1 Prosecutor v. Milutinović, Case No. IT–05–87–AR108bis.1, Decision on Request of the North Atlantic Treaty Organisation for Review (May 15, 2006) (on file with author) [hereinafter NATO Review Decision]; Prosecutor v. Milutinović, Case No. IT–05–87–AR108bis.2, Decision on Request of the United States of America for Review (May 12, 2006) (on file with author) [hereinafter U.S. Review Decision]. Except as noted, the ICTY materials cited in this case report are available on the Tribunal’s Web site, <http://www.un.org/icty/>.

2 Also charged are Milan Milutinović, Nikola Šainović, Nebojša Pavković, Vladimir Lazarević, Vlastimir Djordjević, and Sreten Lukić.

3 [Redacted] Third Amended Joinder Indictment, para. 19 (June 21, 2006), Prosecutor v. Milutinović, Case No. IT–05–87–PT [hereinafter Indictment].

4 Ojdanić was initially charged in an indictment (Case No. IT–99–37), confirmed on May 24, 1999, that included Slobodan Milošević, Milutinović, Šainović, and Vlajko Stojiljković. That indictment was thrice amended—including, in its last iteration, the removal of defendants Milošević (for trial separately) and Stojiljković (who had died)— and restyled Prosecutor v. Milutinović. On motion of the Office of the Prosecutor, granted on July 8, 2005, the Milutinović case was joined with the case against Pavković, Lazarević, Djordjević, and Lukić (Case No. IT–03–70). The joinder indictment (Case No. IT–05–87), which created the instant case, was subsequently amended. Also, Djordjević, who was still at large, was severed so that the trial could begin.

5 Indictment, supra note 3, para. 19.

6 See id, paras. 72, 73, 75, 77.

7 See id., para. 20.

8 Prosecutor v. Milutinović, Case No. IT–99–37–PT, Decision on Application of Dragoljub Ojdanić for Binding Orders Pursuant to Rule 54bis, disposition, para. (1) (Mar. 23, 2005).

9 See, e.g., Transcript of Hearing Before the Trial Chamber at 794 (Dec. 2, 2004)Google Scholar, Prosecutor v. Milutinović, Case No. IT–99–37–PT.

10 The second application demanded:

• (A)Copies of all recordings, summaries, notes or text of any intercepted communications (electronic, oral, or written) during the period 1 January 1999 and 20 June 1999 in which [Ojdanić] was a party and which:

  • (1)[Ojdanić] participated in the communication from Belgrade . . . ;

  • (2)the communication was with one of [23] person[s] listed in [an attachment];

  • (3)may be relevant to one of the following issues in the case:

    • (a)[Ojdanić’s] knowledge or participation in intended or actual deportation of Albanians from Kosovo or lack thereof;

    • (b)[Ojdanić’s] knowledge of participation in the intended or actual killing of civilians in Kosovo or lack thereof;

    • (c)whether formal chain of command on matters pertaining to Kosovo was respected within the FRY or Serbian government;

    • (d)[Ojdanić’s] efforts to prevent and punish war crimes in Kosovo or lack thereof.

The application also sought intercepted communications, as above, in which Ojdanić, though not a party, was “mentioned or referred to” (paragraph B); copies of various documents, including reports, evaluations, or comments of General Wesley Clark concerning Ojdanić; and information received from General Momčilo Perišić pertaining to Ojdanić (paragraph C). See U.S. Review Decision, supra note 1, para. 12.

