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Obtaining Evidence for the International Criminal Tribunal for the Former Yugoslavia: An Overview and Assessment of Domestic Implementing Legislation

Published online by Cambridge University Press:  21 May 2009

Göran Sluiter
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Extract

Legal assistance to the two Ad Hoc Tribunals1 is a prerequisite for their effective achievement. The obligation to provide the Tribunals with legal assistance has been outlined in the Security Council Resolutions establishing the Tribunals, the Statutes of the Tribunals, and their Rules of Procedure and Evidence.

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Articles
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Netherlands International Law Review , Volume 45 , Issue 1 , May 1998 , pp. 87 - 113
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Copyright © T.M.C. Asser Press 1998

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References

1. I refer to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, as established by SC Res. 808, 827, and 955.

2. Prosecutor v. Tihomir Blaskic, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Case No. IT-95–14-PT, 18 July 1997.

3. Prosecutor v. Tihomir Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14-AR108bis, 29 October 1997.

4. Prosecutor v. Delalic, Mucic, Delic, and Landzo, Decision on Zdravko Mucic's Motion for the Exclusion of Evidence, Case No. IT-96–21-T, 2 September 1997.

5. See Rule 42 of the Rules of Procedure and Evidence of the Yugoslavia Tribunal (adopted on 11 February 1994, revised 20 October and 12 November 1997), IT/32/rev. 12.

6. At present, twenty states have adopted implementing legislation; see Third Annual Report ICTY 1996, para. 183.

7. SC Res. 827 (1993), adopted by the Security Council at its 3217th meeting, on 25 May 1993.

8. Ibid.

9. SC Res. 955 (1994), adopted by the Security Council at its 3453rd meeting on 8 November 1994; see para. 2 of that Resolution.

10. Established by the Secretary-General of the United Nations; Report of the Secretary-General pursuant to para. 2 of SC Res. 808 (1993) (presented 3 May 1993), S/25704.

11. Art. 28 of the Statute of the Rwanda Tribunal contains identical language; see SC Res. 955 (1994).

12. Art. 17(2) of the Statute of the Rwanda Tribunal contains identical language.

13. The Rwanda Tribunal has adopted the Rules of the Yugoslavia Tribunal; see Art. 14 of the Statute of the Rwanda Tribunal. When reference is made to the Rules, this concerns the Rules of Procedure and Evidence of both Ad Hoc Tribunals.

14. Rule 40.

15. Para. 126 of the Report of the Secretary-General, supra n. 10.

16. Cf., Art. 25 of the UN Charter. See also Pellet, A., ‘Le Tribunal Criminel International pourl'Ex-Yougoslavie – Poudre aux Yeux ou Avancée Décisive?’, 98 RGD1P (1994) p. 7 at p. 56.Google Scholar

17. For a negative answer see Weckel, Ph., ‘L'Institution d'un Tribunal International pour la Répression des Crimes de Droit Humanitaire en Yougoslavie’, 39 AFDI (1993) p. 232 at p. 257.CrossRefGoogle Scholar

18. Blaskic decision, Trial Chamber, para. 98, supra n. 2.

19. Blaskic decision, Trial Chamber, para. 102, supra n. 2; view upheld by the Appeals Chamber, para. 32, supra n. 3, which, in addition, attached specific conditions to a request or an order for production of documents issued under Art. 29(2).

20. Art. 18(2) of the Statute of the Yugoslavia Tribunal.

21. Croatia asserted, for example, that the power to issue a subpoena duces tecum is a feature limited to common law legal systems; see Brief of Croatia in opposition to subpoena duces tecum, 8 May 1997, p. 2; several paragraphs of the Blaskic decision are needed to provide clarity in this matter; see paras. 60–64 of the Blaskic decision, Trial Chamber, supra n. 2.

22. Sent by the President of the Yugoslavia Tribunal to Members of the United Nations on 15 February 1995; in International Criminal Tribunals: Handbook for Government Cooperation, Amnesty International, August 1996, AI Index: IOR 40/08/96, Supplement One. The Registrar of the Rwanda Tribunal is said to prepare similar Guidelines for the cooperation with the Rwanda Tribunal, Idem., p. 41.

