35 (session opened at 10.00)
36 PRESIDING JUDGE: This is case no. IT-95-14-PT on 24th February 1997. I signed an order
37 directing that Mr. Ante Jelavic appear personally before the Tribunal on 28 February at 10.00 am to
38 answer questions relevant to the production of subpoenaed documents and if Mr. Jelavic did not
1 appear on that date he was to send a representative who was familiar with the location and contents
2 of the documents or at least the central archive of the Ministry of Defence of the Croatian
3 community of Herzeg Bosna who was able to describe in detail what steps had been taken to
4 comply with the subpoena duces tecum since it was received. Is the prosecution ready to proceed?
5 MR. HARMON: Good morning, your Honour, we are ready to proceed. My name is Mark Harmon
6 and I will be representing the Prosecutor's office this morning.
7 PRESIDING JUDGE: May I have other appearances please? Madam Vidovic
8 MS. VIDOVIC: Good morning, your Honour. My name is Vashija Vidovic Minister counsellor with
9 the Embassy of Bosnia Herzegovina representing Bosnia Herzegovina at this hearing.
10 PRESIDING JUDGE: Thank you. Additional appearances?
11 MS. GLUMAC: I'm Jadranka Slokovi} GLUMAC I'm a lawyer from Zagreb and I'm the legal
12 representative of Mr. Jelavic and I have also been authorised by Mr. Jelavic to clarify some issues
13 related to the said documents as his representative.
14 PRESIDING JUDGE: Are you familiar with the documents Ms. GLUMAC. Let me put it this way.
15 Rather than familiar with the documents are you familiar with the central archive so that you can
16 tell the Tribunal whether the documents exit, which documents exist.
17 MS. GLUMAC: I do possess some information about that and I will relay that information on behalf of
18 Mr. Jelavic or rather the Ministry of Defence. I do not have full proposal, full information but I do
19 have some information about that.
20 PRESIDING JUDGE: Thank you. We'll see as we proceed along what information you have and
21 whether Mr. Jelavic has complied with the order by you coming here. Thank you. Mr. Harmon
22 MR. HARMON: Your Honour, since the last hearing I can report to the court that we have not received
23 a single document in response to the subpoena duces tecum. And I have a series of exhibits which
24 I would like to present to the court. if I could be permitted to do so.
25 PRESIDING JUDGE: Yes, you may.
26 MR. HARMON: Your Honour, the first exhibit, filed exhibit, your Honour, exhibit 1 is a letter which is
27 directed to me from Judge Vidovic informing me of the steps that she took after your Honour
28 issued a court order on 24th February 1997, that would be my exhibit no. 1. Exhibits 2, 3, 4 and
29 are exhibits which show proof of service, including exhibit no. 5, I sorry, exhibit no. 4 which
30 shows that Mr. Jelavic was served with your order on 25th February 1997.
31 PRESIDING JUDGE: You've shown those to Ms. GLUMAC.
32 MR. HARMON: Your Honour, I had no information what so ever that there was going to be an
33 appearance by a representative of Mr. Jelavic today, so I am certainly happy to recess at some point
34 and make copies available to her. But I didn't anticipate any appearance today by her.
35 PRESIDING JUDGE: Are you going to make reference to these exhibits at this moment or can we just
36 have them copied and Ms. GLUMAC receive a copy. Ms. GLUMAC do you a copy of the letter
37 from Judge Vidovic.
38 MS. GLUMAC: Yes, I do
1 MR. HARMON: Your Honour, I have a series of other exhibits, but if your Honour would like to take a
2 moment to study those before I announce the other exhibits.
3 PRESIDING JUDGE: Many of them are in Serbo Croat and I'm trying but I am not at that point yet.
4 Let's have a copy made of these and then we provide them to Ms. GLUMAC.
5 MR. HARMON: Should I proceed with identifying the next exhibit your Honour
6 PRESIDING JUDGE: Yes
7 MR. HARMON: The next exhibit, your Honour, exhibit 6 would be a letter directed to your Honour
8 from the Prime Minister informing you of steps that he has taken . Your Honour, I have had this
9 document since late yesterday and I have had this document submitted to the translation section and
10 I have an official translation of this document. So this would be item no. 6.
11 PRESIDING JUDGE: You may proceed.
12 MR. HARMON: Item no. 7, your Honour, is a letter date 18 February 1997 and it is to Mr. Jelavic
13 from the Prime Minister requesting that Mr. Jelavic comply with the subpoena duces tecum.
14 Again, you Honour, I have had this document submitted to translation and I have an official
15 translation of the document attached.
16 Item no. 8, your Honour, is a reply from Mr. Jelavic dated 19 February 1997 to the Prime Minister. I
17 have a copy of an official translation of that document attached to the original as well. That would
18 be the Prosecutor's exhibit no. 8.