11 See Prosecutor v. Milutinović, Case No. IT–05–87–PT, Decision on Second Application of Dragoljub Ojdanić for Binding Orders Pursuant to Rule 54bis (Nov. 17, 2005) [hereinafter Trial Chamber Decision on Second Application]. At the time of the trial chamber hearing, the second application was limited to NATO, Canada, Iceland, Luxembourg, the United Kingdom, and the United States. By the time that the trial chamber ruled, Ojdanić conceded that the United Kingdom had complied with the requests contained in paragraphs A and B. See id., disposition, para. 2. Subsequent to the trial chamber’s decision, Canada, according to Ojdanić, produced three documents “in conformity with the Trial Chamber’s decision.” General Ojdanić’s Consolidated Response to Requests for Review, n.42 (Dec. 12, 2005), Prosecutor v. Milutinović, Case No. IT–05–87 (on file with author) [hereinafter Consolidated Response].

12 Trial Chamber Decision on Second Application, supra note 11, para. 22.

13 Rule 70(B), (F)

14 Trial Chamber Decision on Second Application, supra note 11, para. 22.

15 Id., para. 34.

16 Id., para. 35.

17 Id., para. 38.

18 Id., disposition. For a number of reasons, including relevance and necessity, the trial chamber denied Ojdanić’s request for the documents outlined in paragraph C of his second application. See supra note 10.

19 In particular, the appeals chamber found that a state has no standing to challenge the relevance and necessity of a request. Regarding specificity, the chamber noted that the sole purpose of that requirement was “to allow a State, in complying with its obligation to assist the Tribunal in the collection of evidence, to be able to identify the request documents for the purpose of turning them over to the requesting party.” U.S. Review Decision, supra note 1, para. 15.

20 Quoting Prosecutor v. Blaškić, Case No. IT–95–l4–AR108bis, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, para. 65 (Oct. 29, 1997).

21 This conclusion accords with the rule stated in Article 73 of the Rome Statute of the International Criminal Court (ICC). The Statute and other documents relating to the ICC are available at <http://www.icc–cpi.int>.

22 For the same reason, the appeals chamber found mistaken the trial chamber’s conclusion that the originator principle would also not apply to material received by one state from another. See U.S. Review Decision, supra note 1, para. 44.

23 See, e.g., Jacob, Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404 (2000)Google Scholar; Jacob, Katz Cogan, International Courts and Fair Trials: Difficulties and Prospects, 27 Yale J.Int’l L. 111 (2002)Google Scholar.

24 See generally Göran, Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (2002)Google Scholar; National Security and International Criminal Justice (Herwig Roggemann & Petar Šarčević eds., 2002); Grant, Dawson & Mieke, Dixon, The Protection of States’ National Security Interests in Cases Before the ICTY: A Descriptive and Prescriptive Analysis of Rule 54bis of the Rules of Procedure and Evidence, in The Dynamics of International Criminal Justice: Essays In Honour of Sir Richard May 95 (Hirad, Abtahi & Gideon, Boas eds., 2006)Google Scholar; Laura, Moranchek, Protecting National Security Evidence While Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY, 31 Yale J. Int’l L 477, 486–90 (2006)Google Scholar.

25 The appeals chamber’s holding on the originator principle no doubt was made easier by its conclusion that Ojdanić could request this same information directly from NATO’s member countries. See NATO Review Decision, supra note 1, para. 20.

