now assisting the war crimes investigators in their work in Kosovo. See Marlise Simons, Crisis in the Balkans: War Crimes Investigators Prepare for Kosovo, N.Y. TIMES, 7 June 1999, at A11 ("Britain has offered to escort investigators as its troops enter Kosovo to help them start their inquiries immediately. . . . [Prosecutor Arbour] has also asked some NATO members to fly special missions with the unmanned reconnaissance planes known as drones in order to collect information of value for the tribunal. . . .").
53. Raymond Bonner, Crimes Court Not Ready to Punish Kosovo Violence, N.Y. TIMES, 31 Mar. 1999, at A11 (quoting Richard Coldstone).
54. Id.
55. Id. (quoting Michael Posner). Cf. Raymond Bonner, Despite Indictment, Politicians and Diplomats Control Milosevic's Future, N.Y. TIMES, 28 May 1999, at A13 (pointing out that, despite Milosevic's indictment, the ICTY is still dependent on states to apprehend him).
56. See Marquand, supra note 19, at 6.
57. See Bonner, supra note 37, at A11 (reporting that "[u]ntil now Western Governments have been disinclined to share their intelligence information"); Raymond Bonner, War Crimes Panel Finds Croat Army 'Cleansed' Serbs, N.Y. TIMES, 21 Mar. 1999, at A1 (reporting that "the United States has failed to provide critical evidence requested by the tribunal" so that its involvement in the Balkan war might remain concealed).
58. The ICTY's indictment of Slobodan Milosevic in the midst of the Kosovo air campaign raised similar concerns. Might not the ICTY's actions hamper attempts to end the conflict? See Jane Perlez, Some Fears Over Talks; Aides Worry, N.Y. TIMES, 28 May 1999, at A10. In all likelihood, however, the Milosevic indictment was issued with the prior tacit consent of Western governments, upon whom the ICTY would have been reliant for evidence to support its accusations. See also Bonner, supra note 37, at A11, and accompanying text.
59. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
60. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
61. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
62. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
63. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
64. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
65. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
66. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
67. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
68. For some selected recent histories and appraisals of the idea of an international criminal court, see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. ON WORLD Aff. 77 (1994); John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed., 1992); John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 329 (1997); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 PACE INT'L L. REV. 121 (1994); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73 (1995); Michael P. Scharf, The Politics of Establishing an International Criminal Court, 6 DUKE J. COMP. & INT'L L. 167 (1995); Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT'L L.J. 665 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, 46 HASTINGS L.J. 909 (1995). For a useful collection of documents, see BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD PEACE - A DOCUMENTARY HISTORY AND ANALYSIS (1980).
69. According to one estimate, over three hundred human rights and legal reform associations, including the American Bar Association, have argued in favor of an ICC. See Douglas W. Cassel, Jr., A New International Criminal Court: Will It Be Independent?, CHI. DAILY L. BULL., 9 Mar. 1998, at 6; World Criminal Court: All Gum, No Teeth?, ECONOMIST (London), 14 Mar. 1998, at 50. Many of these NGOs have banded together to form the Coalition for an International Criminal Court. See The CICC International Criminal Court Home Page (visited 10 Feb. 2000) 〈http://www.igc.org/icc〉.
70. According to one estimate, over three hundred human rights and legal reform associations, including the American Bar Association, have argued in favor of an ICC. See Douglas W. Cassel, Jr., A New International Criminal Court: Will It Be Independent?, CHI. DAILY L. BULL., 9 Mar. 1998, at 6; World Criminal Court: All Gum, No Teeth?, ECONOMIST (London), 14 Mar. 1998, at 50. Many of these NGOs have banded together to form the Coalition for an International Criminal Court. See The CICC International Criminal Court Home Page (visited 10 Feb. 2000) 〈http://www.igc.org/icc〉.