19 PRESIDING JUDGE: And that is a, Mr Harmon would you repeat that for me, please.
20 MR. HARMON; Yes, your Honour, item no. 8 is a reply to the prime Minister by Mr. Jelavic. It's a
21 reply to the document no, exhibit no. 7 and the date on the reply is 19 February 1997.
22 Prosecutor's exhibit no. 9, your Honour, is a letter dated 21 February, 1997 to Mr. Jelavic from the
23 Prime Minister requesting that he appear at the hearing today to provide answers concerning the
24 failure to comply with the subpoena duces tecum or to designate a representative who is familiar
25 with the location and the contents of the archives and who will be able to explain what steps have
26 been taken to comply with this subpoena duces tecum. I have also submitted this document to
27 translation and there's an official translation of this document attached.
28 PRESIDING JUDGE: Does that complete the exhibits that you wish to offer.
29 MR. HARMON: I have two more exhibits, your Honour. Exhibit no. 10, your Honour, is the reply of
30 Mr. Jelavic to the Prime Minister. It is dated 21 February 1997 claiming he is not the legal
31 successor to the archives and requesting that a letter be dispatched to your Honour requesting the
32 suspension of your order of 20 February 1997. I have had this document submitted to translation
33 and I have an official translation of the document attached.
34 The last item I would submit, your Honour, exhibit no. 11, is a letter of 24 February 1997 to Mr. Jelavic
35 from the Prime Minister informing him that the archive of the BH Federation is the legal successor
36 of the HZ HB archive, but that this entity has not started its work and that the documents of the HZ
37 HB archive have not been turned over to the archive of the BH Federation and its also asks that
38 Mr. Jelavic comply with your order of the 20 February I have also submitted this to translation
39 and I have attached a copy of the official translation to this document as well.
1 That concludes my submissions, your Honour.
2 PRESIDING JUDGE: Ms. GLUMAC, I imagine you perhaps have copies of some of these documents
3 but I am not certain that you have copies of all of them, so if you would like we may stand in
4 recess so
5 that copies may be made and provided to you. Is that how you would like to proceed?
6 MS. GLUMAC: Your Honour, I have most of these documents. I have them in my file here and some
7 that I heard of now, I don't think they are so important for us that copies should be made and an
8 adjournment made.
9 PRESIDING JUDGE: Mr. Harmon, do you have anything else to add?
10 MR. HARMON: I have nothing else to add, your Honour.
11 PRESIDING JUDGE: Judge Vidovic, do you wish to proceed at this time or should we hear from Ms.
12 GLUMAC first?
13 MS. VIDOVIC: Your honour, I suggest that we first hear Ms. GLUMAC.
14 PRESIDING JUDGE: Ms. GLUMAC
15 MS. GLUMAC: Your Honour, first of all I would like to mention some of the circumstances which
16 have led this subpoena that you issued, that it has not been complied with on time. First of all, the
17 war archive of the Croatian community of Herzeg Bosna that these documents that you requested
18 to be submitted to the Tribunal form an integral part of archive. It was controlled or the person in
19 charge of it was the Director who died. And we can provide documents of that. And after his
20 death another person has not been appointed to that position. This archive has also been
21 terminated when all the Herzeg Bosna institutions were terminated. And the hand over of that
22 archive to some other institution of government has not been made. And as far as we know that
23 archive there was information of civilian character as well as information of military character. SO
24 we have information that this archive contained documents and we also have document pertaining
25 to that and you order it to be translated and you can see that this was not an official archive but an
26 archive that contained all the documents pertaining to the war in Herzeg Bosna. In other words, it
27 was an archive that followed the economy, science, cultures, sport and of course the military
28 issues. I would like to submit for the record the decision on establishing the war archive of the
29 Croatian community of Herzeg Bosna and I would like to ask you if it can be translated and present
30 to you right now so that you can see what I am talking about in fact. The Minister of Defence of
31 Herzeg Bosna never played an important part in that archive since the archive was not established
32 as part of the Ministry. The archive was an independent body, it was a government service, and
33 the director of the archive was appointed by the Government of Herzeg Bosna. Is it necessary for
34 me to submit this document to you now?
35 PRESIDING JUDGE: Well yes, you may and we will make it exhibit A or 1 however you want to for
36 Mr. Jelavic. Tell me once more Ms. GLUMAC about this decision. You say that this was a
37 decision establishing the central archive.
