International Criminal Tribunal for the Former Yugoslavia


H.E. BRANKO SALAJ, appeared as Ambassador Extraordinary and Plenatentory to the Court of Her Majesty, Queen of the Netherlands for the Republic of Croatia MR. ORSAT MILJENIC, appeared as first secretrary of the Croatian Embassy

( open session )

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1   (Open 10.15)



4   JUDGE MCDONALD: This is a hearing in IT-95-14-T in regard to orders I entered on

5   February 14 1997 to ensure compliance with subpoenas duces tecum that I had also

6   signed. May I have the appearances please for the Prosecutor?


8   MR. HARMON: Good afternoon Your Honor. My name is Mark Harmon.


10   There is insufficient translation due to technical problems. Some discussion in the

11   background.


13   JUDGE MCDONALD: We will have to stand in recess for approximately five minutes for

14   some technical problems to be adjusted,and if you will just be patient we will stand in

15   recess for five minutes.



18   (court in recess)


20   (Court in session)


22   JUDGE MCDONALD: Now once again let me verify that everyone can hear me. This is a

23   hearing in IT-95-14-T in regard to orders that I entered to ensure compliance with the

24   subpoena duces tecum on February 14th 1997. I apologise for the technical difficulties

25   when are not using our courtroom we are always attempting to upgrade it and so we

26   have been working on it and it appears that we are still working on it. But everyone

27   can hear me now, and we are ready to proceed. May I have appearances please for the

28   Prosecutor.


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1   MR. HARMON: Good afternoon your Honour. My name is Mark Harmon Appearing

2   with me are my colleagues Mr Gregory Kehoe and Mr Andrew Cayley.


4   JUDGE MCDONALD: May I have appearances from this side, sir


6   MR. SALAJ: I am Branko Salaj, Ambassador Extraordinary and Plenatentory to the Court

7   of Her Majesty, Queen of the Netherlands.

8   If I may add I am here under a set of particular instructions which I hope that your Honour,

9   will make it possible for me to read to the Record.


11   Judge McDonald: Fine. Thank you Ambassador Salaj. Appearances please


13   MS. VIDOVIC: My name is Vasvija Vidovic. I attend this Session as the Representative of

14   Bosnia Herzegovina.


16   Judge McDonald: And sir may I have your name.


18   MR. MILJENIC: I am Orsat Miljenic for the Croatian Embassy, first Secretary


20   JUDGE MCDONALD: Now Ambassador Salaj and Ms. Vidovic, and Mr Miljenic, you are

21   not appearing today as Counsel and that's why you are not dressed in robes. Very

22   often Ms. Vidovic, you are here and you are in a robe, but today you are appearinghere

23   as a representative but not as a legal counsel, so thank you for being here but that

24   explains why the Prosecutor of course are dressed in their robes. Mr Harmon, would

25   you like to proceed?


27   MR HARMON: Yes, your Honour. Pursuant to your Honour's Court order of 14 February

28   in which two additional orders were directed, one to the Republic of Croatia and one to

29   Minister Susak, and a second to Bosnia Herzegovina and also to Mr Jelavic, I wish to

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1   report to the Court that there has been non-compliance with the subpoenas. We have

2   not received a single document in relation to your order of 14 February 1997.


4   JUDGE MCDONALD: Mr Harmon, just by way of background then, on January 15 1997,

5   in my capacity as the Confirming Judge for this indictment, I signed a subpoena duces

6   tecum, two subpoenas duces tecum, one addressed to the Republic of Croatia and it

7   was also addressed to the Defense Minister Susak. I signed a second subpoena duces

8   tecum that was addressed to Bosnia Herzegovina and to Mr Ante Jelavic, the successor

9   of the custodian of the records of the Central Archive of what was formerly the

10   Ministry of Defense of the Croatian Community Herzec Bosna. I signed those

11   subpoenas duces tecum as I indicated since I was the Confirming Judge, I had received

12   the indictment, reviewed the evidence and then confirmed it. The subpoena directed the

13   production of certain documents, some, Mr. Harmon you might help me, 12 were

14   there, 13 I suppose......


16   MR. HARMON: Yes, your Honour. In one subpoena there were 13 items requested and in

17   the other subpoena there were approximately 19 items requested.


19   JUDGE MCDONALD: A hearing then was held on February 14 1997 at 9:00 am and at that

20   time the Prosecutor appeared and had indicated that there had been non compliance

21   with the subpoena, the subpoena duces tecum directed directed to the Republic of

22   Croatian and the Ministry of Defense, as to the subpoena duces tecum directed to

23   Bosnia Herzegovinia and also directed to Mr Jelavic. As I recalled the Prosecutor

24   stated that he has received some, I think it was 11 items, a day or so before, that had

25   been delivered not directly to the Prosecutor's Office but to an other party. And we

26   then recessed and on that date, Ms. Vidovic, you appeared on behalf of Bosnia

27   Herzegovina. There was no appearances on behalf of the Republic of Croatia. We then

28   recessed, Ms. Vidovic, you then met with the Prosecutor in an attempt to review the

29   documents that had been received to ascertain just what they were and whether they

30   perhaps met a partial compliance. Then at the close of that day, I entered an order of

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1   non compliance. In that order of non compliance which I entered on February 14, the

2   order was entitled "Order of a Judge to ensure compliance with subpoena duces

3   tecum". And let's see I left out a piece regarding the Republic of Croatia, because the

4   Republic of Croatia did respond by letter dated January 15 1997 to the International

5   Criminal Tribunal for the former Yugoslavia, my attention setting out its position with

6   respect to that subpoena duces tecum. We then entered an order to ensure compliance

7   with the subpoena duces tecum addressed to the Republic of Croatia, also addressed to

8   the Defence Minister Susak; and a second order that was addressed to Bosnia

9   Herzegovina and to Mr Ante Jelavic. In that order, in those orders I directed that the

10   Republic of Croatia is to ensure compliance with the subpoena duces tecum, which I

11   entered on 15 June and directed to Defence Minister Susak to produce the documents