71. According to one estimate, over three hundred human rights and legal reform associations, including the American Bar Association, have argued in favor of an ICC. See Douglas W. Cassel, Jr., A New International Criminal Court: Will It Be Independent?, CHI. DAILY L. BULL., 9 Mar. 1998, at 6; World Criminal Court: All Gum, No Teeth?, ECONOMIST (London), 14 Mar. 1998, at 50. Many of these NGOs have banded together to form the Coalition for an International Criminal Court. See The CICC International Criminal Court Home Page (visited 10 Feb. 2000) 〈http://www.igc.org/icc〉.
72. See Wexler, supra note 43, at 666 n.6. Samantha Power points out, however, that "while national governments usually choose to forego retributive justice [in favor of truth commissions], outsiders (including the United States) are formally swearing by it." Samantha Power, The Stages of Justice, NEW REPUBLIC, 2 Mar. 1998, at 38, 39 (reviewing MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW (1998)).
73. See Wexler, supra note 43, at 666 n.6. Samantha Power points out, however, that "while national governments usually choose to forego retributive justice [in favor of truth commissions], outsiders (including the United States) are formally swearing by it." Samantha Power, The Stages of Justice, NEW REPUBLIC, 2 Mar. 1998, at 38, 39 (reviewing MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW (1998)).
74. According to Morris and Scharf: "If the International Tribunal demonstrates that such an institution can function effectively and efficiently, then the case for establishing a permanent court will be strengthened beyond measure." MORRIS & SCHARF, supra note 17, at 354. See also Danesh Sarooshi, The Powers of the United Nations International Criminal Tribunals, 2 MAX PLANCK Y.B. U.N. L. 141, 167 (1998). Jelena Rejic argues, however, that "the emerging profile of an ICC is so different from that of the ad hoc Tribunal that the very notion of the latter's success as being critical to the former may be called into question." Jelena Pejic, The Tribunal and the ICC: Do Precedents Matter?, 60 ALB. L. REV. 841 (1997).
75. According to Morris and Scharf: "If the International Tribunal demonstrates that such an institution can function effectively and efficiently, then the case for establishing a permanent court will be strengthened beyond measure." MORRIS & SCHARF, supra note 17, at 354. See also Danesh Sarooshi, The Powers of the United Nations International Criminal Tribunals, 2 MAX PLANCK Y.B. U.N. L. 141, 167 (1998). Jelena Rejic argues, however, that "the emerging profile of an ICC is so different from that of the ad hoc Tribunal that the very notion of the latter's success as being critical to the former may be called into question." Jelena Pejic, The Tribunal and the ICC: Do Precedents Matter?, 60 ALB. L. REV. 841 (1997).
76. See MORRIS & SCHARF, supra note 17, at 175. According to James Crawford, however, "[r]ather stringent standards have been laid down in international human rights treaties, regulating due process in criminal trials." James Crawford, The ILC Adopts a Statute for an International Criminal Court, 89 AM. J. INT'L L. 404, 407 (1995). See generally Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, the Hague, and Arusha, 37 COLUM. J. TRANSNAT'L L. 725 (1999).
77. See MORRIS & SCHARF, supra note 17, at 175. According to James Crawford, however, "[r]ather stringent standards have been laid down in international human rights treaties, regulating due process in criminal trials." James Crawford, The ILC Adopts a Statute for an International Criminal Court, 89 AM. J. INT'L L. 404, 407 (1995). See generally Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, the Hague, and Arusha, 37 COLUM. J. TRANSNAT'L L. 725 (1999).
78. ICTY Statute, supra note 11, art. 15.
79. Barbara Crossette, World Criminal Court Having Painful Birth, N.Y. TIMES, 13 Aug. 1997, at A10 (quoting Judge McDonald).
80. This is true not simply for precedential reasons but also because many of the players that created the ad hoc tribunals are also behind the creation of the ICC. See Peter Burns, An International Criminal Tribunal: The Difficult Union of Principle and Politics, 5 CRIM. L.F. 341, 350-51 (1994). For one of the few scholarly investigations of a procedural aspect of the ICTY, see Mark Thieroff & Edward A. Amley, Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 YALE J. INT'L L. 231 (1998).
