In this case, the Defendant sought to appeal the Tribunal Bureau’s decision not to disqualify a judge pursuant to Rule 15(B). The Appeals Chamber noted that the Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Tribunal’s Bureau pursuant to Rule 15(B).

4. The Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Bureau pursuant to Rule 15(B).[1] Rather, the Appeals Chamber’s consideration of whether a Trial Judge should have been disqualified is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[2]

5. Rule 15(B) envisions a specific two-stage process of consideration for a request to disqualify a Judge. As the Rule clearly states, an application for disqualification is to be made to the Presiding Judge of the Chamber seized of the proceedings, which in this case is Judge Khan, the Presiding Judge of Trial Chamber III.[3] The Presiding Judge is then to confer with the Judge in question. If the party disputes the Presiding Judge’s decision, the Bureau shall determine the matter in a de novo review.[4]

6. The Appeals Chamber observes that Mr. Seromba did not follow this procedure and filed his claim directly with the Bureau,[5] thereby depriving himself of the review procedure envisioned by the Rule. Although it would have been within the discretion of the Bureau to dismiss Mr. Seromba’s request as improperly filed,[6] the Appeals Chamber cannot conclude that it erred in considering the matter in the first instance.

At paras 6, 8 the Appeals Chamber held:

6. In order to consider NATO’s Request, the Appeals Chamber must find that NATO has standing to bring it before the Appeals Chamber. It is clear under Rule 108bis (A) that it is “a State” that “may […] file a request for review of the [Trial Chamber’s interlocutory] decision by the Appeals Chamber […].” Similar to Rule 108bis, the plain language of Rule 54bis only makes reference to issuance of a binding order to produce documents and information to “a State” who may then seek review of that order under Rule 108bis.[1] NATO, as an international organization formed by an alliance of 26 individual sovereign States joined by treaty,[2] does not meet the definition of a State under the International Tribunal’s Rules.[3] Therefore, in order to consider whether it has competence to review NATO’s Request under Rule 108bis, the Appeals Chamber must first determine, proprio motu, whether the Trial Chamber erred in issuing a Rule 54bis order against NATO as an international organisation.[4]

8. […] The Appeals Chamber recalls that the basis for a Trial Chamber’s binding Rule 54bis order to produce is found in Article 29 and paragraph four of Security Council resolution 827 (1993).[5] On the face of those texts, only “States” have the obligation to cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law[6] and to comply with requests or orders for judicial assistance.[7] However, the Appeals Chamber agrees with the Trial Chamber in Simić that “States” refers to all Member States of the United Nations, whether acting individually or collectively and, under a “purposive construction” of the Statute of the International Tribunal, Article 29 applies to “collective enterprises undertaken by States” such as an international organization or its competent organ.[8] It is the general rule in the jurisprudence of the International Tribunal that the rules of treaty interpretation in international law apply to the Statute of the International Tribunal.[9] Article 31(1) of the Vienna Convention on the Law of Treaties[10] provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The Appeals Chamber further agrees with the Simić Trial Chamber that “[t]he mere fact that the text of Article 29 is confined to States and omits reference to other collective enterprises of States does not mean it was intended that the International Tribunal should not also benefit from the assistance of States acting through such enterprises.”[11] Indeed, the Appeals Chamber recalls that “[i]n the final analysis, the International Tribunal may discharge its functions only if it can count on the bona fide assistance and cooperation”[12] of States and the purpose of Article 29 is to require the full cooperation of States with the International Tribunal in fulfilling its crucial mandate. To interpret Article 29 in such a way that the International Tribunal would be prevented from obtaining information or documents from a State when it was acting through an international organization, would undermine the essence of the International Tribunal’s functions. Thus, the Appeals Chamber finds that the International Tribunal’s Article 29 power to issue binding orders is as applicable to international organizations as collective enterprises of States, as it is to individual Member States.(emphasis added).

25. The Appeals Chamber considers that requiring an applicant to make a showing that he has exhausted all other possible avenues that may provide access to the information is too onerous and could inhibit the right to a fair trial. However, the Appeals Chamber recalls that it has held that a Trial Chamber’s binding order to a State to produce documents or information must be “strictly justified by the exigencies of the trial”[1] in light of the reliance of the International Tribunal on “the bona fide assistance and cooperation of sovereign States.”[2] Therefore, the Appeals Chamber holds that it is reasonable under the necessity requirement for an applicant to demonstrate either that: 1) it has exercised due diligence in [trying to obtain] the requested materials elsewhere and has been unable to obtain them; or 2) the information obtained or to be obtained from other sources is insufficiently probative for a fair determination of a matter at trial and thus necessitates a Rule 54bis order.