12   described in the subpoena before February 19, 1997 at 2 pm, and I entered the same

13   order with respect to Bosnia Herzegovina, except it was addressed to Mr Jelavic. If the

14   items requested in the subpoena duces tecum then were not produced, then a

15   representative of the Republic of Croatia and the Defence Minister, Susic, were to

16   appear before me today at 2:00 pm to show cause for their non-compliance and to

17   inform me how and when they will comply with this subpoena duces tecum, and once

18   again the order was entered with respect to Bosnia Herzegovina directing a

19   representative of Bosnia Herzegovina to appear and Mr Jelavic. So we are here today

20   to hear from the parties regarding the order that I entered on February 14, 1997 to

21   ensure compliance with the supoena duces tecum. I heard from Mr Vidovic when we

22   last met and we had received the written reply from Croatia. Mr Harmon you have said

23   there is no compliance at all. We haven't received a document?


25   MR HARMON: Your Honour, I have not received a single document in support of your

26   order directing production of these documents. I would like to inform the Court, in

27   respect of the supoena that was directed to Mr Jelavic, that I have received from

28   Madam Vidovic proof of service on the Cabinet of Mr Jelavic, and I would like to offer

29   as part of the record these documents which Madam Vidovic has given to me and, I

30   would, after I made my submission, ask her to explain what is in these documents.

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1   But, if I could have the usher please step forward and I'll ask him to pass these

2   documents to you. One is a document dated 15 February and served on the Cabinet of

3   Mr Jelavic, if these could be made part of the Record, your Honour?


5   JUDGE MCDONALD: Is this proof of service of the order that was entered on 14

6   February?


8   MR HARMON: That's correct, your Honour. Madam Vidovic in just a moment, can

9   explain what those documents are. I have to describe for your Honour another

10   document, which I would also like to be admitted to the record. This is a document,

11   that is a memo drafted by Mr Jos Paepen ,whose the Head of our Office in Zagreb. It

12   is dated 19 February 1997 and it describes a meeting that Mr Paepen had this morning

13   with a Mr Lucic, who is the Deputy of Mr Jelavic and I will ask the usher please pass

14   a copy of this to you and this be made part of the record. The significance of this

15   document, your honour, is that in essence, Mr Jelavic says: contrary to the proof of

16   service that I have submitted in the previous submission, he says in this meeting with

17   Mr Paeopen that he only received a notice of your order on 18 February 1997 when he

18   was in Mostar. The third document that I would like to make part of the record is a

19   document that was provided to me this afternoon by Madam Vidovic. This is a

20   document, your Honour, that is signed by the Prime Minister of the Federation of

21   Bosnia Herzegovina directing Mr Jelavic to comply with this Court order. And if I can

22   ask the usher please tp provide this to you, your Honour. And then, your Honour, I

23   would ask that perhaps the floor be given to Madam Vidovic to further expand on

24   submission number 1 and submission number 3.


26   JUDGE MCDONALD: Madam Vidovic, would you like to respond?


28   MS VIDOVIC: Your Honour, after the conclusion of the Court Session of 14 February 1997,

29   I was handed a Court order to ensure compliance with the supoena deces tecum issued

30   on 15 January 1997 by you, addressed to Mr Ante Jelavic, as the representative of the

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1   successor of the custodian of records belonging to the Archives of Herzeg Bosna and

2   the military units of the Croatian Defence Council. The copies of the Court Order and

3   the supoena to Mr Jelavic I forwarded them on the same date, 14 February 1997, to the

4   Minister of Foreign Affairs of Bosnia Herzegovina with instructions to have them

5   forwarded to Mr Jelavic, the Minister of Defence of the Federation and to Mr Mato

6   Tadic, the Minister of Justice of the Federation of Bosnia Herzegovina, and to Mr

7   Bicakcic, the Prime Minister of the Federation of Bosnia Herzegovina. The Ministry of

8   Foreign Affairs of Bosnia Herzegovina in their letter of 14 February 1997 advised me

9   that the Court Orders were submitted to the above-mentioned addresses and I received

10   proof of service of the orders. Above all the proof of service to the Cabinet of Mr

11   Ante Jelavic, indicating clearly that the Cabinet received the Court of order on 15

12   February 1997 at 12:45 pm. The Cabinet of Mr Mato Tadic and Mr Bicakcic, on the

13   same day between

12   and 1pm.on the 15 February 1997. As additional proof of

14   service, the Ministry of Foreign Affairs also submitted to me a copy of the protocol

15   indicating that service was carried at the time I just mentioned. The same material that I

16   already submitted to Mr Mark Harmon, I can submit to the Trial Chamber if

17   necessary. Further more, I also received a letter from the Prime Minister of the

18   Federation, Mr Edhem Bicakcic , indicating that he issued an order to the Ministry

19   headed by Mr Jevolic asking him to meet fully the subpoena issued by the Trial

20   Chamber, and to take every measure necessary to have the said documents handed

21   over.


23   JUDGE MCDONALD: Ms Vidovic, are you, in your capacity as the, I am trying to think of

24   your exact title, liaison with the International Tribunal for Bosnia Herzegovina, are you

25   contesting the authority of the Tribunal to issue this subpoena duces tecum or the

26   order that was entered on February 14?


28   MS VIDOVIC: I do not contest this right of the Tribunal to issue such subpoena because

29   Bosnia Herzegovina has signed an agreement with the International Tribunal on

30   cooperation, and pursuant to that agreement, the International Tribunal has the right to

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1   issue such orders and subpoenas and I also think that it is in keeping with the Statute

2   of the International Tribunal.


4   JUDGE MCDONALD: Thank you Ms Vidovic. Mr Harmon, it appears then what needs to

5   be resolved, and if you wish Ms Vidovic, you may make those documents part of the

6   record and of course, Mr Harmon the request that you made to have these documents

7   part of the record, is granted. What remains then with respect to Bosnia Herzegovina I

8   gather, is sitting together and see if the document will be received.