81. This is true not simply for precedential reasons but also because many of the players that created the ad hoc tribunals are also behind the creation of the ICC. See Peter Burns, An International Criminal Tribunal: The Difficult Union of Principle and Politics, 5 CRIM. L.F. 341, 350-51 (1994). For one of the few scholarly investigations of a procedural aspect of the ICTY, see Mark Thieroff & Edward A. Amley, Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 YALE J. INT'L L. 231 (1998).
82. Judge McDonald suspended the subpoena on 19 Feb. 1997 in order to allow the parties to resolve the matter informally. That having failed. Judge McDonald ordered that the matter be heard by the full Trial Chamber. See Blaškić I, supra note 5, ¶¶ 2-12 (recounting the procedural history leading up to the Trial Chamber's decision). See In the International Criminal Tribunal for the Former Yugoslavia in the Trial Chamber (visited 16 Feb. 2000) 〈http://www.un.org/icty/transe14/970416IT.txt〉 (providing an unpaginated transcript of the oral arguments) [hereinafter Oral Argument].
83. U.N. CHARTER art. 29.
84. Blaškić I, supra note 5, ¶ 20 (quoting THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 486 (Bruno Simma ed., 1994) (commentary by Meinhard Hilf)).
85. Article 41 of the UN Charter states: "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. . . ." U.N. CHARTER art. 41. See also Danesh Sarooshi, The Legal Framework Governing United Nations Subsidiary Organs, 64 BRIT. Y.B. INT'L L. 422 (1996) (delineating the authority of the principal organs of the United Nations to create subsidiary organs).
86. See Blaškić I, supra note 5, ¶ ¶ 17, 23.
87. See Prosecutor's Brief in Support of Subpoenae Duces Tecum, Prosecutor v. Blaškić, Case No. IT-95-14-PT, T. Ch. II (ICTY 1 Apr. 1997) (RP D3620-3671) (setting out a theory of inherent and express powers). Paragraph 3 of the Amicus Curiae Brief states: The Statute does not expressly confer upon the Tribunal the capacity to address subpoenas orders; however, the Tribunal must be deemed under International Law to have those powers which, though not expressly provided in the Statute, are conferred upon it by necessary implication as being essential to the performance of its duties. Amicus Curiae Brief Presented by Professor Juan-Antonio Carrillo Salcedo, Prosecutor v. Blaškić, Case No. IT-95-14-PT, T. Ch. II, at 4 (ICTY 5 Apr. 1997) (RP D4660-72).
88. Blaškić I, supra note 5, ¶ 24.
89. Id.
90. The court relied on language in the following decisions of the International Court of Justice: Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 171, 182 ("Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties."); Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954 I.C.J. 47, 57 ("Capacity to do this arises by necessary intendment out of the Charter."); Certain Expenses of the United Nations, 1962 I.C.J. 151, 168 ("But when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.").
91. The Blaškić I decision notes that Article 20 of the statute directs the Trial Chamber to ensure that a trial is fair and expeditious . . . [and that] Article 21, paragraph 4(e) provides that the accused shall be entitled "to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." Blaškić I, supra note 5, ¶ 32.
92. ICTY Statute, supra note 11, art. 9, ¶ 2. Paragraph 35 of the Blaškić I decision notes "its capacity to obtain all the necessary documents for the adjudication of a case cannot be less than that of [national] courts." Blaškić I, supra note 5, ¶ 35.
93. Here, she follows the line of argument put forward by the Prosecutor in oral argument: In my submission, if nothing else, it [the subpoena power] would have to form part of the inherent powers of a criminal court. There would be no doubt that a mechanism would have to be designed by the court itself to allow it to get access to the evidence that is necessary for a fair disposition of the case. Oral Argument, supra note 51.
94. Blaškić I, supra note 5, ¶¶ 36-40.
95. Id ¶ 42.
96. See ICTY Statute, supra note 11, art. 18, ¶ 2.
97. Id. art. 19, ¶ 2.
98. ICTY R. Proc. & Evid. 54. The ICTY Rules of Procedure and Evidence, as amended, are available on the Internet at 〈http://www.un.org/icty/basic/rpe/IT32_rev17con.htm〉 (visited 16 Feb. 2000).