38 MS. GLUMAC: I'm sorry. The decision was made pursuant, actually the Government of the Croatian
39 Community of Herzeg Bosna made the decision to establish this archive. This means that the
1 archive was never part of the Ministry of Defence. The Ministry of Defence was not in charge of
2 the archive. A civilian was at the head of the archive. It was managed by a civilian and part of the
3 archive was of a civilian character. The Director was also appointed by the Government of Herzeg
4 Bosna not by the Ministry, or in other words the Council of Defence. The HVO was only
5 consulted when decision were made on who was to manage the archive. This archive was not the
6 archive of the Ministry of Defence but of the entire community at that time, SO the Defence
7 Ministry of the Federation of Bosnia Herzegovina cannot be the legal successor of the archive.
8 The archive was supposed to be pursuant to a decision mentioned here in these letters. It was
9 supposed to be succeeded by the archive of the Federation of Bosnia Herzegovina, established
10 pursuant to a law. The law on Ministerial Bodies and Administrative Body passed after the Dayton
11 agreement in order to facilitate its implementation. Only that archive would be able to distinguish
12 between the civilian and the military documents in the archive, which was formed in Herzeg
13 Bosna. And to process the military information and to pass it on to the Ministry of Defence. This
14 archive has been constituted, established a law on its work has been passed, however the Director
15 has not been appointed yet and it causes additional problems. Since Mr. Jelavic has at no time
16 been involved with this archive and he is not familiar with it because in his work he didn't have
17 anything to with that archive, he is not able to tell you with any precision what is there. On the
18 other hand, the Ministry of Defence cannot be the legal successor of the archive and the archive of
19 Herzeg Bosna is not the archive of the Ministry of Defence, but of the Community of Herzeg
20 Bosna which existed at the time. In light of all of the above, in light of the fact that Mr. Jelavic
21 never discharged any function related to that archive, I think that it would be good as Mr. Jelavic
22 requested several times so far to request from the competent authorities from the Federation of
23 Bosnia Herzegovina and Bosnia Herzegovina the top authorities, since we are dealing with the co-
24 operation with the International Tribunal to ask them to appoint a competent person who will then
25 submit these documents to the Tribunal. Mr. Jelavic thinks that the letter from the Prime Minister
26 quoted by the Prosecutor today is not enough for him to take on without any authorisation
27 documents from the archive and to submit them here. I think this is the problem behind his actions
28 and he is expecting the Ministerial Council or the Presidency to give him authorisation to provide
29 these documents.
30 PRESIDING JUDGE: Why is Mr. Jelavic not here?
31 MS. GLUMAC: Mr. Jelavic is prepared to come here before the Tribunal, but he feels that before that
32 these issues should be resolved. The question whether he is authorised to do these things because
33 this whole thing was based on wrong premises. You claim that this is a military archive and that is
34 the archive of then Ministry of Defence and this has led to him , to the Minister of Defence, being
35 declared the legal successor. He wants this issue of competence, who is competent to take over
36 this archive and submit those documents to be settled. Because the archive has never been
37 formally handed over to anyone's authority.
38 PRESIDING JUDGE: Does Mr. Jelavic
1 MS. GLUMAC: This is a very important matter, in particular, because any handle of documents
2 especially military document is such a weighty matter that it reaches the highest level, it jeopardises
3 the co-operation with the tribunal, because some of the documents may jeopardise state security ,
4 he feels that he should have authorisation since we are dealing with two entities, he feels that he
5 should have the authority from a higher level, from the Presidency of from the Ministerial Council.
6 PRESIDING JUDGE: He feels that it would be the Presidency of the Federation of Bosnia
7 Herzegovina, who should direct him?
8 MS. GLUMAC: That should be a body which would determine whether he is authorised to take this
9 action and to submit documents in this case.
10 PRESIDING JUDGE: Be the Presidency of the Federation of Bosnia Herzegovina? Is that correct?
11 MS. GLUMAC: That one or the Ministerial Council.
12 PRESIDING JUDGE: And can you give me the name, the names of the Presidency of the Federation of
13 Bosnia Herzegovina and the Ministerial Council?
14 MS. GLUMAC: Madam Vidovic will provide you with that since she is familiar with that. I am not sure
15 who the members of the Members of the Ministerial Council are
16 PRESIDING JUDGE: If Mr. Jelavic receives instructions from either the Presidency of the Federation
17 of Bosnia Herzegovina or the Ministerial Council is he prepared to appear?
18 Ms. GLUMAC: Of course
19 PRESIDING JUDGE: He will appear?
20 MS. GLUMAC; Yes
21 PRESIDING JUDGE: Now you have indicated that a Director has not been appointed for this war
22 archive. Is that correct?
23 MS. GLUMAC: The Director of the war archive of the Croatian Community of Herzeg Bosna has died.
24 Mr. Brkic was in that position. After him no successor has been appointed to that post. And after
25 that this institution has ceased to exist because of the overall status of Herzeg Bosna.
26 PRESIDING JUDGE: And when did the former director die?
27 MS. GLUMAC: I have his death certificate, it happened on the 5th of November 1996.
28 PRESIDING JUDGE: And you have indicated that the war archive no longer continues to exist. So
29 where are those documents to be sent? I gather that another director is not going to be appointed,
30 since the archives don't exit, or at least, won't continue. So who has authority for these archives?