10   MR HARMON: Your Honour, may I make a suggestion? An that is, given the proof of

11   service that I have submitted to Your Honour showing that the Cabinet of Mr Jelavic

12   received your order, earlier than is claimed in the memorandum of Mr Paepen. Mr

13   Paepen says Mr Jelavic's representative informed him received the order only

14   yesterday. To give Mr Jelavic the benefit of the doubt, I would request Your Honour,

15   that this Court issue a similar order that it issued on 14 February in the same terms,

16   and that it direct Mr Jelavic or his representative, his qualified representative, in the

17   same terms as your previous order, to appear before you on Monday 24 February at

18   9am to explain what efforts have been made to comply with the court order and to

19   furnish to this Court a schedule of compliance. The second request I make, Your

20   Honour, is in respect of the letter of Mr Paepen. While I firmly believe that the proper

21   service of documents of this Court is on the representative of Bosnia Herzegovina, Mr

22   Paepen's memo that I submitted to this Court, describes a fax number for Mr Jelavic

23   and my request, so there is no disagreement or misunderstanding or any question at all,

24   that the Registrar be directed to fax to that number a copy of any new order that you

25   issue, In addition to serving that same order on the Bosnian Herzegovinian Embassy.


27   JUDGE MCDONALD: This order should it not be directed to Bosnia Herzegovina and also

28   directed to Mr Jelavic?


30   MR HARMON: Yes, Your Honour, it should be.

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2   Judge McDonald: OK. And on the 24 February, perhaps we will begin at 10am instead of

3   9am..


5   MR. HARMON: That would be fine.


7   JUDGE MCDONALD: Today is 19, and that is how many business days from now. Let's

8   see. You see Mr Harmon there is no need to make an early setting if it is just for the

9   purpose of someone appearing saying Ôwe don't have them yet, but we are making a

10   good effort to locate the documents. So, I want to give sufficient time. Now I

11   understand the first subpoena, the subpoena deces tecum, was issued January, what

12   was it January 17, (Mr. Harmon: 15th, your Honour) 15. So, as you said at the last

13   hearing, if they have started gathering the materials, they would be in a position to

14   know whether they either have them or will not have them - or may make some sort of

15   an objection regarding producing them and you think that can be done by 24.


17   MR HARMON: I would think so, your Honour, given the fact that they have had well over

18   a month to engage in this exercise.


20   JUDGE MCDONALD: Ms Vidovic, how does that setting meet with your schedule -

21   setting that for February 19. I mean February 24, Monday?


23   MS VIDOVIC: It is allrigth with me.


25   JUDGE MCDONALD: That order will be entered. I'll talk a little bit more though about

26   my role in any future proceedings regarding the subpoenas duces tecum, but the order

27   will be entered by me.

28   OK. Does that conclude then the Prosecutor's submission regarding Bosnia Herzegovina?


30   MR HARMON: Yes,it does, your Honour.

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2   JUDGE MCDONALD: Thank you. Now, regarding the Republic of Croatia, as best as I

3   can recall I set up the background. Mr Salaj, I do have a written response, or a written

4   response, from Croatia that was signed by Mr Jelenic..(MR> SALAJ: Jelenic)

5   Would then you like to proceed to respond to the Prosecutor's position regarding the

6   Republic of Croatia and this matter?


8   MR. SALAJ: As I said initially, Your Honour, I would very much like to record with your

9   permission a prepared statement on the position of Croatia, but I would like to do it in

10   Croatian if possible.


12   JUDGE MCDONALD: You will then read the statement and, if necessary, it can be made

13   part of the record as well.


15   MR SALAJ: Your Honour, my appearance here today in the capacity of the representative

16   of the Republic of Croatia is an expression of respect to you personally and to the

17   Tribunal as a whole, and also an expression of the willingness on the part of the

18   Republic of Croatia to cooperate. The government of the Republic of Croatia is

19   surprised by the form of the subpoena of January 15, 1997. In our view, it is not

20   founded in the international law, nor on the statute and the rules of this Tribunal.

21   These instruments do not form a basis for decision whereby states and their

22   representatives could be issued subpoenas which are Court orders where compliance

23   must be done under pain of punishment. Had the Security Council intented to depart

24   so far from the international law, the provisions on subpoenas would be expressly

25   stipulated and not left to the interpretation of the Tribunal itself. Furthermore, the

26   Republic of Croatia as any other sovereign state determines itself who will represent it.

27   When it comes to the cooperation with the International Criminal Tribunal, it is the

28   Croatian governement. In other words, its office for cooperation with the Tribunal, so

29   that requests can be addressed only to these institutions, not to individual officials in

30   person. Since the Republic of Croatia cannot accept a subpoena as the manner of

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1   communicating of the Tribunal with sovereign states, it cannot consider Court orders

2   formulated in this manner. However, the Croation governement is aware of its

3   obligations to cooperate with the International Criminal Tribunal and it is prepared to

4   meet the requests pursuant to its constitutional act on cooperation with the Tribunal,

5   the statute and the rules of the Tribunal, the international law as well as the principles

6   recognized by the international community. Since it is aware of its obligations and

7   despite the fact that the Prosecutor has not tried to obtain the said documents in some

8   other acceptable manner, but has decided to issue a subpoena right away, the Republic

9   of Croatia has taken every step to avoid such a situation which is damaging to the

10   Republic of Croatia but also to the office of the Prosecutor and to the Tribunal itself.

11   The situation is particularly unacceptable to General Blaskic, a man who has

12   voluntarily placed himself at the disposal of the Tribunal and who has been waiting for

13   almost a year in detention for his trial to begin.