99. Blaškić I, supra note 5, ¶¶ 50-51.
100. Article 49 States: "The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal." Statute of the International Court of Justice, art. 49, annexed to U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945). Article 62(1) of the Rules of the International Court of Justice states: "The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose." I.C.J. Rules of Court, adopted 14 Apr. 1978, art. 62(1), available at 〈http://www.icj-cij.org/ icjwww/ibasicdocuments/ibasictext/ibasicrulesofcourt.html〉 (visited 16 Feb. 2000).
101. Blaškić I, supra note 5, ¶ 53. It is unclear whether the Trial Chamber's assertion is in fact true. Article 49 of the ICJ statute simply states that the court may take "formal note" of "any refusal" to comply with the court's request. There is no indication, either in the Statute or in the court's practice, that suggests that "formal note" is equivalent to "negative inference." Cf. W. MICHAEL REISMAN, NULLITY AND REVISION: THE REVIEW AND ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS 593-603 (1971) (discussing the Rule in Parker's Case).
102. Blaškić I, supra note 5, ¶ 54.
103. Id. ¶ 56. Even if Judge McDonald's assertions were true, what good is a negative inference in a criminal tribunal where the subpoenaed party itself is not on trial?
104. Id. ¶ 61 (citing ICTY Statute, supra note 11, art. 29). Paragraph 62 states, "The Trial Chamber considers that use of a subpoena does not necessarily imply the assertion of a power to imprison or fine, as it may in a national context" and suggests a range of "penalties" from "a note of non-compliance and reference of the matter to the Security Council . . . to consideration of utilizing the inherent contempt power or that provided for in Rule 77 against individuals who fail to comply." Id. ¶ 62.
105. See Blaškić I, supra note 5, ¶¶ 99-105 (reviewing limits that national courts place on the subpoena power).
106. See id. ¶¶ 116-122 (discussing the Corfu Channel Case, the Godínez Cruz Case, and The Observer and the Guardian v. The United Kingdom, and finding them unhelpful).
107. See id. ¶¶ 124-26 (discussing the United States, Canada, Pakistan, Costa Rica, Germany, and the United Kingdom).
108. The International Court of Justice, in the Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, requested certain documents that were not produced, the Agent pleading naval secrecy; and the United Kingdom witnesses declined to answer questions relating to them. It is not therefore possible to know the real content of these naval orders. The Court cannot, however, draw from this refusal to produce the orders any conclusions differing from those to which the actual events gave rise. Id. at 32.
109. See Blaškić I, supra note 5, ¶¶ 127-29.
110. Id. ¶ 131.
111. Id. ¶ 133.
112. That decision was not arbitrary however. When evaluating a national security claim, the trial court judge must consider two interests: "the interest in upholding the national security interest of a State and the interest in gaining access to the evidence critical to the prosecution or defence in cases relating to serious violations of international humanitarian law." Id. ¶ 149.
113. The Appeals Chamber accepted review of the appeal on 29 July 1997, 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, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, App. Ch. (ICTY 29 July 1997), and refused to set aside this decision on August 12. Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, App. Ch. (ICTY 12 Aug. 1997). Briefs were submitted in late Aug. and early Sept., and oral arguments were heard on 22 Sept. A transcript of the oral arguments is available at 〈http://www.un.org/icty/transe14/ 970922IT.txt〉 (visited 16 Feb. 2000).
114. Blaškić II, supra note 6, ¶ 23.
115. Id. ¶ 21.
116. Id. ¶ 25.
117. The Appeals Chamber differentiated between "inherent" and "implied" powers. The ICJ, the court found, used the implied powers doctrine "with a view to expanding the competencies of political organs of international organizations." Id. ¶ 25 n.27 (emphasis in original (citing, inter alia, cases cited supra note 59). The concept of inherent powers was used to insure that "the exercise of [the ICJ's] jurisdiction over the merits, if and when established, shall not be frustrated, and . . . to provide for the orderly settlement of all matters in dispute." Id. (quoting Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 259-60, ¶ 23).
