1 Friday, 18 July 2008
2 [Motion Hearing]
3 [Open session]
4 [The Accused Gotovina and Cermak not present]
5 --- Upon commencing at 2.30 p.m.
6 JUDGE ORIE: Good afternoon.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
9 everyone in and around the courtroom. This is case number IT-06-90-T,
10 the Prosecutor versus Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 We are here today in this case to have a hearing, as provided for
13 in Rule 54 bis, which is held because the Prosecution has filed an
14 application for an order pursuant to Rule 54 bis. That was filed on the
15 13th of June, 2008, with quite a number of annexes.
16 The Chamber has received two recent submissions, one by the
17 Republic of Croatia
18 submission. Before we continue and before I give an opportunity to make
19 further submissions, having set out the main purpose of the hearing of
20 today, I would like to have the appearances.
21 Prosecution first.
22 MR. TIEGER: Good afternoon, Mr. President, Your Honours. Alan
23 Tieger, Steve Margetts, Katrina Gustafson, and case manager Donnica
24 Henry-Frijlink for the Prosecution.
25 JUDGE ORIE: Thank you, Mr. Tieger.
1 As far as the Defence teams are concerned, the Chamber was
2 informed that the accused Cermak and Gotovina have expressed that they
3 did not want to be present during this hearing.
4 MR. MISETIC: That is correct, Your Honour. Luka Misetic and
5 Greg Kehoe on behalf of General Gotovina. For the record, General
6 Gotovina has waived his right to be present for this hearing.
7 JUDGE ORIE: Thank you.
8 Then for the Cermak Defence.
9 MR. CAYLEY: Yes. Thank you, Your Honour. Andrew Cayley and
10 Tihomir Mak for Mr. Cermak, and indeed, Mr. Cermak has also waived his
11 right to be present this afternoon. Thank you.
12 JUDGE ORIE: For Mr. Markac. Then Mr. Kuzmanovic, Mr. Mikulicic.
13 MR. MIKULICIC: Yes, Your Honour. For Mr. Markac, Goran
14 Mikulicic and Tom Kuzmanovic, Vlado Randunic, case manager, and David
15 Gault, legal assistance.
16 JUDGE ORIE: Yes. And I see that Mr. Markac is present...
17 MR. MIKULICIC: Yes. Mr. Markac has expressed his wish to be
18 present this afternoon.
19 JUDGE ORIE: Yes. Then for the Republic of Croatia
20 you are the ambassador of the Republic of Croatia
21 here representing the Republic of Croatia
22 MR. KRNIC: [Interpretation] Yes, Your Honour, that is correct.
23 To my left is Mr. Gordan Markotic. He is the chief of the administration
24 for cooperation with international tribunals of the justice ministry of
25 the Republic of Croatia
1 to be my technical assistant, and he's the chief of the section in the
2 same department of the justice ministry. Thank you.
3 JUDGE ORIE: Thank you, Mr. Krnic.
4 The Chamber wondered how to proceed today, especially in view of
5 the rather extensive submissions that were made by the Republic of
7 be of great use to have everything repeated. I immediately add to this
8 that the -- both the submissions, to which I have not commented and I
9 have made no reference yet to the content filed confidentially.
10 Therefore, if the parties want to discuss them, either we should agree on
11 the non-confidential character or we should move into private session.
12 MR. TIEGER: I'm sorry, Your Honour. Were you looking for a
13 submission about the general approach to be taken, or did you -- were you
14 indicating that at any given moment you wanted the parties to raise the
15 possibility of moving into private session?
16 JUDGE ORIE: Well, it depends. If we come to certain issues for
17 which apparently the Republic of Croatia
18 has sought confidentiality, then of course, we should go into private
19 session unless the Prosecution or the Republic of Croatia
20 on confidentiality anymore. And if we are dealing with matters which are
21 not at the basis of the confidentiality, then of course, we could
22 continue. However, we have to verify -- Mr. Tieger, you know for
23 yourself what is essential -- essentially the reason why you sought
24 confidentiality. So you can express yourself on that matter. If,
25 however, you would like to deal with the submission of the Republic of
2 in the submission is something you could discuss in public. The starting
3 point, then, would be that you could not, but of course, on verification
4 with the Republic of Croatia
5 MR. TIEGER: No, I quite understand, Your Honour, and I agree
6 with what I understand as the general tenor of the Court's direction and,
7 in fact, we filed confidentially at least in large measure because of the
8 confidential filing of Croatia
9 can be made public, but we didn't want to compromise their concerns
10 pre-emptively and filed for confidentially on that basis.