32 MS. GLUMAC: According to the interpretation and to the legal practice in our parts the legal successor
33 to the archive is definitely the archive of the Federation of Bosnia Herzegovina. It succeeds this
34 archive and hand over should be done to that institution. The only problem is that the director has
35 not been appointed. The new director of the new archive of the Federation of Bosnia Herzegovina.
36 And the archive has been established, pursuant to relevant legislation. SO that this archive exists,
37 but it has not been implemented yet, as we say. So what the Prime Minister says in his letter he is
38 asking the hand over from the war archive of Herzeg Bosna to the Ministry of BiH to be effected;
39 although, he claims that the Minister of Defence of the Federation of Bosnia Herzegovina is not the
1 legal successor but that the legal successor is the newly formed archive formed pursuant to the
2 relevant legislation. That is the archive of the Federation of Bosnia Herzegovina.
3 PRESIDING JUDGE: And who would this director of the newly formed archive report to? Who would
4 be his superior?
5 MS. GLUMAC: The Federation of course, the highest bodies of the Federation. It would be an
6 administrative institution.
7 PRESIDING JUDGE: The Presidency of the Federation again?
8 MS. GLUMAC: Yes
9 PRESIDING JUDGE: Or the Ministerial Council?
10 MS. GLUMAC: I think the Presidency.
11 PRESIDING JUDGE: OK. You are not familiar with how the archive is organised. Are you ? That is
12 the war archive of Herzeg Bosna. Are you familiar with how it is organised , how the records are
13 organised, where they are maintained, that sort of thing?
14 MS. GLUMAC: Only to the extent as it is spelled out in this text of the law, that which says certain
15 ministries are in charge of the work of particular agencies. So that is the text of the law. And what
16 I know in addition to that is that war archive was left behind in Mostar and at no time was any
17 transfer or removal of this archive been attempted. And as I said, as far as the structure of the
18 organisation is concerned, I only know about it as far this text of the law goes.
19 PRESIDING JUDGE: You've never been to the war archive, I gather.
20 MS. GLUMAC: No
21 PRESIDING JUDGE; Does Mr. Jelavic contest the power of the Tribunal, of me to compel his
22 attendance should it be determined that he is the appropriate custodian or representative with
23 respect to these documents.
24 MS. GLUMAC: No. The only reaction on his part was that this order was a bit too harsh in its
25 language and he also believes that there should be a practice, which has already been established,
26 that if high representatives are coming that they should be invited in a more friendly terms with less
27 drastic written orders, but he does not contest your competence.
28 PRESIDING JUDGE: And if I wrote his a personal letter inviting him to attend?
29 MS. GLUMAC: I believe he would. With him the problem is not respecting the tribunal, the issue he is
30 contesting is whether it is in his authority to undertake this exercise. In other words, if the issue of
31 his authority is resolved he would undoubtedly come.
32 PRESIDING JUDGE: You know whether Mr. Jelavic is familiar with the way the records are organised
33 in the war archive of what was formerly Herzeg Bosna?
34 MS. GLUMAC: As far as I know, that was as far as I was told by him, he said that he at no time had
35 any duties which were to put him in contact with the archive. He believes that all the documents
36 were being funnelled into this archive during the war but he says that the documents, the whole
37 archives, the whole working of he had no contact with that. He is not familiar with that.
38 PRESIDING JUDGE: Was there a deputy director, when this director was in charge of the war
1 MS. GLUMAC: As far as I know there isn't. The only thing I know is that this director was only an
2 acting director. He was not even appointed to t his position as full time operative, and as far as I
3 know he did not have a deputy either.
4 PRESIDING JUDGE: So who is it then who has control of the war archive of Herzeg Bosna? Who
5 has the key to wherever it is? Who is responsible for making sure that the records remained there?
6 MS. GLUMAC: I believe that the archive is being kept and taken care of but I don't know who it is. I
7 only know what I have been told and I am not familiar with that aspect, but he information as far as
8 I know, or as far as my information goes, has never been removed or moved from Mostar.
9 PRESIDING JUDGE: Thank you. Judge Vidovic.
10 JUDGE VIDOVIC: Yes I would like to explain a couple of issues here. How we arrived at a point to
11 that Mr. Jelavic be identified as the person of authority in this matter.