15   The Republic of Croatia has gone so far as to offer a comprise to the Prosecutor. If the

16   Prosecutor gives up the subpoena, Croatia will as soon as possible initiate the process

17   of meeting the requests. In this sense, we propose that Croatian experts meet as soon

18   as possible the representative of the Office of the Prosecutor to consider possibilities

19   in which this request can be met. The Office of the Prosecutor has rejected this

20   proposal. All this has led us to the conclusion that, in order to improve the

21   cooperation and the overall operation of the Tribunal, the issue whether subpoenas can

22   be issued to sovereign states should be brought up before the Security Council of the

23   United Nations for its consideration. Thank you very much, your Honour.


25   JUDGE MCDONALD: Mr Harmon, do you have anything in response?


27   MR HARMON: Thankyou, your Honour, and thank you Ambassador Salaj for expounding

28   your position. Your Honour, this subpoena that was issued by your Honour, was

29   issued on January 15 1997 and as I mentioned to you at the last hearing, I received no

30   communication whatsoever from the Government of Croatia, prior to receiving the

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1   written reply to the subpoena duces tecum that is dated the 15th of, that is date the

2   day of hearing that we had on the last occasion. What is significant about that

3   document, your Honour, is there is a statement contained in paragraph 9 of that

4   document, indicating that Croatia does in fact possessed documents that are relevant

5   and responsive to the Tribunal's request and to the Prosecutor's request and they have

6   made a determination, based on that paragraph, that those aren't relevant to General

7   Blaskic. The position of the Prosecutor clearly is, your Honour, that we are the party

8   who will decide the relevance of those particular documents not the Republic of

9   Croatia. Now, this Court can issue a subpoena, that it is legally binding and that the

10   Republic of Croatia is obligated to honour that Court order. If the Republic of Croatia

11   and, I want to clarify their position, if they are saying they have absolutely no

12   intention whatsoever of complying with this subpoena, period, then I will take one

13   view. If they are saying that this Court does not have the power or jurisdiction to issue

14   a subpoena, and they are prepared to brief that and present legal submissions to your

15   Honour, then I would take a different position. I would respectfully request, your

16   Honour, that there be clarification on that particular point. My view is, your Honour,

17   that if they are saying the latter, we are prepared to submit and suggest to your Honour

18   a briefing schedule to litigate the issue of the legality of the subpoena. My proposal, I

19   can submit some dates to your Honour, I would also add that parenthetically, your

20   Honour, that while the Republic of Croatia has repeatedly express their willingness to

21   comply with providing the Office of the Prosecutor with those documents, there is

22   nothing, pending any litigation that would prevent them from making compliance with

23   the items that are listed in the subpoena and which they admit, in their reply to the

24   subpoena duces tecum, that they possess. The fact that there is a legal dispute, should

25   not prevent them, in their good will to provide us with the documents that they say

26   they possess.


28   JUDGE MCDONALD: Mr Harmon, does that conclude your submission regarding that

29   point. Ambassador Salaj, do you wish to respond to that or stand by your statement

30   or what is your position?

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2   MR SALAJ: (JUDGE MCDONALD: Turn on your microphone, sir) Your Honour, I do

3   not think that I really can go beyond my brief and I think that it has been clear enough

4   even on the point raised by Mr Harmon. We believe that should the Security Council

5   of the United Nations have envisaged the possibility of subpoenas to the states, it

6   would have said so in its decision. That is the position of the Republic of Croatia.


8   JUDGE MCDONALD: Let me intercede if I may. The response that was received from the

9   Republic of Croatia on January 15 in paragraph 9, I don't know that it goes as far as

10   you may have been summarizing, Mr Harmon, but it says that: "In its request, the

11   Tribunal orders the provision of numerous documentation and information. The

12   number of information and documents is huge and surprising, due to the fact that some

13   of the requested documents do not even exist. Others do exist but cannot be related to

14   the case of General Blaskic. And yet others perhaps do exist, but are not in the

15   possession of the authorities of the Republic of Croatia, because they relate to

16   activities in Bosnia Herzegovina. So I don't know that if the position has been stated

17   that none of the documents are relevant. They really have three points: either that the

18   documents do not exist, that they cannot be related to the case of General Blaskic, and

19   then yet perhaps others do exist but are not in their possession. So, I don't know that

20   they are as firm as you might suggest regarding those documents. Even if they are in the

21   possession of Bosnia, not in the possession of the Republic of Croatia because they

22   relate to activities in Bosnia Herzegovina, there is a possibility that perhaps, with good

23   will and with a sincere effort that those documents could be located, even though they

24   may not be in the Republic of Croatia due to whatever relationship may exist between

25   the Republic of Croatia and other areas. So I don't know that they are taking that firm

26   position, but of course though Ambassador Salaj does say that the statute does not

27   allow for the Tribunal, one to issue subpoenas, and secondly does not allow for the

28   Tribunal to issue subpoenas directed to individuals within a state but instead should be

29   directed to the state itself. And those are very serious legal points that, my review of

30   the statute and of our rules would lead me to a different conclusion, but I haven't had

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1   the benefit of briefing, because article 18.2 of the statute says that the Tribunal, that

2   the Prosecutor shall have the power to question suspects, etc. and seek the assistance

3   of the state authorities concerned. And then in 19.2, of the statute, it says "upon

4   confirmation of an indictment, the judge may, at the request of the Prosecutor, issued

5   such orders and warrant for the arrest detention surrender or transfert of persons, and

6   any other order as maybe required for the conduct of the trial and subpoena duces

7   tecums are normally issued for the conduct of the trial and then of course in our rules

8   itself, Rule 54 of our rules of the Tribunal's rules provide that "a judge or a trial

9   chamber may issue orders, summons, subpoenas, warrants and transfert orders as

10   maybe necessary for the purpose of the investigations of preparation of the conduct of

11   the trial". So it's there in our rules, you would argue that somehow our rules go

12   beyond the statute and that would be a legal point, and you would suggest that we ask

13   the Security Council to resolve this. The Security Council is very busy in our creation.