118. Id. ¶ 25; ICTY Statute, supra note 11, art. 29; S.C. Res. 827, U.N. SCOR, 3217th mtg., ¶ 4, U.N. Doc. S/RES/827 (1993).
119. Blaškić II, supra note 6, ¶ 26. The court specified the content of the binding orders as follows: (1) "identify specific documents"; (2) "set out succinctly the reasons why such documents are deemed relevant to the trial"; (3) "not be unduly onerous"; (4) "give the requested State sufficient time for compliance[.]" Id. ¶ 32.
120. Id. ¶ 33. See also id. ¶¶ 35-36 (setting out rules for judicial findings).
121. Id. ¶ 33.
122. Id. ¶¶ 38-45 (state officials), 46-60 (individuals in their private capacity). Upholding the Trial Chamber, the Appeals Chamber recognized that certain requested documents may be covered by a national security privilege, but the court (and not the state) was to decide whether the privilege applied. See id. ¶¶ 62-66 (discussing the Sabotage, Ballo, Godinez Cruz cases and Cyprus v. Turkey, as well as Article 2, paragraph 7, of the United Nations Charter). When deciding whether an assertion of national security is applicable, the court held that the Trial Chamber: (1) should take into account "whether the State concerned has acted and is acting bona fide[;]" (2) should have only one judge look at the relevant documents; (3) should have the state submit certified translations, if necessary; (4) should look at the documents in camera and ex parte; (5) should return the irrelevant or privileged documents to the state; and (6) should allow for certain extremely sensitive documents not to be submitted for scrutiny. Id. ¶ 68. Judge Adolphus G. Karibi-Whyte wrote a separate opinion that took issue with items two and three of the court's national security procedures. See Separate Opinion of Judge Adolphus G. Karibi-Whyte, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, App. Ch., ¶ 4 (ICTY 29 Oct. 1997), available at 〈http://www.un.org/ icty/blaskic/appeal/decision-e/71029JTK.html〉 (visited 16 Feb. 2000).
123. After the decision was handed down, the Office of the Prosecutor made the unconvincing claim that the Appeals Chamber had decided in its favor. Prosecutor Arbour described the Appeals Chamber decision as "a vindication of the prosecution's position," and promised to "seek a binding order for the production of [Croatian] documents." Croatia Wins Appeal Against UN Court Subpoena, ANP English News Bulletin, 30 Oct. 1997, available in Lexis, NEWS Library, ANPENG File. The decision, however, was far from what the prosecution had originally desired. The Office of the Prosecutor has since issued an "order" to Croatia in accordance with the Appeals Chamber ruling. See Order to the Republic of Croatia for the Production of Documents, Prosecutor v. Blaskic, Case No. ICTY-95-14-T, T. Ch. I (ICTY 21 July 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/80721PN16152.htm〉 (visited 16 Feb. 2000). Croatia challenged the binding order on national security grounds. See Decision on the Notice of State Request for Review of Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents and Request for Stay of Trial Chamber's Order of 30 January 1998, Prosecutor v. Blaškić, Case No. IT-95-14-T, App. Ch. (ICTY 26 Feb. 1998), available at 〈http://www.un.org/icty/blaskic/appeal/decision-e/80226SD3.htm〉 (visited 16 Feb. 2000); Order for a Witness to Appear, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch. I (ICTY 5 Nov. 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/ 81105WG16153.htm〉 (visited 16 Feb. 2000). Judge McDonald, in her capacity as president of the ICTY, has reported Croatia to the Security Council for noncompliance with Tribunal requests, though not the requests at issue in Blaškić. See War Crime Tribunal Reports Croatia to Security Council for "Non-Cooperation," AGENCE FRANCE PRESSE, 25 Aug. 1999, available in Lexis, NEWS Library, CURNWS File. Immediately after Blaškić was found guilty in March 2000, see supra note 6, Croatia said that it would release newly discovered documents that had been withheld by the regime of the late president of Croatia, Franjo Tudjman. The documents, Croatian officials asserted, will assist Blaškić in his appeal of the guilty verdict. See Croatia to Release Documents to Defend Bosnian Croat War Criminal, AGENCE FRANCE PRESSE, 6 Mar. 2000, available in Lexis, NEWS Library, CURNWS File.