12 PRESIDING JUDGE: Yes, you may proceed.
13 JUDGE VIDOVIC: Mr. Jelavic was the deputy minister of the Ministry of Defence of Herzeg Bosna and
14 subsequently the Minister of Defence in the Federation of Bosnia Herzegovina and he was
15 identified as proposed by the prosecution, as the legal successor of what was formerly the archive
16 of Herzeg Bosna. I need to explain several points so that we know what documents are being
17 requested by the Tribunal and why Mr. Jelavic is identified as a person who has certain
18 information and knowledge about the archives of Herzeg Bosna. The order from the Tribunal
19 explicitly asks, requests the war documents for instance orders for the central Bosnia operation
20 zone and the Ministry of Defence of Herzeg Bosna as well as minutes directed to General Blaskic
21 by Mate Boben or the main staff of Herzeg Bosna and the Ministry of Defence of the Croatian
22 community of Herzeg Bosna and so. In other words these are all documents more or less that are
23 military. And that rightfully belong to the domain of the Ministry of Defence of Herzeg Bosna. I
24 asked about the whereabouts of these documents and I was told that that it was in possession of
25 HVO which has part of the military of the Federation of Bosnia Herzegovina and so it is absolutely
26 within the domain of the Ministry of Defence which is headed by Mr. Jelavic so that is
27 incontrovertible. As far as the archive of the Federation of Bosnia Herzegovina is concerned it is
28 true this has not been implemented yet. There has not been transfer of one archive to another and
29 so this archive is still in the possession of the HVO and still under the authority of Mr. Jelavic. SO
30 Mr. Jelavic is indeed the person of authority and he can identify the person who is familiar with
31 this archive and who knows where it is, and what the contents of this archive are. And as far as
32 the authority of the Prime Minister of the Federation of Bosnia Herzegovina, as you know the
33 Republic of Bosnia Herzegovina consists of two entities, one is the Federation of Bosnia
34 Herzegovina and the Prime Minister of the Federation is Mr. Bicakcic, and you have his
35 correspondence with Mr. Jelavic. Mr. Bicakcic is superior to the Minister of Defence and he is the
36 only person who has the authority to issues order to the other ministers. And that is how the
37 Government of the Federation of Bosnia Herzegovina works. But I am leaving a possibility that
38 this issue be brought up and resolved within the government of the Federation of Bosnia
1 PRESIDING JUDGE: What do you mean by that, Judge Vidovic?
2 JUDGE VIDOVIC: You mean the last point that I made. What I am saying is that Mr. Bicakcic as the
3 Prime Minister of the Federation is authorised to issue orders to his minister including Mr. Jelavic.
4 However, that issue the Tribunal can bring up either with the Prime Minister or any other body of
5 the Federation of Bosnia Herzegovina and receive a response. Whether the Federation of Bosnia
6 Herzegovina is authorise to issue an order to Mr. Jelavic to identify the person who will turn over
7 the documents of the archive or appear here, but I personally believe that it will be a waste of time
8 if we engaged in trying to confirm the fact that seems fairly obvious. But if you want to go ahead
9 and confirm that fact it would be all right with me.
10 PRESIDING JUDGE: Just one question Judge Vidovic. In the letter, I think it is exhibit 10, 8 it's the
11 letter from Mr. Jelavic to the Prime Minister of the Government of the Federation of Bosnia
12 Herzegovina and in paragraph 3 he says that, I think the subpoena is not founded on international
13 law and the statute and rule of the international criminal tribunal. It's February 19th from Mr.
15 JUDGE VIDOVIC: Your question with that respect.
16 PRESIDING JUDGE: He says that only the state can decide who and where will represent it and when
17 it come to co-operation with the ICTY it is represented by the government or more precisely by its
18 office for co-operation with ICTY and not its officials and consequently not by the Defence
19 Minister of the Federation. Are you not, who is the office of co-operation with the ICTY?
20 JUDGE VIDOVIC: I am the authorised representative of Bosnia Herzegovina for contract with the
21 ICTY. And I will explain this in some detail and submit the appropriate documents. I said that I
22 am Minister Counsel with the Embassy of Bosnia Herzegovina, pursuant to a decision of the
23 Presidency of BiH of the 30th July 1994. I was appointed the representative of Bosnia
24 Herzegovina for contacts with the ICTY. And this decision was published in the official gazette
25 on the same day then I received a general authorisation of the Prime Minister of Bosnia
26 Herzegovina and the Federation of Bosnia Herzegovina of the 4th June 1994 to attend the hearing
27 when ever the interests of Bosnia Herzegovina are concerned and that was issued by the Ministry
28 of Foreign Affairs of Bosnia Herzegovina . Both these documents have been submitted to the
29 Registry of the Tribunal but I submit copies of them for the purposes of this hearing to day.
30 PRESIDING JUDGE: They will be accepted. My question really was what he meant by that last
31 paragraph. Because as I understand your position, you believe that he is the proper authority to
32 appear before the Tribunal with respect to these documents that are the subject of the subpoena
33 duces tecum. You have indicated that the Prime Minister has authority to direct him to appear and it
34 seems to me as if he is saying that its your office that co-operates with the tribunal. You have
35 taken a position that either he or someone who is familiar with the records should be here. And
36 that he is the person who has control of those records in his capacity as Minister of Defence. So it
37 seems to me that he won't listen to your decision, he certain won't listen to my subpoena, and I
38 don't know that even if I wrote him he would appear. So, I don't know. Where are we, Mr.
