International Decision, Prosecutor v. Milutinovic et al., Decisions on Requests of the United States of America and the North Atlantic Treaty Organisation for Review

Abstract:     
In May 2006, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia granted the requests of the United States and the North Atlantic Treaty Organization and set aside the trial chamber's decision ordering the production of intercepted communications sought by defendant Dragoljub Ojdanic. The appeals chamber held that Rule 54bis of the ICTY Rules of Procedure and Evidence does not require the possessor of intelligence information to produce that information when that state or international organization is not its owner or originator and that an order under Rule 54bis will not issue when a party refuses a state's cooperative efforts to provide information pursuant to Rule 70. By focusing on intercepted communications, which are among the most classified of intelligence information because of the methods by which they are obtained, Ojdanic was obviously seeking a confrontation with the United States for graymail purposes. He could have reformulated his request to focus on the substance of the information sought rather than the method of its collection, but he did not. The appeals chamber could thus have rejected Ojdanic's application in its entirety and remanded the matter to the trial chamber so that it would not center on intercepted communications as such. Instead, the court's decision, though formally upholding the review requests of the United States and NATO, provides a roadmap for defendants to pursue graymail strategies in the future.

Keywords: cooperation, binding orders, intelligence, national security, fair trials, international criminal courts, ICTY

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