Orders Issued to Individuals

The ICTY also has the power to “pierce the State veil”²⁵²⁸ and to issue orders for the presence of witnesses directly to individuals. Although requests would normally go through the State, the international tribunal may enter into direct contact with an individual subject to the sovereign authority of a State in cases where authorities prevented the Tribunal from fulfilling its mandate.²⁵²⁹ The individual, being within the “ancillary” criminal jurisdiction of the international tribunal, is obliged to comply with its orders, requests and summonses.²⁵³⁰ It thus seems that going through the State is a concession made by the Tribunals, but not one that is legally necessary.²⁵³¹

In any event, the BiH authorities remain directly responsible under Article II.8 of the Constitution when orders to assist in the transferring of witnesses are either exclusively addressed to the authorities or are addressed to the authorities in addition to the individuals concerned. The argument that witnesses may be arrested in the course of their testimony cannot be invoked by the authorities or individuals, given the possibility of safe conduct for witnesses under investigation, i.e., immunity for the testimony and during the time of travel to and from the ICTY on the basis of Rule 54 of the RoPE.²⁵³² Alternatively, witnesses may also use the possibility to testify via video-link.