22
without having the power to compel them to cooperate through enforcement measures. 88
The Tribunal must rely on the cooperation of States because evidence is often in the custody
of a State and States can impede efforts made by counsel to find that evidence. Moreover,
without a police force, indictees can only be arrested or transferred to the International
Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by
the Prosecution or the appropriate international bodies. Lacking independent means of
enforcement, the ultimate recourse available to the International Tribunal in the event of
failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute,
is to report the non-compliance to the Security Council. 89
52.
In light of the above considerations, the Appeals Chamber is of the view that under
the Statute of the International Tribunal the principle of equality of arms must be given a
more liberal interpretation than that normally upheld with regard to proceedings before
domestic courts. This principle means that the Prosecution and the Defence must be equal
before the Trial Chamber. It follows that the Chamber shall provide every practicable
facility it is capable of granting under the Rules and Statute when faced with a request by a
party for assistance in presenting its case.
The Trial Chambers are mindful of the
difficulties encountered by the parties in tracing and gaining access to evidence in the
territory of the former Yugoslavia where some States have not been forthcoming in
complying with their legal obligation to cooperate with the Tribunal. Provisions under the
Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side
may have equal access to witnesses. The Chambers are empowered to issue such orders,
summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes
of an investigation or for the preparation or conduct of the trial. This includes the power to:
(1) adopt witness protection measures, ranging from partial to full protection;
(2) take evidence by video-link or by way of deposition;
(3) summon witnesses and order their attendance;
88
See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II
of 18 July 1997”, The Prosecutor v. Tihomir Bla{ki}, Case No.: IT-95-14-AR108bis, Appeals Chamber,
29 October 1997, para. 26.
89
Ibid., para. 33.
Case No.: -94-1-A
15 July 1999