11 JUDGE ORIE: Yes. Then the information that is contained in the
12 submissions by the Republic of Croatia
13 Prosecution is so -- is massive and, therefore, the Chamber, of course,
14 having received these submissions only recently doesn't feel that it
15 could go into any detail and further discuss these matters. So for the
16 time being, the Chamber would like to give an opportunity, first of all,
17 to the Republic of Croatia
18 proceedings, to add whatever you would like to add, perhaps to clarify
19 matters which apparently are contentious, seeing the submissions made by
20 the Prosecution.
21 I would then like to give a similar opportunity to the Office of
22 the Prosecution, unless the Office of the Prosecution would prefer to
23 first outline in general terms the request. I don't know whether you
24 would feel any need to do that, Mr. Tieger.
25 MR. TIEGER: No, Your Honour. I'm happy with the Court's
1 suggestion. I just -- one point of clarification. When the Court
2 referred to the submissions of the Republic of Croatia
3 mean, but I wanted to make sure that that was the case, the document that
4 was attached to the Prosecution's submissions that was tendered to the
5 Prosecution this week.
6 JUDGE ORIE: I was referring to a document which carries as a
7 stamp on the cover page "UN ICTY Zagreb liaison officer," received the
8 15th of July and attached to your submission, Mr. Tieger; and we find
9 also attached a translation, an unofficial translation, into English. It
10 is the document which carries a number -- it is dated 14th of July, 2008.
11 The entry number is 514-09-01-08-75, and it's addressed to the ICTY
12 liaison office, Mr. Thomas Osorio, head of the office. That's the
13 document I'm talking about, and I take it THAT all parties have -- are
14 aware of this document.
15 Then finally, of course, Defence teams. A few things have
16 already been submitted in relation to this request for an order. First,
17 to deny it in limine; also, the issue of whether the admissibility of any
18 material produced as a result of this order would be admissible evidence.
19 That is an issue I'd like not to discuss today. I'd like to discuss the
20 content, rather, the response by the Republic of Croatia
21 And I specifically invite you, Mr. Krnic, also to address the
22 subsidiary requests made by the Prosecution. I don't know whether I
23 still have to list them for you, but the Prosecution asked, apart from
24 providing within 50 days the documents requested; also, alternatively, to
25 make all the documents obtained available to the Prosecution for
1 inspection; to provide the Chamber with a complete list of all documents
2 in possession of the Croatian authorities; to provide the Chamber with a
3 report detailing the specific investigative steps and the results of
4 these steps; and finally, to continue the investigation.
5 Mr. Krnic, may I give you first an opportunity to add, to
6 emphasize, to clarify the position of the Croatian government.
7 MR. KRNIC: [Interpretation] Your Honours, this is a place from
8 which it would be uncomfortable to speak when I'm standing. Would it be
9 permissible for me to continue to speak and still be seated?
10 JUDGE ORIE: Yes, please do so.
11 MR. KRNIC: [Interpretation] Thank you very much.
12 First of all, Your Honour, one remark relating to the eventual
13 open or closed sessions that you referred to earlier. We completely
14 agree with your approach, meaning that if in the course of my address we
15 come to such a situation relating to the documents, we will suggest
16 moving into closed session.
17 In respect of your main request, I would like to say the
18 following: Why are we here today? We are here to use concrete arguments
19 to repeal assertions by the Prosecution and the lack of foundation made
20 by the Prosecution request to issue a binding order in relation to
21 requests 723 and 739, also known as requests for the provision of
22 "topnistvo" diaries or artillery diaries as well as actions of the
23 Croatian special police. We are convinced that the request by the
24 Prosecution is unnecessary, and it's not functional in terms of the
25 proceedings and, as such, without foundation.
