(See previous post “Lawyers' privilege and Tribunal's intervention in a domestic jurisdiction (1)” on this blog)
In regard to domestic investigations against the members of the Defence team, the Trial Chamber in the Gotovina et al. case noted that States have a legitimate interest in investigating and prosecuting possible crimes committed on their territory (Decision of 12 March).
According to the Chamber, an obligation to refrain from subjecting to the exercise of domestic jurisdiction members of the Defence before an international court could frustrate this legitimate State interest.
On the other hand, parties to a trial before an international court must fulfil part of their tasks, such as interviewing witnesses and conducting on-site investigations, on the territory of States and therefore within the scope of States’ territorial jurisdiction, and away from the seat of the international court or tribunal. The proper functioning of an international court may require some form of protection for defence members from the improper exercise of domestic jurisdiction, in order to protect the performance of their functions.
The Chamber considered that a State may not exercise its jurisdiction by improperly subjecting Defence members to legal process, with regard to acts that fall within the Defence’s fulfilment of its official function before the Tribunal, with the intended or foreseeable result of substantially impeding or hindering the performance by defence members of their functions.