14   We were created as an independent body and I don't know that the Security Council is

15   the appropriate body to interpret our laws, our rules of procedure. Perhaps you could

16   look through the submissions that were made by the various states when the Tribunal

17   was created and get some guidance. I don't know whether we want to ask the Security

18   Council for that. It seems to me that we need to solve a problem, Mr Harmon, and

19   perhaps we have a solution on the table so to speak. Do we not have a solution?


21   MR HARMON: One solution, your Honour, is to brief the legal point on the schedule that I

22   am prepared to suggest. (JUDGE MCDONALD: OK) And certainly the Court,

23   your Honour, will prepare to litigate that issue. We certainly aren't prepared to wait

24   for the Security Council to resolve this issue. The compromise, your Honour, that has

25   been suggested is a compromise that was suggested - I understand I wasn't party to

26   this conversation at all - may have been suggested yesterday. But we have been at this

27   effort, your Honour, to secure relevant documents for over a month. We have a trial

28   date that will be coming up very shortly. That is important Your Honour, that the

29   Republic of Croatia fulfill its obligation to cooperate with the Tribunal under article


30   And it should fulfill that obligation, your Honour, by producing the documents that are

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1   relevant, that have been identified in the subpoena and that we havebeen anxiously

2   awaiting since January 15. I think the answer, with all due respect to Mr Salaj and to

3   the Republic of Croatia, that we will not respond, we will not litigate, we will not

4   produce the document, is not an adequate response from our point of view.


6   JUDGE MCDONALD: The agreement between the Republic of Croatia and the Tribunal

7   provides in article 3 that requests for cooperation or enforcement of a decision of the

8   Tribunal shall be forwarded to the Government of the Republic of Croatia. You

9   understand that the subpoena duces tecum was forwarded to the Republic of Croatia. It

10   was also forwarded to the Minister of Defence. Yes, Ambassador Salaj


12   MR SALAJ: Your Honour, it should be very much stressed that I am talking about

13   subpoenas directed to Governments. We do not question a supoenas to individual

14   citizens or persons whom the Tribunal is interested in, but not to governments and its

15   officials. That is a basic difference, I think, for us and we stand there. I cannot

16   understand, I can't go into pleading any further our cause, but I am very surprised by

17   what the Prosecution says here about our not cooperating. We have offered our full

18   cooperation but some others statute and the one that has been evoked.


20   JUDGE MCDONALD: Then in the agreement it provides that the request for cooperation

21   or enforcement of a decision of the Tribunal shall be granted by the Government of the

22   Republic of Croatia, if the request or decision is founded on appropriate provisions of

23   the statute and rules of procedure in evidence of the Tribunal. If I understand what you

24   are saying is, that even if the subpoena duces tecum was never even addressed to the

25   Minister of Defence, it had just been addressed to the Republic of Croatia, if the

26   Republic considers that subpoenas duces tecum are not appropriate, and are not

27   allowed under the statute and rules, then it seems to me that the issue that you raised

28   about it, should not be addressed to individuals, is really a non issue because if you

29   would not have passed it on to the Authority if you felt that the Tribunal was without

30   authority. Do you understand what I am saying?

Page 16


2   MR SALAJ: Not quite. It is a long reasoning, but I missed it somewhere in the middle, I am

3   terribly sorry. Some how, I hope that I made the opposition clear. Should, in order for

4   Court to be able to issue subpoenas to Government, this possibility should have been

5   mentioned in the decision of the Security Council. That is our position very simply.

6   And really as a response to your question, if I recall it, if it was not directed to Mr

7   Susak..., but to the Republic of Croatia, we could not serve it because we do not

8   respond to subpoenas.


10   JUDGE MCDONALD: But I understand that you are willing to make an accomodation in

11   this instance, notwithstanding the request being made by subponea to provide the

12   document. How long do you anticipate you would need to complete the review of the

13   request of the documents, if you have began and provide those that you consider

14   relevant to the Prosecution? How much time do you need?


16   MR SALAJ: Your Honour, I really can't give you a precise answer for the simple reason

17   that this document that we have received really is not a very simple document, it is an

18   extremely wide ranging set of requests. What we would have tried to suggest to the

19   Office of the Prosecutor, is that their people and ours sit down and see in a very simple

20   manner. We have not received any other request in this matter, other than just being

21   served a subponea. And permit me to say, this is somewhat unusual way of opening or

22   trying to get what you need of a government.


24   JUDGE MCDONALD: When would you be prepared to sit down with the Prosecutor and a

25   representative who has sufficient knowledge of the documents to be familiar with

26   them? When would that person be willing to sit down with the Prosecutor?


28   MR SALAJ: We have said, the sooner the better, and we would even suggest that perhaps

29   these discussions be held in Zagreb because they are so many different materials that

30   perhaps they should, you know, they would be discussing with several people.

Page 17


2   JUDGE MCDONALD: Monday, how about Monday?


4   MR SALAJ: I can't.......


6   JUDGE MCDONALD: See I can't.... You know the position that I am in. I either have to

7   act and rule according to the law or I can attempt to reach a compromise with the

8   parties, trying to get to where you want to get to without our making a legal decision. I

9   am prepared to make a legal decision because I have reviewed the authorities myself.

10   But I am trying as best as I can to reach a compromise. Monday ? If they are in

11   Zagreb, would you sit down or have the person who is familiar with these documents

12   sit down with the Prosecution? That is an easy solution I think.


14   MR SALAJ: Madame, I am not trying to escape committing myself. It is only the problem

15   of, it is really posing a pratical problem because that is something we have been

16   proposing yesterday and I was not given a positive reply by the Office of the

17   Prosecutor and I never pursued it any further with Zagreb for simple reasons that it

18   was not available to us. I would have to contact Zagreb and.....


20   JUDGE MCDONALD: How long would it take you today to contact Zagreb to get a

21   response?