1 The Republic of Croatia
2 to hand over the documents sought by the Prosecution if the authorised
3 bodies of the Republic of Croatia
4 our archives. We believe, furthermore, that finding the requested
5 documentation - and as you will hear later, a part of that documentation
6 has been found in the meantime - would go in favour of the arguments that
7 we are stating, and that is that during the war operations that are being
8 discussed on the part of the Croatian army and the police, there were no
9 violations of laws of -- and customs of war. So where is the actual
10 problem then?
11 Before providing a direct answer to that question, please permit
12 me to make a few brief observations which are very important in reaching
13 a decision on whether a binding order should be issued in respect of the
14 Republic of Croatia
15 OTP has presented Croatia
16 Republic of Croatia
17 So what remains are only two partially unresolved requests by the
18 Prosecution, and they are these that we are discussing today, and I
19 underline that this is just partially unresolved.
20 The Republic of Croatia
21 office since the beginning of our mutual cooperation until today 19.500
22 different documents containing over 100.000 pages only in the section
23 that concerns the Croatian defence ministry.
24 I would like to add the following: The Office of the President
25 of the Republic of Croatia
1 transcripts; and what is also generally known is that within the same
2 cooperation, the Republic of Croatia
3 relating to the hand-over of accused. Along with that, the Republic of
5 access possible to members of the OTP, which is also the case in this --
6 in these proceedings, in this case. The above-referred-to facts can
7 serve as proof of so-called full cooperation of Croatia with the ICTY,
8 and this has been repeatedly asserted and affirmed by the chief
9 Prosecutor Carla del
10 assertions have also been made by Judge Meron and Judge Pocar in their
11 capacity as Presidents of the ICTY, and they have referred to the
12 successful cooperation of Croatia
13 On the other hand, the Prosecutor's office will, as the grounds
14 for its assertion on non-cooperation, probably referred to an official
15 note dating from 1999, in which the Republic of Croatia
16 for a brief period of time such cooperation in relation to the Storm
17 military action because at that time the Croatian parliament had reached
18 such a decision which the government was absolutely duty-bound to follow.
19 But the Prosecution will probably skip over the fact that after that, in
20 2000, a parliamentary declaration was adopted on the cooperation of the
21 Republic of Croatia
22 affirmed and, as I mentioned earlier, was implemented in a constructive
24 Therefore, the assertion by the OTP made in this case cannot
25 stand that the Republic of Croatia
1 been obstructing cooperation with the ICTY and that non-provision of the
2 requested artillery diaries and other documents in this specific case
3 forms a part of this obstruction, because of which a binding request or
4 order is necessary and, also, informing the Security Council and other
5 bodies about this non-cooperation.
6 In relation to this specific request by the Prosecution, it's
7 true that the Republic of Croatia
8 problems are of the following objective nature: In reference to the
9 so-called artillery diaries, because these military wartime documents
10 were not adequately maintained because of the conditions prevailing at
11 the time and because of some failings in this aspect in our archives, it
12 has not been possible until now to find all the requested documents.
13 Probably, it doesn't exist or some of it doesn't exist in our official
14 archives, but the Prosecutor's office is insinuating, in a way, that
15 these documents have deliberately been taken away or concealed. We
16 cannot accept such accusations. These accusations are something that we
17 most forcefully reject.
18 In order to dissuade the Prosecutor's office about these
19 assertions and the sense of theirs, we have opened an internal
20 investigation in the course of which scores of people have been
21 interviewed; and the result of that investigation was that a considerable
22 number of documents were found, which have in the meantime, a few days
23 ago, been handed over to the Prosecutor's office. The investigation that
24 was initiated is still continuing. It's an internal investigation and is
25 providing much better results than the case would be had we had initiated
1 regular criminal proceedings via the Prosecutor's office of the Republic
2 of Croatia
3 circles in which -- on which the investigation is focusing.