124. After the decision was handed down, the Office of the Prosecutor made the unconvincing claim that the Appeals Chamber had decided in its favor. Prosecutor Arbour described the Appeals Chamber decision as "a vindication of the prosecution's position," and promised to "seek a binding order for the production of [Croatian] documents." Croatia Wins Appeal Against UN Court Subpoena, ANP English News Bulletin, 30 Oct. 1997, available in Lexis, NEWS Library, ANPENG File. The decision, however, was far from what the prosecution had originally desired. The Office of the Prosecutor has since issued an "order" to Croatia in accordance with the Appeals Chamber ruling. See Order to the Republic of Croatia for the Production of Documents, Prosecutor v. Blaskic, Case No. ICTY-95-14-T, T. Ch. I (ICTY 21 July 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/80721PN16152.htm〉 (visited 16 Feb. 2000). Croatia challenged the binding order on national security grounds. See Decision on the Notice of State Request for Review of Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents and Request for Stay of Trial Chamber's Order of 30 January 1998, Prosecutor v. Blaškić, Case No. IT-95-14-T, App. Ch. (ICTY 26 Feb. 1998), available at 〈http://www.un.org/icty/blaskic/appeal/decision-e/80226SD3.htm〉 (visited 16 Feb. 2000); Order for a Witness to Appear, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch. I (ICTY 5 Nov. 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/ 81105WG16153.htm〉 (visited 16 Feb. 2000). Judge McDonald, in her capacity as president of the ICTY, has reported Croatia to the Security Council for noncompliance with Tribunal requests, though not the requests at issue in Blaškić. See War Crime Tribunal Reports Croatia to Security Council for "Non-Cooperation," AGENCE FRANCE PRESSE, 25 Aug. 1999, available in Lexis, NEWS Library, CURNWS File. Immediately after Blaškić was found guilty in March 2000, see supra note 6, Croatia said that it would release newly discovered documents that had been withheld by the regime of the late president of Croatia, Franjo Tudjman. The documents, Croatian officials asserted, will assist Blaškić in his appeal of the guilty verdict. See Croatia to Release Documents to Defend Bosnian Croat War Criminal, AGENCE FRANCE PRESSE, 6 Mar. 2000, available in Lexis, NEWS Library, CURNWS File.
125. After the decision was handed down, the Office of the Prosecutor made the unconvincing claim that the Appeals Chamber had decided in its favor. Prosecutor Arbour described the Appeals Chamber decision as "a vindication of the prosecution's position," and promised to "seek a binding order for the production of [Croatian] documents." Croatia Wins Appeal Against UN Court Subpoena, ANP English News Bulletin, 30 Oct. 1997, available in Lexis, NEWS Library, ANPENG File. The decision, however, was far from what the prosecution had originally desired. The Office of the Prosecutor has since issued an "order" to Croatia in accordance with the Appeals Chamber ruling. See Order to the Republic of Croatia for the Production of Documents, Prosecutor v. Blaskic, Case No. ICTY-95-14-T, T. Ch. I (ICTY 21 July 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/80721PN16152.htm〉 (visited 16 Feb. 2000). Croatia challenged the binding order on national security grounds. See Decision on the Notice of State Request for Review of Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents and Request for Stay of Trial Chamber's Order of 30 January 1998, Prosecutor v. Blaškić, Case No. IT-95-14-T, App. Ch. (ICTY 26 Feb. 1998), available at 〈http://www.un.org/icty/blaskic/appeal/decision-e/80226SD3.htm〉 (visited 16 Feb. 2000); Order for a Witness to Appear, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch. I (ICTY 5 Nov. 1998), available at 〈http://www.un.org/icty/blaskic/trialc1/order-e/ 81105WG16153.htm〉 (visited 16 Feb. 2000). Judge McDonald, in her capacity as president of the ICTY, has reported Croatia to the Security Council for noncompliance with Tribunal requests, though not the requests at issue in Blaškić. See War Crime Tribunal Reports Croatia to Security Council for "Non-Cooperation," AGENCE FRANCE PRESSE, 25 Aug. 1999, available in Lexis, NEWS Library, CURNWS File. Immediately after Blaškić was found guilty in March 2000, see supra note 6, Croatia said that it would release newly discovered documents that had been withheld by the regime of the late president of Croatia, Franjo Tudjman. The documents, Croatian officials asserted, will assist Blaškić in his appeal of the guilty verdict. See Croatia to Release Documents to Defend Bosnian Croat War Criminal, AGENCE FRANCE PRESSE, 6 Mar. 2000, available in Lexis, NEWS Library, CURNWS File.