23   MR SALAJ: I don't know. It is. How long time do governements take to get a proper

24   response from their bureaucracy?


26   JUDGE MCDONALD: Well, I don't know. I don't know your bureaucracy and some are

27   different than others depending on what their goals are. But it seems to me that the

28   Minister of Defence, from what I heard about the documents that have been asked for

29   and his role, if he is available near a telephone, he could give a response. Now if there

30   are other requirements that you would have to go through, to even determine whether

Page 18

1   you could sit down, then I am misunderstanding you. Because as I understand, you are

2   offering to sit down with the Prosecutor and go over this request.


4   MR SALAJ: Yes, exactly.


6   JUDGE MCDONALD: OK Now what I need from you is a date when you are willing to do

7   that. And if I don't get a date, then I don't know what to do except take this legal issue

8   right on, which is fine with me.


10   MR SALAJ: Well, I don't know, my suggestion, I think that it should be workable that a

11   representative of the Office of the Prosecutor visits Zagreb next week for example.


13   JUDGE MCDONALD: Let me suggest this and sort of thinking out loud. If the Prosecutor

14   can report back and if Mr Salaj, not necessarily you, maybe Mr Meijic, a

15   representative, on Monday to report back, either report back in person or advise by

16   letter that we would receive on the 24th, Monday 24, setting a specific date for the

17   appropriate representatives of the Republic of Croatia to sit with the Prosecutor and

18   go over the request for documents. So that you would report back by Monday, 24

19   February, providing a specific date, not as soon as possible or anything like that - but a

20   specific date. Is this acceptable? Can you do that?


22   MR SALAJ: Yes, I hope so. These things are not entirely under my control, but I will do

23   my best to ensure that it will happen.


25   JUDGE MCDONALD: I know very well that orders can be sent to the government of

26   Croatia and if subpoenas fit within there, I don't want to put myself in a position of

27   ordering the Republic of Croatia to report back on 24th. I will accept a response from

28   you if you will tell me that you will do that. You can report back on 24th with a

29   specific date, can't you?


Page 19

1   Mr SALAJ: Well Madame, I hope that we understand each other. This is not under the

2   statute of subpoena, but rather of some kind of separate order that you would issue.


4   JUDGE MCDONALD: I don't want to enter an order. What I want you to do is to tell me

5   that the compromise that you are proposing is to have the appropriate representatives

6   that is persons who knowledge of the document to sit with the Prosecutor, go over the

7   request, and make a determination as to which one they will give, either yes, or no, yes,

8   no. In this way, we put beyond part of the problem and that is all what I want from

9   you.


11   Mr SALAJ: This discussion cannot I am afraid, take place under the statute of subponea.


13   JUDGE MCDONALD: What are you saying? I am not asking for it to take place under the

14   statute. This is a compromise. I can suspend this order that I have entered, pending a

15   report back from you on Monday 24 February advising of the date on which this

16   meeting will take place and I will suspend the order. And then when I suspend the

17   order, what happens is that the good will of Croatia is motivating this meeting.


19   Mr SALAJ: You see, it puts me in an unclear position as to what to report to Zagreb, as to

20   where we stand in this particular issue. We would like to cooperate, I have maintained

21   it now several times, and will be as practical as possible but there cannot be a shadow

22   or doubt that this is made under any kind of threat.


24   JUDGE MCDONALD: Except that I am not a diplomat Mr Salaj. I am just a judge and I

25   just go by the rules so I am not really in a position to talk about that. What I am

26   attempting to do is to reach a resolution of this issue. I truly am, because if we don't

27   move forward with real cooperation, this Tribunal will be crippled. We have 74

28   indictees, 7 in custody, 2 have been turned over by Bosnia Herzegovina and if we do

29   not get cooperation from countries, not a willingness to cooperate or a desire to

30   cooperate, but actual cooperation, then we all fail. And we all fail together, that is you,

Page 20

1   me, everyone. So rather than deal with technicalities, I am telling you that if I enter an

2   order suspending this order and stating that it is suspended, that the Republic of

3   Croatia has challenged the legality of it; however the Republic of Croatia is willing as it

4   has always been willing - if that is the language you want me to put in - to cooperate

5   and as evidence of this cooperation, they will meet with the Prosecution on a particular

6   date to discuss the request. Now the Prosecutor does not want that compromise, and I

7   am suggesting it only as a way to reach the bottom line, but it is really out of my

8   province. Because my province is really just to rule on matters of law and I am ready

9   to rule, really. I don't need briefing. So this is what I am suggesting that you do.


11   Mr SALAJ: Yes. I need time to consider the proposition.


13   JUDGE MCDONALD: We stand in recess. How long do you need?


15   Mr SALAJ: Half an hour.


17   JUDGE MCDONALD: Half an hour. and you understand then the parameters I am talking

18   about. Do you not?


20   Mr SALAJ: Yes, the problem would not rise at all if somehow the subponea question was

21   quashed and we had a complete situation of..


23   JUDGE MCDONALD: I cannot quash the subponea, because then I do is that I give up the

24   authority that I have already assumed by assigning the subponea and the order. I

25   cannot quash it, but I can certainly suspend its operation, recognizing the response of

26   Croatia that it is illegal, for the reasons that you have stated and, therefore suspending

27   its operation incoperating... you know as we discussed the cooperation. I think that's

28   pretty reasonable. I am not a diplomat, it sounds like a pretty good arrangement.


Page 21

1   Mr SALAJ: Well being a.. It is always an advantage to be a lady and a judge. Diplomats are

2   very weird and formalistic people.


4   JUDGE MCDONALD: We will stand in recess for thirty minutes and keep in mind that

5   what we want to do is to get to the bottom of this problem. And I understand your

6   position very well and I don't want to put you in a difficult position but understand

7   the position that I have as well. What we want to do is to get to the bottom of

8   obtaining this document. And we will stand in recess for thirty minutes.


