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]

33. With respect to the request to have access to all correspondence prior to 1997, the Appeals Chamber also notes that any request to order a State to produce documents or information is subject to the provisions of Rule 54 bis of the Rules and that the Applicant fails to indicate whether any reasonable steps were previously taken to obtain the documents or information from Croatia.[1]

33. […] As stated above, the International Tribunal is not vested with any enforcement or sanctionary power vis-à-vis States. It is primarily for its parent body, the Security Council, to impose sanctions, if any, against a recalcitrant State, under the conditions provided for in Chapter VII of the United Nations Charter. However, the International Tribunal is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules. It also has the power to report this judicial finding to the Security Council. […]

See also paras 34-37.

20. [T]he RequestingState had no right to be notified or to be heard before the Binding Order was issued to it.

See also paragraphs 18-19.

In paragraph 34, the Appeals Chamber recalled that a binding order to a State for the production of documents must satisfy four criteria.

38. […] The requirement of specificity [i.e. the first criterion] clearly prohibits the use of broad categories, which, of course, in itself is a relative term.  It does not […] prohibit the use of categories as such.

[…]

40. The second criterion states that the requested documents have to be relevant to the trial of the accused.  The Appeals Chamber takes the view that it falls squarely within the discretion of the Trial Chamber to determine whether the documents sought are relevant to the trial.  Furthermore, the State from whom the documents are requested does not have locus standi to challenge their relevance.  […]

41. The third criterion states that a binding order must not be unduly onerous.  This criterion must be read together with the clearly illustrative statement that “a party cannot request hundreds of documents, particularly when it is evident that the identification, location and scrutiny of such documents by the relevant national authorities would be overly taxing and not strictly justified by the exigencies of the trial”.[1]  Contrary to the assertion of the Requesting State, this criterion does not automatically exclude all requests that involve the production of hundreds of documents.  […]  It entails the striking of a balance between the need, on the one hand, for the Tribunal to have the assistance of States in the collection of evidence for the purpose of prosecuting persons responsible for serious violations of international humanitarian law and the need, on the other hand, to ensure that the obligation upon States to assist the Tribunal in the evidence collecting process is not unfairly burdensome.  […] [T]he crucial question is not whether the obligation falling upon States to assist the Tribunal in the evidence collecting process is onerous, but whether it is unduly onerous, taking into account mainly whether the difficulty of producing the evidence is not disproportionate to the extent that process is “strictly justified by the exigencies of the trial”.[2] 

[…]

43. The fourth criterion states that a State shall be given sufficient time for compliance with a binding order.  [I]t does not follow from this requirement that a State is entitled to be heard prior to the issuance of the binding order.  It simply sets out the obvious in the sense that a State must be given a reasonable time-frame in which to comply.  It follows from the statement that “[r]easonable and workable deadlines could be set by the Trial Chamber after consulting the requested State”,[3] and that it falls within the discretion of the Trial Chamber to do so. […]

[On 17 November 1999, Rule 54bis was adopted.]