The procurement of information in the sole possession of states is pivotal to the fair and expeditious conduct of trials before the ICTY. At the same time, states possessing sought-after information may have certain legitimate interests they wish to protect in relation to such material, for example national security interests. Taking into account the uniqueness of the ICTY as an institution created by the Security Council under Chapter VII of the UN Charter, this article analyses situations where tensions have arisen, or may potentially arise, between state interests and the presentation of evidence crucial to the guilt or innocence of the accused. After setting out the continuously developing law of the ICTY that has striven to reconcile these competing demands, the authors propose alterations to the Rules of Procedure and Evidence, in the form of amendments to Rule 54 bis and a new rule, Rule 54 ter.

This article considers the Randal Decision, in which the ICTY Appeals Chamber established a qualified privilege from testimony for war correspondents before the ad hoc tribunals. It sets out the various arguments advanced by Jonathan Randal in support of such privilege and the privilege as formulated by the Appeals Chamber. Finally, it analyzes the possible impact of the Decision and its possible application by the ad hoc tribunals, other international courts, such as the ICC, and domestic courts.

In a world of sovereign states, gathering evidence is one of the major challenges for the new international criminal tribunals. The decision in Prosecutor v. Blaškić, by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, shows some of the difficulties. The Tribunal finds it has the power to issue compulsory orders to sovereign states for the production of evidence, although not to issue a subpoena as such. The Tribunal also assumes the power to review a state's national security privilege, a holding that may challenge the more protective provisions of the new Rome treaty for a permanent International Criminal Court. However, the Appeals Chamber's declaration that there is no power to summon particular government officials, even for eyewitness testimony, that document production must be limited, and that its orders cannot be directly enforced, may hobble the Tribunal's capacity to muster the necessary proof at trial.