1 MR. HARMON: Your Honour, we are at a point in this hearing where once again Mr. Jelavic to whom
2 the subpoena has been directed personally has failed to comply with the subpoena duces tecum.
3 The subpoena was issued on 15 January. This is our fourth hearing. He has been directed to
4 appear on three other occasions. He has been asked also to send a representative here, who is
5 familiar with the location and the contents of the archive and to inform this court and the
6 prosecutor's office what steps have been taken to comply with the subpoena duces tecum. Now
7 what we are met with today is a statement by counsel that essentially there is a dispute as to
8 whether he is the successor. I think the evidence in this case shows that he is the successor. I also
9 refer to exhibit no. 11, which was submitted today from the Prime Minister informing Mr. Jelavic
10 that he still maintains custody of these documents. We have an argument put forth today by
11 counsel that because the custodian of this archive died I think sometime in November that that
12 seems to be the end of the matter. We know for a fact that these archives exist. Mr. Jelavic knows
13 who the custodian of those archives was, he knows where those archives and materials that are
14 responsive to this subpoena are. I haven't heard a single word today you Honour, through
15 counsel, his representative, specifying what steps have been taken to comply with this subpoena
16 which was issued in January of 1997. Now I believe once again today there an attempt to derail
17 the compliance; with this subpoena and obfiscate the issues. My view is that this subpoena was
18 directed specifically to Mr. Jelavic. He has not shown up. His representative is not prepared to
19 inform this court of what he has been directed to inform it of. And that is where I think we are
21 PRESIDING JUDGE: I understand where we are. What I want to know from you is what would you
22 propose that I do.
23 MR. HARMON; I would propose your Honour, that the court find Mr. Jelavic is the successor
24 custodian of central archives and has wilfully failed once again to provide the Tribunal, the office
25 of the Prosecutor with the documents described in the subpoena duces tecum. That he has wilfully
26 failed to designate a representative who could appear before you, who could identify the exact
27 location and the contents of the archives and inform you of what steps have been taken to comply
28 with the subpoena duces tecum. That by failing to comply with the subpoena duces tecum Mr.
29 Jelavic has obstructed the office of the prosecutor's investigation and preparation or the case of the
30 Prosecutor v. Blaskic, that Mr. Jelavic be found in contempt of this court and that your Honour
31 order him personally to appear before you to explain why he should not be punished for that
32 contempt. Should be fail to appear, your honour, we will be requesting this court to issue a
33 warrant for his arrest.
34 PRESIDING JUDGE: The Prime Minister says in his letter of 24 February to Mr. Jelavic in his
35 capacity as Defence Minister, he says in the last paragraph, he talks about the archives of Herzeg
36 Bosna and he then says considering the above and bearing in mind that the documents pertain to
37 defence matters and the fact that as the Federal Defence Minister you are in a position to have the
38 most knowledge of the matter, it is my opinion that grounds for seeking a suspension of your
39 obligations pursuant to the order of the ICTY judge don't exist and I ask that you comply with the
1 obligations arising from the order. That the exhibit you were referring to. Thank you Mr.
2 Harmon. Ms. GLUMAC do you have a response to the prosecutor's proposals as to how I should
3 proceed given Mr. Jelavic's failure to appear and failure to have someone who is familiar with the
4 records appear to day.
5 MS. GLUMAC: Your Honour, I think that the fact that he does not believe he is the person of authority
6 to handle the archive and does not have the authorisation of the highest authorities of the Federation
7 is what is really the point here rather than his intentional obfuscation or failure comply with the
8 order of the Tribunal. And what you have quoted now even Mr. Bicakcic accepted the fact that the
9 archive of BH Federation is not the legal successor of the HBHV in other words the Prime
10 Minister himself as is stated in the second paragraph of the letter agrees with Mr. Jelavic that he is
11 not the legal successor of the archive. He is just giving him and additional obligation, a duty to
12 take over this obligation and become involve in the transfer of the archive, so I think that really it is
13 a question of making clear who is authorised, rather than an intention to not comply with the
14 orders of this tribunal. So, I propose that the proposal of late prosecutor not be accepted.
15 PRESIDING JUDGE: Doesn't the Prime Minister say that even though, he says I agree with your
16 conclusion that the archive of the BH Federation is the legal successor to the HB archive,
17 however, you know that such an institution administrative organisation does not exist at the level
18 of the BH Federation, and then he says since a director of the archive of the BH Federation has
19 never been appointed and pursuant to the above cited legal provisions the archive of the Federation
20 has not started its work. Subsequently the documents and items have never been properly turned
21 over to the archive of the BH Federation by the HZHB archive. And then he says considering the
22 above and bearing in mind that the documents pertain to defence matters and the fact that as the
23 Federal Defence Minister you are in a position to have the most knowledge of the matter, it is my
24 opinion the grounds for seeking a suspension of your obligations do not exist and I ask you to
25 comply. SO what he is saying, he's telling him as his superior that he does have responsibility for
26 those documents because they are defence documents. And that there is no archive I gather .