26 NATO denied that it possessed any of the information requested by Ojdanić; it therefore requested that the trial chamber’s decision be reversed on that ground. See NATO Request for Review on Second Application of Dragoljub Ojdanić for Binding Orders Pursuant to Rule 54 bis at 2 (Dec. 2, 2005), Prosecutor v. Milutinović, Case No. IT–05–87 (on file with author). Although the appeals chamber could have grounded its decision on this fact alone, it ignored the contention entirely. One can only speculate as to the appeals chamber’s motivation for proceeding as it did, but one possibility is that it was seizing the opportunity to establish the principle, which is of great institutional import to the Tribunal, that international organizations (as a general category) are subject to Article 29 of the Statute. The trial chambers had taken conflicting positions on the topic. Compare Prosecutor v. Kovačević, Case No. IT–97–24–PT, Decision Refusing Defence Motion for Subpoena (June 23, 1998) (finding that the ICTY “has no authority to issue [a] subpoena to the [Organization for Security and Co–operation in Europe], it being an international organization and not a State”), with Prosecutor v. Kordić, Case No. IT–95–14/2–T, Order for the Production of Documents by the European Community Monitoring Mission and Its Member States (Aug. 4, 2000) (issuing an order to, inter alia, the European Union Council and Commission to disclose documents), Prosecutor v. Simić, Case No. IT–95–9–PT, Decision on Motion for Judicial Assistance to Be Provided by SFOR and Others, para. 48 (Oct. 18, 2000) (holding that Article 29 should apply to international organizations and their component organs), and Prosecutor v. Nikolić, Case No. IT–94–2–PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, para. 49 (Oct. 9, 2002) (same). Cf. Prosecutor v. Simić, Case No. IT–95–9–PT, Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross (June 7, 2000) (concluding that the ICRC “has a right under the Geneva Conventions and the Additional Protocols to insist upon non–disclosure in judicial proceedings of information relating to [its] work”). The convoluted way in which the appeals chamber reached the issue—through a discussion of NATO’s standing to file a request for review—would appear to confirm the purposive nature of the appeals chamber’s method. This holding by the appeals chamber regarding the Tribunal’s authority over international organizations, which was not briefed by the parties, is subject to debate.

27 The appeals chamber decision upholds and strengthens the Rule 70 framework and thereby builds on previous Tribunal decisions. See, e.g., Prosecutor v. Milošević, Case No. IT–02–54–AR108bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70 (Oct. 23, 2002).

28 As explained by the United States at the hearing before the trial chamber,

Transcript of Hearing Before the Trial Chamber at 141 (Oct. 4, 2005), Prosecutor v. Milutinović, Case No. IT–05–87. The emphasis on protecting sources and methods is pervasive in U.S. national security law. See, e.g., National Security Act of 1947, sec. 103(c)(7).

29 It is always difficult to attribute a particular motivation—such as graymail—to any act absent some explicit acknowledgment by the actor. Here, though, the defendant’s request seems to speak for itself. Indeed Ojdanić’s counsel conceded to the United States: “Frankly, I expect that this request is going to create some tension between the right of the government to protect its intelligence information and the right of the accused to discover relevant material.” Transcript of Hearing Before the Trial Chamber at 788 (Dec. 2, 2004), Prosecutor v. Milutinović, Case No. IT–99–37–PT. Lest there be doubt, consider the words of Peter B. Robinson (one of the attorneys representing Odjanić), a former assistant U.S. attorney and also the author of The Tribunal. In that novel, Kevin Anderson, defense counsel for the fictional Serbian warlord Dragoljub Zaric (note the first name), tells his client that he intends to file a graymail motion. “The strategy,” Anderson explains, “is to try and put the prosecutor in a position where they have to choose between revealing sensitive intelligence information and dismissing the case. Once in a great while, the intelligence agencies won’t reveal the information and the case gets dismissed.” Peter B., Robinson, The Tribunal 58 (2004)Google Scholar.

30 Request of the United States of America for Review of the Decision on Second Application of Dragoljub Ojdanic for Binding Orders Pursuant to Rule 54bis at 11 (Dec. 2, 2005), Prosecutor v. Milutinović, Case No. IT–05–87 (on file with author).

31 Id. at 12 & n.22.

32 The appeals chamber could have done so on a variety of doctrinal grounds, including that the applicant failed to take reasonable steps to obtain voluntary cooperation in accordance with Rule 54bis or by construing the specificity, relevance, and necessity requirements more strictly. These requirements of the rule should be construed on a sliding scale, depending on the type of information sought.

33 Because ICTY judges lack security clearances, the evidence could not be passed to them—even if the protections laid out in Rule 54bis(F)–(G) were otherwise satisfied.