126. The court explicitly rebutted the prosecutor's and Trial Chamber's resort to the "domestic analogy" for their justification of the power to subpoena state officials; "The setting is totally different in the international community," the court noted. Blaškić II, supra note 6, ¶ 40. The international community was without a "central government with the attendant separation of powers and checks and balances. . . . [I]nternational courts, including the International Tribunal, do not make up a judicial branch of a central government." Id. The court continued: "The International Tribunal is an international criminal court constituting a novelty in the world community." Id. ¶ 47.
127. While I have summarized the opinions of the Trial and Appeals Chambers, I have generally refrained from quibbling with their textual readings and factual assertions. It is enough to say that alternative readings and interpretations are possible, if not likely. I have foregone this type of critique primarily because I feel that it is beside the point; as I make clear in the body of this article, other considerations were more important to the outcome of Blaškić.
128. While the court has often relied on the ICTY Statute and Chapter VII of the UN Charter in its rulings, it is unclear why the Trial Chamber felt it necessary to make the extensive claim that it did in Blaškić.
129. General Framework Agreement, supra note 10, at 90.
130. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
131. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
132. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
133. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
134. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
135. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., ¶ 310, U.N. Doc. A/51/22/1996/64 (1996) [hereinafter Preparatory Committee Report]; Report of the International Law Commission on the Work of Its Forty-Sixth Session 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 129-30, U.N. Doc. A/49/10 (1994); Rolling Text of Articles 51 and 52, Prep. Comm. on the Establishment of an Int'l Crim. Ct., Working Group on Int'l Co-operation and Judicial Assistance, U.N. Doc. A/AC.249/1997/WG.5/CRP.2* (1997), available at 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/undocs/prepcom5/art5152. txt〉; Report of the Intersessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, art. 78, ¶ 6 (visited 9 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/O./orgs/ icc/undocs/zutphen/part9.txt〉; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., arts. 54(4)(b), 85, 86(6), 90(2), U.N. Doc. A/ CONF.183/2/Add.1, (1998).
136. See, e.g., American Bar Association, Resolution and Report Recommending the Establishment of an International Criminal Court (2 Feb. 1998) (visited 16 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/ngodocs/abareport.298〉 (citing Blaškić). According to Amnesty International: Although the Appeals Chamber in Blaškić decided that it had no power under Article 29 of the Statute . . . to issue subpoenas to state officials to testify or to produce documents, nothing prevents states from collectively drafting a statute with a more effective procedure. Indeed, unless the court has the power to compel subordinates in a chain of command it may well be impossible to prosecute superiors for responsibility. Amnesty International, The International Criminal Court: Making the Right Choices-Part III: Ensuring Effective State Cooperation, AI Index: IOR 40/13/97, Nov. 1997, at 53, available at 〈http://www.amnesty.it/ailib/aipub/1997/IOR/14001397.htm〉 (visited 16 Feb. 2000). See also Commentary for the March-April Preparatory Committee Meeting, HUM. RTS. WATCH, Feb. 1998, at § E, available at 〈http://www.hrw.org/hrw/campaigns/ icc/icc0398.htm〉 (visited 16 Feb. 2000) ("Human Rights Watch strongly urges delegates to follow the guidance of the Trial Chamber . . . in the case of the Prosecutor v. Tihomir Blaškić. . . ."). According to the Lawyers Committee on Human Rights: "The recent controversies surrounding the power of [ICTY] to order the testimony and the production of documentary evidence by states and state officials highlighted a fundamental problem in the exercise of international criminal jurisdiction." Lawyers Committee on Human Rights, Compliance with ICC Decisions (International Criminal Court Briefing Series, Vol. 1, No. 5, Nov. 1997) (visited 16 Feb. 2000) 〈http://www.lchr .org/icc/iccpap5.htm〉.
