Compulsion of Information from States and Due Process in Cases before the International Criminal Tribunal for the Former Yugoslavia

Abstract

The procurement of information in the sole possession of states is pivotal to the fair and expeditious conduct of trials before the ICTY. At the same time, states possessing sought-after information may have certain legitimate interests they wish to protect in relation to such material, for example national security interests. Taking into account the uniqueness of the ICTY as an institution created by the Security Council under Chapter VII of the UN Charter, this article analyses situations where tensions have arisen, or may potentially arise, between state interests and the presentation of evidence crucial to the guilt or innocence of the accused. After setting out the continuously developing law of the ICTY that has striven to reconcile these competing demands, the authors propose alterations to the Rules of Procedure and Evidence, in the form of amendments to Rule 54 bis and a new rule, Rule 54 ter.