27 There is no director of the archive of the BH Federation but he is saying that even though there is
28 no director because items requested relate to defence matters he has the authority. I gather Mr.
29 Jelavic disagrees. He says he doesn't have the authority.
30 MS. GLUMAC: But your Honour, also it states here that it is only now that Mr. Jelavic should take
31 over and become involve in the transfer of the archive to the BH Federation archive. In other
32 words, he is saying that Mr. Jelavic up until now had no legal authority over these documents but
33 now he should take over the documents and the archive of the Herzeg Bosna, because my
34 understanding is that this archive wasn't attached to the Ministry of Defence of Herzeg Bosna. It
35 was a general sort of community archive. But now he is ordering him to take over these
36 documents. in other words he is not taking over these archives because there is not director there
37 but he is telling him to take over these documents which does not mean a non compliance. It
38 points to the fact that the whole issue of the legal successor has not been resolved up until then, but
39 the archive does exist, it has been established by law, but no director or no head of the archive has
1 ever been appointed. And now for the first time we are talking about an authorisation to take
2 custody of these documents of the former archive of Herzeg Bosna.~
3 PRESIDING JUDGE: Mr. Jelavic then accepts the authority of the Prime Minister Bicakcic to direct him
4 to take over control of documents of the HZHB archive, the legal successor for which was the
5 archive of the Bosnia Herzegovina Federation, but no director has been appointed. But is he
6 authorising Mr. Jelavic to take control of those documents that pertain to defence matters that are in
7 the archive? Is that how you read this letter? That's what I understand you to have said.
8 MS. GLUMAC: Yes, that's what he states here. He authorises him at this moment to take over those
9 documents at this time. I think that nowhere it has been mentioned as Madam Vidovic said that
10 there exists as a separate entity the war archives of HZHB as an exclusively military archive.
11 PRESIDING JUDGE: Does Mr. Jelavic accept that the Prime Minister, Bicakcic has that authority to
12 direct that he take over those documents that pertain to defence matters?
13 MS. GLUMAC: The only thing that I know is what I have already told you that he asks the competent
14 authorities in the Federation of Bosnia Herzegovina to make a decision as to the authority. If this
15 letter was confirmed by them I don't think that we would have any problems.
16 PRESIDING JUDGE: And who is them, that would have to confirm the decision of the Prime Minister
17 Bicakcic? Can you give me their names and the positions that they hold?
18 MS. GLUMAC: I think the Presidency or the Ministerial Council. My learned colleague will be able to
19 supply you with the names. I don't know who the members are of the Ministerial Council. I think
20 there are three members. I don't know either. We can supply the names.
21 PRESIDING JUDGE: Judge Vidovic has told us that the Prime Minister has this authority. She has
22 told us that it is not necessary to go any further. I gather you disagree. But you don't know the
23 names of these people.
24 MS. GLUMAC: Madam Vidovic also said that my claims can be confirmed, verified
25 PRESIDING JUDGE: Madam Vidovic?
26 JUDGE VIDOVIC: I stated very clearly that the Prime minister of any government is authorised to issue
27 orders to his ministers, members of his cabinet. So the Prime Minister, Bicakcic, is in any case
28 authorised to issue an order to any of his minister including Mr. Jelavic of course.
29 PRESIDING JUDGE: How do you propose we handle this difference of opinion about the authority of
30 the Prime Minister? Or do you consider it relevant to the orders that have been issued by me
31 regarding Mr. Jelavic?
32 MR. HARMON; Your Honour, if I were essentially to wait until a political dispute is resolved I could
33 be here until well after the trial starts. This subpoena very clearly directed Mr. Jelavic on certain
34 terms very clearly to be here, to designate a representative who could inform the court of the
35 location of the archives, to inform the court of the contents of the archives and to inform the court
36 of what steps since 15 January 1997 have been taken to comply with this subpoena duces tecum.
37 I think the issues that have been raised by counsel are issues that are not relevant to your order
38 directing Mr. Jelavic
1 to be here personally or designate a knowledgeable representative. I would inform the court in one of the
2 previous hearings I submitted an exhibit, I don't have the number unfortunately, your Honour, but
3 it is a letter from the Prime Minister dated 21 February 1997, to Mr. Jelavic asking him to obey the
4 order of this court. Mr. Jelavic has been asked to obey the order of this court by your Honour,
5 he's been asked to obey the order of the court by the Prime Minister. These archives, just because
6 the custodian died, these archives didn't disappear. From what I am hearing from counsel, they
7 remain in the same place and we have every right to know what steps have been taken to comply
8 with this subpoena duces tecum. From what I gather, since I haven't received a single document,
9 no attempts have been made to comply with the subpoena duces tecum. I think, your Honour's
10 question was very direct and to the point, who has the key to the archives. Is Mr. Jelavic saying
11 that he doesn't have actual control over those archives? We have been informed by the
12 representative of the Federation and the Bosnian government that he is the legal successor. We
13 have been informed in exhibit 11 that I submitted today that the Prime Minister has said those
14 documents have not been transferred to this new entity, this new archive, and clearly Mr. Jelavic
15 has, we believe, actual control over these archives. Bear in mind, your Honour, that the previous
16 hearing in response to this subpoena duces tecum, we received, it could have been in response to
17 the subpoena duces tecum or it could have been in response to a request for co-operation we made
18 on 2 May 1996. We received 11 documents. These documents must have come from some place.