137. See, e.g., American Bar Association, Resolution and Report Recommending the Establishment of an International Criminal Court (2 Feb. 1998) (visited 16 Feb. 2000) 〈gopher://gopher.igc.apc.org:70/00/orgs/icc/ngodocs/abareport.298〉 (citing Blaškić). According to Amnesty International: Although the Appeals Chamber in Blaškić decided that it had no power under Article 29 of the Statute . . . to issue subpoenas to state officials to testify or to produce documents, nothing prevents states from collectively drafting a statute with a more effective procedure. Indeed, unless the court has the power to compel subordinates in a chain of command it may well be impossible to prosecute superiors for responsibility. Amnesty International, The International Criminal Court: Making the Right Choices-Part III: Ensuring Effective State Cooperation, AI Index: IOR 40/13/97, Nov. 1997, at 53, available at 〈http://www.amnesty.it/ailib/aipub/1997/IOR/14001397.htm〉 (visited 16 Feb. 2000). See also Commentary for the March-April Preparatory Committee Meeting, HUM. RTS. WATCH, Feb. 1998, at § E, available at 〈http://www.hrw.org/hrw/campaigns/ icc/icc0398.htm〉 (visited 16 Feb. 2000) ("Human Rights Watch strongly urges delegates to follow the guidance of the Trial Chamber . . . in the case of the Prosecutor v. Tihomir Blaškić. . . ."). According to the Lawyers Committee on Human Rights: "The recent controversies surrounding the power of [ICTY] to order the testimony and the production of documentary evidence by states and state officials highlighted a fundamental problem in the exercise of international criminal jurisdiction." Lawyers Committee on Human Rights, Compliance with ICC Decisions (International Criminal Court Briefing Series, Vol. 1, No. 5, Nov. 1997) (visited 16 Feb. 2000) 〈http://www.lchr .org/icc/iccpap5.htm〉.
138. Rome Statute, supra note 7, art. 93(1)(i) (emphasis added). Article 57(3)(a) gives the Pre-Trial Chamber, at the request of the prosecutor, the power to "issue such orders and warrants as may be required for the purposes of an investigation." Id. art. 57(3)(a).
139. Id. art. 93(3).
140. Id. (emphasis added). This exception seems to deal with the transfer of indicted persons or witnesses and not documents.
141. Id. art. 93(4).
142. Id. art. 87(7).
143. While the Security Council, by virtue of its Chapter VII powers, has the authority to use force, it is unclear what coercive powers the Assembly of States Parties might legitimately use to ensure compliance with a court's order.
144. Reservations are prohibited. See Id. art. 120.
145. See Christopher L. Blakesley, Report of the International Law Association, 25 DENV. J. INT'L L. & POL'Y 233, 234 (1997).
146. Id.
147. Power, supra note 45 (quoting Blewitt).
148. See, e.g., Amicus Curiae Brief Submitted by the Max Planck Institute for Foreign and International Criminal Law, Freiburg im Breisgau, Germany, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, App. Ch., ¶¶ 49-50 (ICTY 15 Sept. 1997) (comparing the approach of national courts to the production of evidence and the limits on such powers and concluding that international courts should operate in substantially similar ways).