In its decision yesterday, the Chamber found that, given that one of the general requirements of crimes against humanity is that there be an attack on a predominantly civilian population, whether the enclave was demilitarised or was in fact heavily armed is relevant to these underlying offences, and thus to the accused’s case. Accordingly, the Chamber considered, by majority, Judge Kwon dissenting, that documents related to the smuggling of arms to Srebrenica are necessary for the determination of the accused’s state of mind in July 1995, as well as to the Chamber’s determination of the general requirements of crimes against humanity in relation to the underlying offences for which the accused is charged with responsibility.
The accused also stated that the documents concerning the provision of arms to the Bosnia and Herzegovina army by UN personnel are relevant to his case as they will shed light on the status of the UN personnel detained by the Bosnian Serbs. Despite the objection from Germany and prosecution, the Chamber, by majority, found that the issue of UN personnel’s involvement in arms smuggling bears relevance to the accused’s case.
Germany argued that some of the documents requested by the accused may raise national security concerns. In this regard, the Chamber first noted that a state does not have a blanket right to withhold the production of documents on the basis that this raises national security concerns. Germany also argued that some of the materials sought were based upon information from third states and thus could not be disclosed to the accused without the permission of those states.
The Chamber referred to the Appeals Chamber’s finding in the Blaškić case that if states were able to unilaterally assert national security claims and refuse to surrender those documents, this could jeopardise the very function of the International Tribunal, and defeat its essential object and purpose. At the same time, the Trial Chamber noted that the Rules do not leave the concerned states without any alternative because their concerns may be addressed by recourse to Rule 54 bis, which provides for various protective measures for the documents at issue, should they be requested.
Accordingly, the Trial Chamber ordered Germany to search for these categories of documents requested by the accused and deliver them to the accused. Germany was also ordered to indicate which of the documents ordered to be produced are affected by national security concerns, and which of those relate to the protection of third states or organisations, and shall, if it deems it to be necessary, make objections and/or request protective measures with a reference to specific documents affected.
Karadžić, Decision on the Accused's Application for Binding Order pursuant to Rule 54 bis (Federal Republic of Germany), Case No. IT-95-5/18-T, T. Ch., 19 May 2010