23. Art. 9(1) of the Tentative Guidelines.

24. Art. 9(3) of the Tentative Guidelines.

25. It has to be borne in mind, however, that nine states – Denmark, Finland, France, Iceland, Italy, Netherlands, Norway, Spain and Sweden – could not take the Guidelines into account when drafting their legislation, since the Guidelines had been published after their legislation had already entered into force.

26. See Para. 5 of SC Res. 827 (1993), adopted by the Security Council at its 3217th meeting, on 25 May 1993, which reads in part as follows: ‘that … all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute …’ See also on the need for implementing legislation O'Shea, S., ‘Interaction Between International Criminal Tribunals and National Legal Systems’, 28 New York University Journal of International Law and Politics (1995–1996) p. 367 at 375.Google Scholar

27. Blaskic decision, Appeals Chamber, para. 41, supra n. 3.

28. Republic of Korea, Russian Federation, Singapore, and Venezuela; Third Annual Report ICTY 1996, para. 184.

29. The principle that provision of internal law may not be invoked as a justification for failure to comply with international obligations is firmly established in Art. 27 of the Vienna Convention of 1969 on the Law of Treaties. Thus, the Trial Chamber held in the Blaskic subpoena decision that ‘the assertion that compliance with an order of the International Tribunal would violate internal law has no validity’, para. 84, supra n. 2. Moreover, the Appeals Chamber held that ‘a well-known principle of international law can be relied upon to prevent States from shielding behind their national law in order to evade international obligations’, para. 54, supra n. 3.

30. The following states have adopted legislation regulating the cooperation with one or both Ad Hoc Tribunals: Australia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Denmark, Finland, France, Germany, Hungary, Iceland, Italy, Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, the United Kingdom, and the United States.

It is to be believed that the following states will prepare legislation in the near future: Albania, Bulgaria, Canada, Czech Republic, Luxembourg, the Former Yugoslav Republic of Macedonia, Poland, Romania, Slovak Republic, Slovenia, Sri Lanka, Tanzania, Turkey, and Uganda; International Criminal Tribunals: Handbook for Government Cooperation, Amnesty International, August 1996, AI Index: IOR 40/10/96, p. 41.

31. Cf., 5th para, of the Statement of Reasons preceding the Organization Act 15/1994 of 1 June on Cooperation with the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Spanish implementing law).

32. Cf., section 84 of the International War Crimes Tribunals Act 1995, No. 18 of 1995, assented to 29 March 1995 (Australian implementing law); and section 56 of the International War Crimes Tribunals Act 1995, No. 27 (New Zealand implementing law).

33. Agreement on Surrender of Persons between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia, 5 October 1994; on 24 January 1995 a similar agreement was concluded with the Rwanda Tribunal (both agreements are hereinafter: US Surrender Agreements); for an overview of this form of assistance by the United States see Kushen, R. and Harris, K. J., ‘Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda’, 90 AJIL (1996) pp. 510–518.CrossRefGoogle Scholar

34. A few examples are Art. 2 Decree with Force of Law on Deferral upon Request by the International Tribunal (Bosnian implementing law); Art. 2(3) Act on Criminal Proceedings before the International Tribunal for the Prosecution of Persons Responsible for War Crimes Committed in the Territory of Former Yugoslavia, Act No. 1099 of 21 December 1994 (extended to apply to the Rwanda Tribunal by order of the Minister of Justice pursuant to Art. 5 of this act) (Danish implementing law); section 5(2) Law Regulating the Cooperation with the International Tribunal for the Former Yugoslavia, published in the Gazette on 13 April 1995 (German implementing law); section (b) Judicial Assistance to the International Tribunal for Yugoslavia and to the International Tribunal for Rwanda, Pub. L. 104–106, Div. A, Title XIII, Sec. 1342, Feb. 10, 1996, 110 Stat. 486 (United States implementing law).

35. Art. 2(1) Act XXXIX of 1996 on the Fulfillment of Obligations Deriving from the Statute of the International Tribunal Established for Punishing the Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, May 1996 (Hungarian implementing law).