34 That said, perhaps the appeals chamber has anticipated this possibility and hopes that whatever information the United States provides pursuant to Rule 70 will obviate the need for a Rule 54bis binding order even absent the sharing of any intercepted communications— either because the defendant will be satisfied with the evidence provided or because, as a matter of law, that evidence would reduce any fair trial concerns that would stem from the nonproduction of other evidence.

35 See ICTY Weekly Press Briefing (Aug. 16, 2006) (“General Ojdanic’s Request to United States of America, NATO and General Wesley K. Clark Pursuant to Rule 70”).

36 See Transcript of Hearing Before the Trial Chamber at 44–46 (Aug. 25, 2005)Google Scholar, Prosecutor v. Milutinović, Case No. IT–05–87 (discussing a prosecution motion to provide protective measures to two witnesses giving evidence about communications apparently intercepted by Croatia); Consolidated Response, supra note 11, para. 74 (describing an intercepted communication provided by Croatia).

37 See, e.g., Prosecutor v. Krstić, Case No. IT–98–33–T, Judgment, para. 105 (Aug. 2, 2001) (“Prominently featured in the evidence presented by the Prosecution in this case, were transcriptions of conversations between [Bosnian Serb Army] personnel in July and August 1995 that were intercepted by intelligence officers from the [Army of Bosnia and Herzegovina].”); Prosecutor v. Brdjanin, Case No. IT–99–36–T, Decision on the Defence “Objection to Intercept Evidence,” para. 1 (Oct. 3, 2003) (“The Office of the Prosecutor . . . has submitted for admission several transcripts of intercepted telephone conversations, recorded by internal security personnel of the government of the Republic of Bosnia and Herzegovina . . . before and during the war.”); Prosecutor v. Milošević, Case No. IT–02–54–T, Final Decision on the Admissibility of Intercepted Communications (June 14, 2004); Prosecutor v. Blagojević, Case No. IT–02–60–T, Decision on the Admission into Evidence of Intercept–Related Materials (Dec. 18, 2003) (admitting intercepts made by the Army of Bosnia and Herzegovina).

38 See, e.g., Prosecutor v. Milošević, Case No. IT–02–54–T, Decision on Serbia and Montenegro’s Motion to Vacate or Suspend 9 March 2006 Decision and Request to Redact Parts of Public Version of Decision, para. 1 (Apr. 12, 2006) (referring to a previous, confidential decision ordering Serbia and Montenegro to produce various documents); Prosecutor v. Kordić, Case No. IT–95–14/2, Decision on the Request of the Republic of Croatia for Review of a Binding Order (Sept. 9, 1999) (affirming the issuance of a binding order on Croatia); Prosecutor v. Blaškić, Case No. IT–95–14, Decision on the Prosecutor’s Request for the Issuance of a Binding Order to Bosnia and Herzegovina for the Production of Documents (Feb. 27, 1998) (issuing a binding order on Bosnia and Herzegovina).

39 It is unclear the extent to which the appeals chamber’s decision—particularly regarding relevance and necessity— will serve as precedent for the ICC. Requests by ICC defendants for cooperation from states must meet materiality and specificity requirements. See ICC Rules of Procedure and Evidence, Rule 116. If a state refuses to provide information on the basis of national security, the ICC may, inter alia, “make such inference in the trial of the accused as to the existence or non–existence of a fact, as may be appropriate in the circumstances.” ICC Statute, Art. 72(7) (a) (iii). Such an inference can be made, however, only upon a determination “that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused.” Id., Art. 72(7). The ICC may not, however, issue a binding order in these circumstances. See generally Rodney, Dixon & Helen, Duffy, Article 72: Protection of National Security Information, in Commentary on the Rome Statute of the International Criminal Court 937 (Otto, Triffterer ed., 1999)Google Scholar; Peter, Malanczuk, Protection of National Security Information, in 2 The Rome Statute of The International Criminal Court: a Commentary 1371 (Antonio, Cassese, Paola, Gaeta, & John, R. W. D. Jones eds., 2002)Google Scholar.