10   (Court stands in recess for 30 minutes)


12   JUDGE MCDONALD: Ambassador Salaj. Have you been able to make the necessary

13   arrangements?


15   Mr SALAJ: Well, Your Honour, not all the arrangements that I would have liked to make, it

16   is a very short time. I think, however, that we could proceed in a manner which you

17   have suggested, but we have a few simple reservations which I hope you will find

18   agreeable. One of them is that I repeat that the Republic of Croatia does not accept

19   subponeas to governments, but you have given us assurances that you have taken note

20   of the position of Croatia about that. We would like it to be understood that a meeting

21   of Croatian experts and representatives of the Prosecutor's Office, will take place only

22   as an expresssion of the Croatian wish to cooperate with the ICTY. And we would

23   appreciate that the Office of the Prosecutor provides the Croatian authorities with the

24   list of requested documents but not a titulated subponeas but a text that really would

25   retake what they would like to see.


27   JUDGE MCDONALD: Yes, in a form of letter for example.


29   MR SALAJ....: Yes.


Page 22



3   MR. SALAJ: And I have really not been able to ascertain the exact time of when this

4   meeting could take place but I would inform you as you suggested, on Monday about

5   that.


7   JUDGE MCDONALD: What I suggested on Monday was to inform me of the exact date.


9   MR SALAJ: Yes, that is what I proposed.


11   JUDGE MCDONALD: Inform me on February 24 of the exact date for this meeting.


13   MR. SALAJ: Yes


15   JUDGE MCDONALD: Does that conclude your remarks Mr Salaj. Thank you. Mr

16   Harmon?


18   MR HARMON: Your Honour, I will be brief but to the point. Since January 15, clearly we

19   have been requesting these documents that we believe to be relevant and necessary and

20   would be helpful to the Trial Chamber in deciding the issues that we will be facing in

21   the trial of General Blaskic. We are genuinely interested in the production of those

22   documents.


24   I have absolutely no problem with providing the Republic of Croatia with an other version of

25   the substance of what is contained in that subponea, because I view the subponea as a

26   request for assistance from the Croatian government directed through this Court.

27   However, I will be glad to prepare a letter today, which I can serve on Ambassador

28   Salaj today, with a request for assistance in the form that we have requested since

29   January 15.


Page 23

1   JUDGE MCDONALD: The request for assistance - I think what Ambassador Salaj is

2   suggesting would just be a letter, and it will be decided to whom it will be directed...


4   MR SALAJ.....: - inaudible -


6   MR HARMON: Now Your Honour, what I wish to avoid, since I have a trial date, that will

7   be coming up very shortly, is to engage in protracted negociations on modalities of how

8   and under what circumstances, documents could be seen and reviewed. What I need

9   very frankly, and what I requested for over a month, are the documents themselves and

10   I think it is absolutely imperative that there be meaningful production if we are to

11   engage in this step. Otherwise there is valuable time lost and we are engaged in empty

12   rhetoric. My own view, Your Honour, is that I would request that there be a hearing

13   on 28 February at 2:00 pm before Your Honour, in which the Prosecutor can report

14   whether there has been meaningful production of documents that will be contained in

15   our request for assistance. In the event there has not,your Honour, we will be making

16   an appropriate request in respect of lifting of the subponea, lifting the suspension of

17   the subponea. Your Honour, there is one additional request and that is: if we wait until

18   Feb, then we protacted the process unnecessarily and it seems to me that perhaps,

19   Ambassador Salaj could report back earlier than next Monday on where and when the

20   Prosecutor's office could meet with the representative of the Croatian governement.

21   My suggestion, Your Honour, would be that the Croatian Ambassador could report to this

22   Court on Friday, this Friday, on where and when the meeting could take place. That

23   would permit Mr Salaj more than ample time to contact his government and confirm

24   that his government is prepared to engage in a meaningful compromise.


26   JUDGE MCDONALD: Ambassador Salaj has made that effort and 24 February as his

27   earliest day. Is that correct Ambassador Salaj?


29   MR SALAJ: Yes Your Honour. Something that amazes me really is that the Prosecutor is in

30   such a hurry after 16 months that he has indicted a person. We are talking about

Page 24

1   material which should, theoretically, be truck loads and truck loads of paper, because

2   in all bureaucracies and even Croatia, there are papers and it is a highly technical job to

3   discerne what, in all that the Prosecution has required, is sensible thing to ask. I will be

4   very plain on that.


6   JUDGE MCDONALD: Two questions really. Mr Harmon, how would you envision this

7   hearing on 28 Feb. to proceed, you said for the Prosecutor to report as to meaningful

8   production, would that be an ex-parte, would you just report and advise a judge as

9   what has been produced?


11   MR HARMON: Your Honour, I would also request a representative of the Republic of

12   Croatia be present as well, if there is a dispute as to our report, I would invite the

13   Republic of Croatia to take issue with our presentation at that time.


15   JUDGE MCDONALD: Mr Ambassodor Salaj


17   MR SALAJ: Not being a legal expert, I can only offer you my personal view that the

18   material as such is going to take some time and I think the joint effort by the

19   Prosecution, if the Prosecution wants to really to get whatever documents are

20   necessary and we can give them in time. It seems to me that we are rushing and in a

21   way which as I say from the beginning was not acceptable to the Republic of Croatia.

22   The rushing without having tested her willingness to assist really in this case.


24   JUDGE MCDONALD: Testing whose willingness?


26   MR. SALAJ: I sorry


28   JUDGE MCDONALD: Oh, Testing whose willingness. You're saying because the

29   subpoena was issued without the willingness


Page 25

1   MR SALAJ: Croatia's willingness to assist


3   JUDGE MCDONALD: I don't know what was done before the subpoena, let me just

4   comment on this. The meeting that would take place, you are then to advise the Court

5   on Feb 24 of the exact date of the meeting, now what I don't want to happen is that the

6   notice will say, well the meeting will take place soon, or the meeting will take place in

7   April.or May, or June. It has to be done with some dispatch. What I suggest is that

8   you at least have a meeting, so that even if, when you return to Croatia, I mean when

9   you contact the appropriate representatives in Croatia, it is determined that there are

10   truck loads of material and we don't know when we can meet to provide them in the

11   appropriate order, or we need to go through this material to see what needs to be

12   provided. That to be avoided, and that instead there be a meeting between the

13   appropriate representatives and the Prosecutor, regardless of whether you have truck

14   loads or regardless whether you have one or two documents - there be a meeting on a

15   specific date to discuss that. Can we agree on that?