36. The commentary to the Swiss implementing law is revelatory in this respect:

‘Il faut révéler que la loi fédérale… sur l'entraide internationale en matière pénale (EIMP) a été conçue pour la coopération entre Etats et qu'elle ne s'applique dès lors pas telle quelle á la cooperation avec les tribunaux, laquelle pose, en partie, des problèmes differents. It est tout á fait possible de I'appliquer mutatis mutandis aux differentes catégories de coopération exigées par les Résolutions 827 et 955 et les Statuts respectifs …’, Message concernant l'arrete fédéral relatif à la coopération avec les tribunaux intemationaux chargés de poursuivre les violations graves du droit international humanitaire du 18 octobre 1995, No. 95.068, p. 6 (Swiss implementing law).

37. See Blaskic decision, Trial Chamber, para. 77, supra n. 2: ‘… the relationship between States and the International Tribunal is not one between equals.’ This view was affirmed by the Appeals Chamber: ‘a “vertical” relationship was thus established’, para. 47, supra n. 3.

Moreover, in the framework of the creation of a permanent international criminal court there is discussion as well as to whether the legal framework governing cooperation between states and the Court should be broadly similar to that existing between states on the basis of extradition and legal assistance agreements, or whether there should exist an entirely new regime which would not draw upon existing extradition and legal assistance conventions, since the system of cooperation between the Court and states can be regarded as fundamentally different. See Report of the Preparatory Committee on the Establishment of an International Criminal Court (Vol. I) (Proceedings of the Preparatory Committee during March-April and August 1996), Doc. A/51/22, para. 310. However, the ICC will not possess mandatory jurisdiction similar to the Ad Hoc Tribunals.

38. Only 12 states have adopted legislation regulating cooperation with both Ad Hoc Tribunals: Australia, Austria, Belgium, Denmark, France, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States. The other eight implementing laws only authorize cooperation with the Yugoslavia Tribunal.

39. Cf., Art. 5 Danish implementing law; section 15 Bill on Legal Aid to the International Tribunal for Trial of War Crimes in Former Yugoslavia, submitted to the Althing at its 117th legislative session, 1994, adopted without any changes by the Althing on 28 April 1994, as Law No. 49, 1994, and published in the Official Gazette on 9 May 1994 (Icelandic implementing law)

40. The French (draft) implementing law with regard to the Rwanda Tribunal contains some minor adjustments to the Yugoslavia Tribunal implementing law. See Arts. 3 and 4 Projet de loi portant adaptation de la législation française aux dispositions de la résolution 955 du Conseil de sécurité des Nations unies instituant un tribunal international en vue de juger les personnes présumées responsables d'actes de génocide ou d'autres violations graves du droit international humanitaire commis en 1994 sur le territoire du Rwanda et, s'agissant des citoyens rwandais, sur le territoire d'Etats voisins, 15 mai 1996.

41. Cf., Art. 8 Act No. 95–1 of 2 January 1995 Adapting French Legislation to the Provisions of United Nations Security Council Resolution 827 Establishing an International Criminal Tribunal to Prosecute Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (French implementing law), section 10 Icelandic implementing law, and Art. 22 Swiss implementing law.

42. Cf., Art. 11 of the Statute of the Yugoslavia Tribunal, and Art. 10 of the Statute of the Rwanda Tribunal.

43. For example, the request has to indicate the nature of the charges; cf., section 8(1) of the Australian implementing law.

44. For example, the Australian implementing law (section 8(3)) explicitly states that the omission of certain information in the legal assistance request does not invalidate a request; this could imply that the non-compliance with other formal requirements does indeed invalidate a request. However, the Austrian law provides, inter alia, that a request shall be accompanied by a statement of facts, but it does not mention the legal consequences if this is not the case (section 6(3)); see also Art. 7 of the Bosnian implementing law. With respect to surrender, under Art. 2 of the Surrender Agreements the United States has concluded with both Ad Hoc Tribunals a request for surrender needs to be supported by by information sufficient to establish ‘probable cause’; if, on the information supplied by the Ad Hoc Tribunals, this cannot be established, transfer may be denied by the United States on constitutional grounds; see also O'Shea, loc. cit. n. 26, at p. 381.