19 My view is, your Honour, that there is non-compliance to this day with the subpoena duces tecum.
20 Mr. Jelavic has been given four opportunities to comply with this subpoena duces tecum, and I
21 would again reiterate my request.
22 PRESIDING JUDGE: The concern that I have, Ms. GLUMAC, is that in his letter Mr. Jelavic letter of
23 Feb. he says that only a state can decide who and where will represent it and when it comes to
24 co-operation with International Criminal Tribunal for the former Yugoslavia it is represented by the
25 government or more precisely by its office for co-operation with ICTY. And not its officials and
26 consequently not by the Defence Minister. I read that to say saying that the office for co-operation
27 with the ICTY is responsible for co-operating with ICTY and what Madam Vidovic has told us is
28 that Mr. Jelavic should comply with this subpoena. He's been told to comply by the Prime
29 Minister and he should comply. And so if I am to accept his position that he states in his letter of
30 February, he's certainly aware of Madam Vidovic's position as the Minister counsel and as the
31 person in charge of the office for co-operation with ICTY. She herself, I believe, has
32 communicated with him. Am I correct about that? Yes. And so he knows what her position is.
33 So if he is now recognising that office then that office has also told him to comply.
34 MS. GLUMAC: Your Honour, on the other hand we have the thing that I mentioned before these are the
35 documents that are in the majority at least partly fall into the category of state secrets. Some of the
36 documents have to do with the state security, so he feels that with these kind of documents he
37 would need additional authorisation, additional permission.
38 PRESIDING JUDGE: We have a rule that governs that situation and it allows for a person who takes
39 that position regarding documents that may constitute state secrets or may affect their security for
1 those documents to be examined in camera by the judge to make that determination. So then
2 pursuant to that rule I would be more than willing to examine the documents if that has been his
3 concern. But what I am saying is that at one point he says it's the office of co-operation with
4 ICTY whose responsible and that person, Madam Vidovic, has said and has asked him to come.
5 So he won't listen then to the office of co-operation with ICTY, he won't listen to the Prime
6 Minister, he won't listen to my orders. And when I say listen, what I mean is comply. So I don't
7 know how else to get him here. You said, I am sure you were saying it in jest, that if I wrote him,
8 if I spoke to him in less direct term he would be here. I would be happy to attach a letter to this
9 order that will enter that will encourage him to come.
10 MS. GLUMAC: Your Honour, let me just add. I don't think that this has been interpreted in the correct
11 manner, despite of the letter indicating that only the office for co-operation with ICTY are
12 authorised. to work with the Tribunal. He was trying to say that all the activity of the state towards
13 the Tribunal goes through the office. He did not mean any disrespect. He just wanted to say that
14 the office is authorised for any co-operation and not he as an individual. That is what he meant.
15 He did not mean any disrespect for any decisions of judge Vidovic or he didn't mean any
16 disrespect of you.
17 PRESIDING JUDGE: Now, Mr. Jelavic is not appeared. It certainly would have been more
18 appropriate for him to appear to provide us, to provide me with answers regarding his duties,
19 regarding he knowledge of the archive. You certainly are not a representative. And all he has said
20 in letters that he is not the representative. We have many letters from the Prime Minster directing
21 him to be here. And then once he comes of course, if he did come then I could enquire of him
22 regarding his responsibilities. But first he must come here as directed, and even if the Prime
23 Minister is wrong about whether he has control, or whether the has the documents. The point is
24 that the Prime Minister has directed that he be here and the Prime Minister, it seems to me, is the
25 person who is responsible for exercising the state's obligation under article 29 of our statute and
26 many other section of the statute and our rules to co-operate operate with the tribunal, and he has
27 co-operated and he has directed him to be here.. So it appears to me that he is not complying with
28 that directive nor with the subpoena duces tecum, which is the underlying request. If nothing else
29 is to be added by you, then Mr. Harmon or Ms. GLUMAC, or Madam Vidovic I will take this
30 matter under advisement and issue an order either today regarding this matter or on Monday. But I
31 don't think Mr. Jelavic will be here no matter how we ask him to be here. And that's unfortunate
32 because we need to resolve the issue of the subpoena, the documents requested in the subpoena.
33 So we will adjourn.