17   MR SALAJ: Oh yes. That is exactly my meaning, but, you see, the problem that I have

18   with the date of

28   is really that this would mean, that they would not only meet but

19   they would also have resolved whatever sort of thorny questions there may be and I

20   am really thinking of a joint effort.


22   JUDGE MCDONALD: OK. Your comment really goes to whether or not we should not

23   have a hearing on 28 Feb. And what I am concerned about is that when you report back

24   on 24, that you give a specific date, so that the meeting can be held. Now it seems to

25   me that the meeting could be held within a week's time if you report back on

24  ,

26   certainly a meeting be arranged between the two sometime during that week?


28   MR. SALAJ: I certainly hope so. But what I have seen I expect them not just to meet and

29   say hello to each other but rather to have very substantive meetings.


Page 26

1   Judge McDonald: OK. And what I am suggesting is that they have a meeting early that

2   week, even if it is necessary to say hello and then to begin to explore at the very least,

3   the scope of this material that you say it exists and I don't want the first meeting to be

4   delayed because of the volume of the material, so I would suggest that a meeting be held

5   during that week of 24, so that you can set some preliminary rules, perhaps discuss

6   informally the material that is available, that kind of thing. There shouldn't be a

7   problem with that, as far as I see it. It should be more than a meeting to say hello, but

8   still one to talk about how we are going to produce these records, even if an other

9   meeting then has to be held to go thru the records, whatever is necessary. So I hope

10   that you can set that meeting by February 28.


12   MR. SALAJ: Yes, I think we completely agree on that.


14   JUDGE MCDONALD: OK. So you set that day for the first meeting before the end of

15   February 28. Now as far as the Prosecutor then reporting back, either alone or with a

16   representative of Croatia, at that point we will be moving into an area where a judge

17   will have to consider, hopefully, whether the documents that have been produced, and I

18   am hoping that some will be produced, I have all faith that some will be produced

19   during that first meeting. Then though, a Judge is going to have to consider whether or

20   not these documents or some of these documents are as you said, Mr Harmon, helpful

21   to the Trial Chamber in resolving the issues of Blaskic. Now under Rule 54, of course

22   of our rules, I signed the subpoena and I am perfectly authorized to conduct this

23   hearing to this point, but I would suggest that thereafter these matters regarding the

24   content of the material that is provided and the relevance, etc.... be handled by the Trial

25   Chamber that is trying the case and that would be either Judge Jorda, whose is the

26   Presiding Judge, or the entire Trial Chamber. I am not in a position to make a

27   determination as to whether, if it is contested, that there are certain documents that are

28   relevant to or helpful to resolving the issue of the Blaskic trial, because that is not my

29   trial. And I think at that point, the other Trial Chamber should take over or or one of

30   the other Judges from the Trial Chamber, probably the President Judge. So, I will then

Page 27

1   carry this through to this point, but then once the exchange begins - and I am very

2   hopeful that there will be an exchange - that Judge Jorda handle the matter of whether

3   or not there has been substantial compliance, whether the documents are relevant, some

4   maybe, some may not to the issue of Blaskic trial, because that is not my trial.


6   So, as far as a hearing on 28 Feb. I will at this time deny that request. I expect that the

7   parties will meet the week of 24, you will advise Ambassador Salaj me of the exact date

8   of the meeting but I expect it will be 28 the preliminary meeting if that Ôs all it is, and

9   then when you begin the exchange process, it seems to me that it will then be handled

10   by the other Trial Chamber because I am not the appropriate judge to resolve that

11   issue. I will suspend the order of Feb 14 that I entered to enssure compliance with the

12   subpoena duces tecum. I will in that order note that the Republic of Croatia has

13   challenged the legality of it, and that in a cooperative spirit, in its willingness to

14   cooperate, they are willing to work informally with the Prosecutor to provide

15   documents that have been requested. We also though need to resolve the matter

16   regarding Bosnia Herzegovina and you had indicated in respect to that, Mr Harmon,

17   that an order be entered setting a hearing for February 24 at 2:00 pm. Is that correct?


19   MR HARMON At 10.00 o'clock your Honour.


21   JUDGE MCDONALD: Is that correct?


23   MR HARMON: Yes, Your Honour. I had requested that you enter an order similar to the

24   order you entered 14 February in respect of Mr Jelavic and Bosnia Herzegovina and

25   that you direct Mr Jelavic or his representative to appear before you on 24 February at

26   am. It also requested, your Honour, that the Registrar, supoena, not subpoena, I

27   am sorry, fax to Mr Jelavic at the telephone number that is contained in the

28   memorandum of Mr Paepen a copy of your order as well as serve a copy of the new

29   order on Bosnia Herzegovina Embassy.


Page 28

1   JUDGE MCDONALD: An order will be entered. The exact content of the order, of course,

2   will await my drafting of it but we will set that date, Ms. Vidovic for Feb 24 at

3   10:00am and the order should be issued today or tomorrow. I do believe that is all what

4   we need to resolve today. Is that correct Mr Harmon?


6   MR HARMON: Yes Your Honour.


8   JUDGE MCDONALD: Is there anything else, Ambassador Salaj? Ms Vidovic? Is there

9   anything further?


11   (Both Answer in the negative)


13   JUDGE MCDONALD: Thank you everyone for coming and working in this cooperative

14   spirit and I except it will be very successful..