45. Cf., Art. 12 of the Loi relative á la reconnaissance du Tribunal International pour l'ex-Yougoslavie et du Tribunal international pour le Rwanda, et á la coopération avec ces Tribunaux, 22 Mars 1996 (Belgian implementing law); Art. 20 of the Constitutional Act on the Co-operation of the Republic of Croatia with the International Criminal Tribunal (Croatian implementing law); Art. 13 of the French implementing law; Art. 11(3) of the Provisions on Co-operation with the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Decree-Law No. 544 of 28 December 1993) (Italian implementing law); section 4(3) of the Provisions Relating to the Establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, amended bill, 9 April, 1994, ordered on 21 April 1994 to be placed in the Bulletin of Acts and Decrees (Dutch implementing law); Art. 10 of the Swiss implementing law; section 3 of the Icelandic implementing law.

46. Blaskic decision. Trial Chamber, para. 77, supra n. 2.

47. Art. 10(1)(b) of the Swiss implementing law; Art. 11(3)(c-bis) of the Italian implementing law.

48. Cf., Art. 3 of the Croatian implementing which makes compliance with a request dependent on the compatibility with the national constitution; Art. 9 of the Croatian constitution rules out the extradition of nationals.

49. Cf., Art. 11(3)(c-ter) of the Italian implementing law; section 57(b) of the New Zealand implementing law.

50. Art. 12(2) of the Federal Law on Cooperation with the International Tribunals (Austrian implementing law).

51. Cf., sections 26(3)(a), 33(2)(a) of the Australian implementing law, and section 57(a) of the New Zealand implementing law.

52. Blaskic decision, Trial Chamber, para. 133, supra n. 2.

53. Blaskic decision, Appeals Chamber, para. 64, supra n. 3.

54. Idem, para. 67.

55. Idem, see para. 68.

56. Blaskic decision, Trial Chamber, para. 149, supra n. 2; with respect to the methods or procedures safeguarding confidentiality, as suggested by the Appeals Chamber, it will be up to the Trial Chamber to decide whether to adopt any of them, see Blaskic decision, Appeals Chamber, para. 69, supra n. 3.

57. Or as the Appeals Chamber put it in the Blaskic decision:’… whenever such implementing legislation turns out to be in conflict with the spirit and the word of the Statute, a well known principle of international law can be relied upon to prevent States from shielding behind their national law in order to evade international obligations’, para. 54, supra n. 3.

58. Idem, para. 66.

59. Mucic decision, para. 43, supra n. 4.

60. According to the Prosecution Rule 42 did not contain the test for admissibility of evidence taken before persons other than investigators of the Prosecution; see ibid.

61. Cf., Nagel, K.-F., Beweisaufnahme im Ausland (Freiburg, Max-Planck-Institut 1988) p. 150–176Google Scholar; Lombois, C., Droit Pénal International (Paris, Dalloz 1979) p. 630.Google Scholar

62. See Nagel, op. cit. n. 61, at pp. 150 and 151; Lombois, op. cit. n. 61, at p. 630.

63. Cf., Art. 3(2) European Convention on Mutual Assistance in Criminal Matters (1959) (ECMACM).

64. Cf., Art. 27 of the Croatian implementing law; section 6 of the Act on the Jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia and on Legal Assistance to the International Tribunal, 5 January 1994, No. 12 (Finnish implementing law); section 4(4) of the German implementing law; Art. 2 of the Hungarian implementing law; Art. 10(1) of the Austrian implementing law; Art. 9 of the Belgian implementing law; section 8 Icelandic implementing law; Art. 10(4) of the Italian implementing law; sections 9(1) and 9(2) of the Dutch implementing law; section 3 of the Act No. 38 of 24 June 1994 Relating to the Incorporation into Norwegian Law of the UN Security Council Regulation on the Establishment of International Tribunals for Crimes Committed in the Former Yugoslavia and Rwanda (Norwegian implementing law); sections 9 and 10 of the Act Relating to the Establishment of an International Tribunal for Trial of Crimes Committed in Former Yugoslavia, SFS 1994:569, 13 June 1994 (Swedish implementing law); Art. 2 of the Swiss implementing law; section 16(1) of the The United Nations (International Tribunal) (Former Yugoslavia) Order 1996, No. 716 (British implementing law).

