International Criminal Tribunal for the Former Yugoslavia



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


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.


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?

31   Archive.

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

39   archives?


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

39   Herzegovina.


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.

14   Jelavic

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.

39   Harmon.


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

20   today.

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.