HEARING ON CROATIA'S APPEAL AGAINST SUBPOENA ENDS

THE HAGUE, Sept 22 (Hina) - A discussion on Croatia's appeal against a decision on the issuance of subpoenas which was held before the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ended in The Hague on Monday. The Tribunal's president, Antonio Cassese, announced that the appeals chamber could reach a decision on the appeal in about three weeks . Croatia was represented by the standing Croatian representative at the UN, Ivan Simonovic, a professor of the Zagreb Faculty of Law, Ivo Josipovic, and US attorneys David Rivkin and Lee Casey. The prosecution was represented by the ICTY chief prosecutor Louise Arbour and prosecutor Mark Harmon. Croatia regards the issuance of a subpoena duces tecum by the Hague-based international war crimes tribunal to states or state officials as unfounded in international law, logically inconsistent and politically unacceptable, Croatian ambassador to the UN Ivan Simonovic said on Monday at the beginning of the hearing before the tribunal's appeals chamber. Simonovic, who heads a delegation representing Croatia in a hearing on its appeal against the subpoena decision, said that Croatia's resistance to the use of subpoenas against states or their officials was not resistance to cooperation with the tribunal, but that it "derives from a legitimate request that such cooperation be maintained within the powers of the tribunal and with due respect for the sovereignty of the states involved." He explained that the subpoena was "legally unfounded because neither the tribunal's statute nor relevant UN Security Council resolutions or international law empower the tribunal to issue subpoenas to states." "The subpoena is logically inconsistent because the only possible outcome in the event of a state being non-cooperative, regardless of whether it is 'a request for cooperation', 'an order' or 'a subpoena', is that it should be reported by the Security Council," Simonovic said, adding that the tribunal was not authorised to punish a state since "a report to the Security Council cannot be regarded as a punishment." The Croatian ambassador said that there were no grounds for using the term subpoena and "therefore the practice of calling a request for cooperation or an order 'a subpoena' is completely arbitrary and without any legal or logical justification." "A subpoena is politically unacceptable to the Republic of Croatia as it would be to most states since it jeopardises its sovereignty and equality. There is no case of a subpoena having been issued to a sovereign state in this context," Simonovic said, adding that there was no foundation in the tribunal's statute and international law and practice for creating such a precedent. As regards the issuance of a subpoena to senior government officials, Simonovic said that they could not be distinguished from the state when performing official duties. "That the tribunal can issue subpoenas to senior state officials requesting that they deliver state documents, including documents of national security interest, is equally unfounded in the tribunal's statute as is the issuance of subpoenas to states," he said. Simonovic recalled that the UN Security Council had made it clear in the process of establishing the tribunal in The Hague that the tribunal was not entitled to create new laws and legal practices but that it should rely on its statute and the existing international law. "Croatia fully supports the efficiency of the tribunal - but not when it does not respect the fundamental principles of international law: the principle of state sovereignty and sovereign equality among states," Simonovic said. He concluded by saying that "a key to the tribunal's efficiency lies in the cooperation of states and in the increased pressure of the Security Council when they fail to cooperate." After Simonovic's statement, legal representatives of Croatia, Zagreb law professor Ivo Josipovic and US lawyers David Rivkin and Lee Casey, responded to questions by the five-member appeals chamber headed by tribunal president Antonio Cassese. Croatia did not oppose the commitment to hand over the documents, except when national security interests are in question, but it did oppose the form of subpoena, Josipovic said. The discussion also focused on who established whether a document was of interest for national security - the country itself or a panel of judges. Croatia held that the country should decide, while Arbour held that the panel of judges should discuss whether the document was of interest for national security. The very remark that national security was in question could be used as an excuse not to cooperate with the Tribunal, Arbour said, adding that the country might ask some measures of protection, such as a discussion behind closed doors. If the term 'subpoena' was inappropriate for a country then it should be replaced, but in such a way as to show that it is an obligatory order for documents to be submitted, Arbour said. She added that the prosecution had received a letter from Croatia four days ago, that a part of the documents had been gathered that that they had received on Monday morning a small part of the documents, but that these were not the documents asked for in the subpoena. Croatian Defence Council General Tihomir Blaskic's attorney, Russel Hayman, asked that the defence be enabled equal access to evidence as the prosecution. The subpoena asked for documents supporting the indictment, but not those which might be beneficial for the accused, Hayman said. The defence had asked of Bosnia-Herzegovina to submit documents about the presence of certain Bosnia-Herzegovina Army units in the Lasva valley, bit had not received any, he said. The defence did not have equal access to evidence as the prosecution, many doors were closed in international organisations and governments of certain states, Hayman said. (hina) lm jn 222059 MET sep 97