65. Cf., Art. 10(2) of the Austrian implementing law; section 6 Finnish implementing law; Art. 2(1) Hungarian implementing law; Art. 10(4) Italian implementing law; Art. 19(2) Swiss implementing law.

66. See Art. 3(2) ECMACM; Art. 6 UN Model Treaty on Mutual Assistance in Criminal Matters, A/RES/45/117, adopted at the 68th plenary meeting, 14 December 1990; see also on this matter Nagel, op. cit. n. 61, at p. 165.

67. Cf., Art. 10(2) of the Austrian implementing law; section 4(4) German implementing law; Art. 10(4) Italian implementing law.

68. Cf. Nagel, op. cit. n. 61, at p. 156.

69. Rule 90(E) recognizes the privilege against self–incrimination; Rule 97 protects the lawyer client privilege; finally, on the basis of Rule 77(B) the Trial Chamber may relieve the witness of the duty to answer, for reasons which it deems appropriate.

70. See the Entwurf eines Gesetzes über die Zusammenarbeit mit dem Internationalen Straf gerichtshof für das ehemalige Jugoslawien, Deutscher Bundestag-13. Wahlperiode, Drucksache 13/57, where it is stated that ‘eine Aussage nicht erzwungen werden darf, wenn dem Betrqffenen zwar gar nicht nach dem Statut des Gerichtshofes (Regel 90 VBO), wohl aber nach der StPO ein Aussagever weigerungsrecht (z. B. als Angehöriger oder Berufsgeheimnisträger) zusteht.’

71. Section 4(4) German implementing law; see also the commentary to this provision by the German government: ‘dass Zwangsmassnahmen … stets nur durch die deutschen Behörden angeordnet und durchgeführt werden dürfen und sich … hinsichtlich ihrer materiellen und prozeduralen Voraussetzungen nach deutschem Recht richten’, supra n. 70.

72. Cf., Art. 9 of the Belgian implementing law; Art. 8 French implementing law; section 9(2) of the Dutch implementing law declares applicable a section of domestic law which requires the involvement of an examining magistrate in case of a request for coercive measures.

73. The commentary to the German implementing law by the German government is sufficient proof of this. See supra nn. 70 and 71.

74. For an overview of the different attitudes of civil law and common law countries toward legal assistance see Heymann, Ph.B., ‘Two Models of National Attitudes Toward International Cooperation in Law Enforcement’, 31 Harvard International Law Journal (1990) pp. 99–107.Google Scholar

75. Markees, C., ‘The Difference in Concept Between Civil and Common Law Countries as to Judicial Assistance and Cooperation in Criminal Matters’, in Bassiouni, M. C. and Nanda, V. P., eds., Treatise on International Criminal Law, Vol. II Jurisdiction and Cooperation (Springfield, Thomas 1973) p. 171 at p. 172Google Scholar. See also Damaska, M. R., The Faces of Justice and State Authority: A comparative approach to the legal process (New Haven, Yale University 1986) p. 124.Google Scholar

76. Ibid.

77. Cf., section 28, para. 1782 US Code on Assistance to foreign and international tribunals and to litigants before such tribunals, which reads, in part, as follows:

‘(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure [emphasis added].’

78. Cf., sections 26, 27, 29, 30, and 31 of the Australian implementing laws; sections 21, 22, 24, 25 and 26 of the New Zealand implementing law.

79. Section (b) refers to section 1782 of title 28, which is applicable to both Ad Hoc Tribunals; see supra n. 78.

80. For example, the Australian implementing law, regarding the search of premises, sets out a detailed procedure, which deals, inter alia, with the following matters: when search warrants can be issued (section 47), the contents of the warrant (section 48), the things authorized by a search warrant in relation to premises (section 49); see also sections 48, 49, and 50 of the New Zealand implementing law, and sections 16 and 17 of the United Kingdom implementing law.

81. As an example, one can think of a situation where the ‘reasonable grounds’ standard applied in relation to the search of premises for evidence, has not been met according to national judicial authorities, whereas the Tribunal judge requesting for a search adopts the opposite view.

82. For example, the search of premises in the United States for the purpose of Tribunal investigations has to be in conformity with the Fourth Amendment, according to which ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

83. Mucic was not questioned by the Austrian authorities following a request issued by the Tribunal, but he was interrogated with a view to extradite or transfer.

