Chapter 13: The International Criminal Tribunals for Yugoslavia and Rwanda 371
defy compliance, the Tribunal is endowed with inherent power to make a judicial
determination regarding a State’s failure to observe the court’s Statute or Rules. This
power also includes formal notification to the Security Council.
217
The fact that Art 29
constitutes an
erga omnes
obligation empowers all UN Members to request termination
of the breach once a relevant judicial determination has been made.
218
Binding orders in the form of subpoenas cannot be addressed to State officials
acting in their official capacity. It is the prerogative of each State to determine the
internal organs competent to receive and carry out the order.
219
TheAppeals Chamber
found that it possessed unlimited authority, on the basis of its incidental jurisdiction,
to issue orders to private individuals within the framework of domestic channelling
procedures, unless otherwise permitted by national law or when State authorities
refuse to comply by hindering this process.
220
The concept of private individuals for
the purposes of Art 29 also includes State agents possessing information or material
obtained before they accepted office, members of peace-keeping forces, because their
mandate stems from the same source as the Tribunal, and State agents who refuse to
obey national authorities.
221
As for possible national security concerns, although every
possible protective measure should be observed, the Appeals Chamber emphasised
the exceptional departure from Art 2(7) of the UN Charter relating to the Security
Council’s authority acting under Chapter VII to interfere in the domestic affairs of
States, the establishment of the ICTY being one such specific application.
222
In a related case in 1999, the ICTY was seized with a request by the prosecutor to
order the ICRC to disclose information its employees had collected in the course of
their duty. The Chamber held that admissibility of evidence may be limited not only
by the ICTY Statute and Rules, but also by customary international law.
223
The ICRC
was found to be an independent humanitarian organisation organised under Swiss
law, generally acknowledged as enjoying international legal personality, and whose
functions and tasks were directly derived from international law, that is, the Geneva
Conventions and Protocols.
224
Based on the object and purpose of the Geneva
Conventions, the ICRC is recognised by States parties as enjoying impartiality,
neutrality and confidentiality, all of which are necessary in order to carry out its
mandate. The ICTY noted that widespread ratification of these treaties, taken together
with relevant State acceptance, reflected a customary international law right to non-
disclosure by the ICRC.
225
In any event, the Trial Chamber held that Art 29 of the
ICTY Statute does not apply vis-à-vis international organisations.
226
217
Ibid,
para 33.
218
Ibid,
para 36.
219
Ibid
,
paras 38, 43.
220
Ibid,
para 55.
221
Ibid,
paras 49–51.
222
Ibid,
para 64.
223
Prosecutor v Simic and Others,
Decision on the Prosecution Motion under r 73 for a Ruling Concerning
the Testimony of a Witness (27 July 1999), paras 41–42.
224
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