At para. 38 of the Impugned Decision, the Trial Chamber had found:

The target of such an Order [under Rule 54bis] is material that the organisation possesses. Questions of ownership and whether the material was initially obtained by another are irrelevant. As the Appeals Chamber explained in the Blaškić Subpoena Decision [Blaškić Judgement on Review Request], “the obligation under consideration [that of Article 29] concerns [inter alia] action that States may take only and exclusively through their organs (this, for instance, happens in case of an order enjoining a State to produce documents in the possession of one of its officials).” This applies equally to material received by one State from another. Of course, should a third-party holder of sensitive material assert that its legitimate security interests would be adversely affected by an order for production, it may seek appropriate protective measures.

The Appeals Chamber found that the Trial Chamber “erred […] when summarily dismissing the issues of ownership and origination of information as irrelevant to a Rule 54bis order.” (para. 43). It held:

43. […] Nothing in the text of Rule 54bis or the jurisprudence concerning the International Tribunal’s power to issue compelling orders to States[1] precludes consideration of these matters or indicates that the only question of concern for a Trial Chamber is whether or not the State is in possession of the requested information or documents. Furthermore, the Appeals Chamber recalls that the Rules of the International Tribunal have been intentionally drafted to take into account certain State interests and to provide safeguards for them in order to encourage States in the fulfilment of their obligation to cooperate with the International Tribunal under Article 29 of the Statute.[2] Indeed, under Rule 54bis, a Judge or a Trial Chamber is required to consider the national security interests raised by a State in determining whether to issue a Rule 54bis order or whether to direct, on national security interests grounds, protective measures for the documents or information to be produced by a State under a Rule 54bis order.[3]

It then held that “a properly tailored Rule 54bis order would necessarily avoid requiring production of information over which the United States does not have ownership” (para. 45).

See paras 44-45 for the complete reasoning.

Under Rule 54bis (A)(iii) and (B)(ii), a party requesting an order under Rule 54bis that a State produce documents or information must demonstrate that he has taken “reasonable steps” for making that request. In the present case, the Trial Chamber had found that a party is entitled to request an order pursuant to Rule 54bis even if the State has proposed to grant access to the requested materials under Rule 70 of the Rules. The Appeals Chamber considered that the Trial Chamber erred and held:

31. [A]n applicant may not be found to have met the reasonable steps requirement under Rule 54bis where he or she refused the same requested documents or information when they were volunteered by a State under Rule 70.

 At paras 32-38, the Appeals Chamber gave reasons for the above finding. It inter alia reviewed the States obligation to cooperate with the Tribunal (para. 32), the law applicable to Rule 70 (paras 33 and 38), and the law applicable to Rule 54bis (para. 34).

At paras 15 and 17, the Appeals Chamber recalled that categories of documents can be requested:

15. [A] request for production under Rule 54bis should seek to “identify specific documents and not broad categories”[1] but that the use of categories is not prohibited as such.[2] This is because “[the] underlying purpose of the requirement of specificity is to allow a State, in complying with its obligation to assist the Tribunal in the collection of evidence, to be able to identify the requested documents for the purpose of turning them over to the requesting party.”[3] Therefore, a category of documents may be requested as long as it is “defined with sufficient clarity to enable ready identification” by a State of the documents falling within that category.[4]

17. [T]he Trial Chamber did not err in granting Ojdanić’s Application even though he could not specify the exact time, place, date or content of any one of the intercepted communications for which he seeks information. “The Trial Chamber may consider it appropriate, in view of the spirit of the Statute and the need to ensure a fair trial […] to allow the omission of those details if it is satisfied that the party requesting the order, acting bona fide, has no means of providing those particulars.”[5]

At para. 4, the Appeals Chamber recalled that there is no right of reply by a State in Rule 108bis proceedings[1] but – despite the fact that the USA did not request leave to file a reply – still considered it “in the interests of justice”.[2]

20. […] The Appeals Chamber recalls that it has “the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence.”[1] Similarly, the Appeals Chamber has the power to request a State to provide judicial assistance by producing certain evidence under Article 28(2)(b) of the Statute of the Tribunal. However, the purpose of Rule 115 is to deal with the situation “where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.”[2] The Rule does not permit a party to merely request a particular person to be summoned as a witness to give evidence or that a State be requested to produce certain documentation.[3] In this case, the Appellant has failed to provide material in his possession that would be admissible as additional evidence directed to a specific finding of fact of the Trial Chamber.[4] Therefore, the Appellant’s request falls out of the scope of a motion filed pursuant to Rule 115.

8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

9. […] Pursuant to Rule 115(C) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may decide a motion for leave to present additional evidence on appeal “with or without an oral hearing”. Generally, the granting of an oral hearing is a matter for the discretion of a Chamber and may legitimately be regarded as unnecessary when the information before the Chamber is sufficient to enable it to reach an informed decision.[1] In the instant case, the Appeals Chamber finds that the Appellant has not put forward any convincing reasons justifying that written submissions are inadequate to put forward his arguments in relation to the Rule 115 Motion and thus, does not consider that the efficient conduct of the present proceeding requires an oral hearing prior to rendering its decision on the Rule 115 Motion.[2]