84. Report of the Secretary-General, para. 106, supra n. 10.

85. European Court H.R., 7 July 1989, Ser. A, Vol. 161.

86. den Wyngaert, Ch. Van, ‘Rethinking the Law of International Criminal Cooperation: The Restrictive Function of International Human Rights Through Individual-Oriented Bars’, in Eser, A. and Lagodny, O., eds., Principles and Procedures for a New Transnational Criminal Law (Freiburg, Max-Planck-Institut 1992) p. 489 at p. 489.Google Scholar

87. In inter-state cooperation in criminal matters a difference has already been made between the ‘pre-Soering’ era and the ‘post-Soering’ era. Cf., Trechsel, S., ‘The Role of International Organs Controlling Human Rights in the Field of International Co-operation’, in Eser, A. and Lagodny, O., eds., Principles and Procedures for a New Transnational Criminal Law (Freiburg, Max-Planck-Institut 1992) p. 633 at p. 634.Google Scholar

88. Charles Chitat Ng v. Canada, Communication No. 469/1991, 5 November 1993, para. 14(2). Moreover, it is noteworthy that in a prior case, Kindler v. Canada, Communication No. 470/1991, 30 July 1993, the Committee already had had ‘careful regard to the judgment given by the European Court of Human Rights in the Soering v. United Kingdom case.’

89. Cf., section 23 of the Australian implementing law; Art. 16 of the Austrian implementing law; Art. 12 of the Belgian implementing law; Art. 14 of the Croatian implementing law; chapter II of title II of the French implementing law.

90. Cf., section 6 of the Icelandic implementing law; section 5 of the United Kingdom implementing law.

91. Cf., Art. 13 of the Belgian implementing law.

92. Prosecutor v. Dusko Tadic a/k/a ‘Dule’, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94–1-T, 10 August 1995, para. 26.

93. However, in the Mucic case, the Trial Chamber made use of the case law of the European Court of Human Rights to determine whether the right to counsel during interrogation can be considered an internationally protected human right; para. 50, supra n. 4. Thus, there is some improvement.

94. For example the United States; cf., 28 US Code para. 1782; only those acts not involving measures of constraints may be performed by the defence; cf., Markees, op. cit. n. 75, at p. 172.

95. Idem, at p. 173.

96. Morris, V. and Scharf, M. P., An lnsider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. I (New York, Transnational Publishers 1995) p. 240.Google Scholar

97. These steps included the possibility of testimony through videolink, and granting safe conduct to witnesses coming to The Hague; see Prosecutor v. Dusko Tadic a/k/a ‘Dule’, Opinion and Judgment, Case No. IT-94–1-T, 7 May 1997, paras. 530 and 531.

98. Cf., section (b) of the United States implementing law.

99. See for scope and object of this section Doyle, A. J., ‘Judicial Assistance: Obtaining Evidence in the United States under 28 U.S.C. 1782, for Use in a Foreign or International Tribunal’, 5 Boston College Int'l & Comp. L. Rev. (1982) pp. 175–193Google Scholar; Saraisky, S. M., ‘How to Construe section 1782: A Textual Prescription to Restore the Judge's Discretion’, 61 The University of Chicago Law Review (1994) pp. 127–151.Google Scholar

100. Section 29 of the Australian implementing law, and section 24 of the New Zealand implementing law.

101. Blaskic decision, Trial Chamber, para. 133, supra n. 2.

102. See para. 78 of the Annual Report of 1996 of the International Criminal Tribunal for the former Yugoslavia.

103. Lotus case, PCIJ, Ser. A, No. 10 (1927), 18; for a discussion of this basic rule and the Lotus case see Nagel, op.cit. n. 61, at p. 18; Brownlie, I., Principles of Public International LawM (Oxford, Clarendon Press 1990) p. 307Google Scholar; SirJennings, R. and SirWatts, A., eds., Oppenheim's International Law, Vol. I – Peace, 9th edn. (London, Longman 1992) p. 458.Google Scholar