4 Our objective at this stage is to establish where the chain of
5 possession of these documents -- or the chain of possession of these
6 documents and the activities of the responsible persons. So criminal
7 proceedings at this phase would include all the familiar processing
8 mechanism, dead-lines, and other means which would enable us to find
9 these documents, which would also be the primary interest of the
11 So the initiation of this investigation, which is obviously
12 yielding good results, and when continued to do that in realistic terms,
13 naturally, is the best proof of the decisiveness of the government to
14 fulfil the requests that have been put. Of course, the Prosecution is
15 interpreting this differently, as a reason more to issue Croatia
16 binding order because it only seems to be acting under pressure so that
17 only a binding order would force it to fulfil the relevant request. That
18 is why we believe that this Trial Chamber will know how to assess and
19 evaluate the true facts properly and to take into account all the details
20 of our mutual cooperation in the process.
21 When I'm talking about the artillery diaries, I would like to add
22 something more. The OTP constantly says that these artillery diaries are
23 essential and they're a crucial part of the indictment referring to
24 excessive shelling. I have major doubts in terms of this. If these
25 diaries - which are still not there - are crucial for the Prosecution,
1 what is the basis and the grounds for issuing this particular point in
2 the indictment anyway? How come that the Prosecution first issued this
3 particular count in the indictment and only then proceeded to seek
4 evidence and grounds for such an indictment --
5 JUDGE ORIE: Mr. Krnic, the indictment against the three accused
6 has been confirmed on the basis of prima facie evidence by the Tribunal.
7 So therefore, I don't think at this moment we should discuss whether the
8 Prosecution has brought this indictment. If the Prosecution considers
9 the documents crucial, that could be for the reason that apart from the
10 evidence available that additional documentary evidence could further
11 support the Prosecution's case; and it is not at this moment, I think,
12 subject to discussion whether or not this expression in the submissions
13 by the Prosecution should lead to conclusions as you suggest would be
14 right conclusions.
15 You may proceed.
16 MR. KRNIC: [Interpretation] Thank you very much.
17 The situation is somewhat similar in relation to documents on the
18 special police. Investigations were carried out, and the documents
19 requested by the OTP had very specific numbers, registration numbers. So
20 that has to do with that part of the request made by the Prosecution;
21 because yet again, the OTP marked this as crucial, essential, extremely
22 important for proving that particular count in the indictment. And then,
23 it so happens that this documentation refers to peripheral matters,
24 procuring food, clothing, et cetera. You will receive more detailed
25 information about this somewhat later, Your Honours.
1 Your Honours, in conclusion of my introductory remarks, I would
2 like to propose that the Trial Chamber reject the request made by the
3 Prosecution and to allow the authorities of Croatia to continue their
4 investigation and to continue looking for the documents in the
5 above-mentioned way; that is to say, to continue the investigation that
6 has started yielding positive results and that will primarily be in the
7 interest of fairness, justice, and the just conclusion of these
8 proceedings and, therefore, in the interest of the OTP as well.
9 May I point out yet again that with regard to this particular
10 legal case, the Republic of Croatia
11 sincere. This Trial Chamber knows that in the same proceedings we took
12 the same attitude with regard to orders made to have documents issued to
13 different Defence teams as well as the OTP.
14 Finally, I would like to ask you to give the floor to my
15 colleague, Mr. Gordan Markotic, who will give you some very specific
16 information in support of the points I have made. He will show to you in
17 a very convincing way that the possible issuing of a binding order on the
18 Republic of Croatia
19 JUDGE ORIE: Mr. Markotic.
20 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
21 I would like to state the position of the Republic of Croatia
22 respect of the request made by the OTP to have a subpoena issued. I am
23 not going to repeat everything that has already been stated in the
24 documents that we provided on the 14th of July. However, it is necessary
25 to explain parts of this response that we provided as well as to refer to
1 some other circumstances that are going to give a more complete picture
2 to the honourable Trial Chamber so that they can establish the actual
3 situation with regard to this request of the OTP.
4 Perhaps I will speak at length, but bear with me because I
5 believe this is necessary in order to understand parts of the request of
6 the OTP.
7 At the very beginning, the OTP states in its request that from
8 November 2006 the Republic of Croatia
9 artillery diaries requested as well as documents of the military police.
10 It is true that in November 2006, or to be more precise, on the 10th of
11 November, 2006, Croatia did receive a request from the OTP, number 719,
12 requesting access to archives of the Ministry of Defence and the Ministry
13 of Foreign Affairs. What was done in response was allowing investigators
14 of the OTP who stayed in Croatia
15 other times in the course of 2007; however, the first request was
16 received on the 15th of May, 2007 - 723 is the number of the document -
17 whereas the submission of documents, of documents of the special police,
18 was requested on the 27th of June, 2007, for the first time, and 739 is
19 the number of that document.