104. See for an overview Gane, C. and Mackarel, M., ‘The Admissibility of Evidence Obtained from Abroad into Criminal Proceedings: The Interpretation of Mutual Legal Assistance Treaties and Use of Evidence Irregularly Obtained’, 2 European Journal of Crime, Criminal Law and Criminal Justice (1996) pp. 98–119.Google Scholar

105. Cf., United States v. Verdugo-Urquidez, 494 US 259, 108 L Ed 2d 222, 110 S Ct 1056, reh den 494 US 1092, 108 L Ed 2d 968, 110 S Ct 1839, where evidence obtained irregularly under international law and in violation of the Fourth Amendment to the US Constitution was nonetheless admitted; for a comment on this case see Wedgwood, R., 84 AJIL (1990) pp. 747–755.CrossRefGoogle Scholar

106. Section 7 of the Finnish implementing law, and section 9 of the Austrian implementing law; the latter, however, explicitly limits the investigatory powers of the Tribunal investigators to non–coercive measures.

107. Ibid.

108. Section 4(4) of the German implementing law; section 3 of the Norwegian implementing law (only the questioning of suspects, witnesses etc.); Art. 22 of the Swiss implementing law.

109. Cf., Art. 10 of the Belgian implementing law; Art. 25 of the Croatian implementing law; section 10 of the Icelandic implementing law; Art. 10(5) of the Italian implementing law; section 9(4) of the Netherlands implementing law.

110. For example, the European Commission of the European Communities has broad investigative powers in competition cases. Moreover, domestic provisions of criminal law may be indicative as far as powersof non-national investigators on domestic soil are concerned. Forexample, Art. 185(a) of the Dutch Penal Code puts foreign investigators or investigators working for an intergovernmental organization on an equal footing – in some respects – as domestic law enforcement officials.

111. Source of these numbers: ICTY Bulletin, No. 17, 22 April 1997, p. 4.

112. A third option, left aside here, is testimony by means of video conference, as was made use of in the Tadic case; see infra n. 128.

113. See Rule 90(A) which reads, in part: ‘Witnesses shall, in principle, be heard directly by the Chambers …”

114. Morris and Scharf, op. cit. n. 96, at p. 249.

115. Cf., Rule 90(A).

116. Rule 71(C ) of the Rules of Procedure and Evidence of the ICTY and the ICTR.

117. Blaskic decision, Trial Chamber, para. 150, supra n. 2: ‘… a Judge or Trial Chamber of the International Tribunal has the authority and power to issue orders to States and individuals, including high government officials …’; the Appeals Chamber confirmed that binding orders may be issued to states (para. 28) and individuals acting in their private capacity (para. 47), but it did not share the Trial Chamber's view that the Tribunal may issue orders to state officials (para. 38), supra n. 3.

118. McClean, D., International Judicial Assistance (Oxford, Clarendon 1992) p. 137.Google Scholar

119. Cf., Art. 8 (witness who has failed to answer a summons to appear shall not be subject to punishment or restraint …) of the ECMACM (1959).

120. Cf., Art. 11 of the ECMACM (1959); however, on the basis of the UN Model Treaty on MLAT (1991) transfer of a witness is subject to his or her consent (Art. 13).

121. McClean, op. cit. n. 118, at p. 137.

122. Cf., Arts. 3–6 of the ECMACM (1959), and Art. 1 of the UN Model Treaty on MLAT (1991).

123. Section 9 of the Finnish implementing law.

124. Section 4(1) of the German implementing law; see also Art. 7 of the Spanish implementing law, according to which persons summoned by the Tribunal shall be under the same obligation to appear as that provided for in Spanish law.

125. Art. 10(7) of the Italian implementing law.

126. Section 11 of the Icelandic implementing law; section 12 of the Swedish implementing law.

127. Cf., section 26 of the Australian implementing law; section 6 of the Finnish implementing law; section 21 of the New Zealand implementing law; sections 10 and 11 of the Swedish implementing law; section 18 of the United Kingdom implementing law.

128. See Decision of Trial Chamber II of 25 June 1996, on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video Link, Case No. IT-94–1-T.

129. Nevertheless, it remains puzzling why the Croatian implementing law has not been addressed by the Trial Chamber; in this law there are provisions that clearly express Croatia's intention to cooperate fully with the Tribunal.