20 I think it is necessary to point that out in order to understand
21 what the time sequence was in respect of certain requests that were made
22 and responses that were provided to them.
23 As for insight into the archives of the Republic of Croatia
24 is mentioned is that the Croatian authorities restricted access and
25 insight into archives, unnecessarily limiting examinations of documents
1 and also requesting advance requests to have access to archives and
2 certain documents. We believe that on the whole this is incorrect.
3 Namely, from the very outset these were not unilateral restrictions by
4 the state authorities of the Republic of Croatia
5 of gaining insight into Croatian state bodies were agreed upon with the
6 representatives of the OTP. As a rule, they were not opposed to those
7 modalities. Namely, they agreed that the officials in the archives also
8 have working hours; that they cannot be at their disposal 24 hours a day;
9 also, that archives cannot take in a large number of investigators at one
10 point in time; and also, that there has to be a procedure that has to be
11 observed in terms of accessing the archives and making the examination of
12 documents as efficient as possible.
13 I would like to point out today that under the same conditions
14 that were confirmed in terms of examining archives with the
15 representatives of the OTP were applied in respect of Defence teams for
16 accused persons in this case.
17 I think it is also important to say that at one point in time we
18 did try to have archives officials available 24 hours a day so that in
19 this way we would yet again show our good will and cooperativeness in
20 respect of the OTP. However, perhaps at one point the OTP was even in a
21 more favourable position than the Defence teams. However, this system of
22 work simply could not function that way, and the representatives of the
23 investigation teams staying in Croatia
24 The last thing that was agreed upon was that investigators be
25 granted access to the archives in the following way, that they be shown
1 all the registers from a given state body; and then on the basis of these
2 registers, they request documents that are of interest to them. After
3 requesting these documents, the archives officials would bring them
4 binders or maps containing the required documents. Additionally, what
5 was made possible was for the investigators to enter the archives
6 premises to see from which particular place those documents were taken,
7 and perhaps they could look left or right and see whether they needed any
8 other documents too. That is how this functioned, insight into the state
9 archives of the Republic of Croatia
10 I just want to point out once again that absolutely nothing was
11 hidden from the investigators within the scope of our possibilities. We
12 offered the requested documentation to the investigators, of course, if
13 the documents were in the archives in the first place. As for the
14 artillery diaries, annex C of the request pertains to the request for
15 them, and it is stated specifically there that on the basis of the
16 assessments made by the OTP, the Ministry of Defence and the Republic of
18 of 943 pages of documentation. What we find confusing in this case is on
19 the basis of what this estimate was made and how can this estimate be
20 that specific. How can they envisage even the number of pages of these
21 documents that have not been seen and no one knows whether these
22 documents actually exist or not? When looking at the existing registers
23 of documents, the existence of the requested documentation has not been
25 Furthermore, the Ministry of Defence pointed out in all their
1 contacts with the investigators - and I think that that should be noted
2 now as well - is that the fact that some documents are not in the
3 archives is caused first and foremost by the lack of training and
4 education on the part of some military officers of the Croatian army who
5 were supposed to keep documents and to hand them over, but also it is due
6 to the state of war in which the units operated when often the security
7 and safety of documents was neglected in order to carry out the military
8 operation itself as efficiently as possible. After all, in these
9 proceedings some UN officers already stated that they found at certain
10 localities documents of the Croatian army. So we believe that in this
11 way our assertions are not as impossible as the OTP claims.
12 Another thing that is important to point out is that an analysis
13 was made at the Ministry of Defence, and it shows that the OTP bases its
14 estimates on a very small number of documents, namely, for part of the
15 artillery units that were operating in the area of responsibility of the
16 Split Military District. It is for that reason that they infer that the
17 same kind of documents had to be produced in other units too. However,
18 for certain reasons we believe that these assumptions are off-handed
19 ones, and they have not been supported by any documents; rather, there
20 have been no registers showing that such documents were listed.
21 As for these documents concerning artillery operations, there is
22 also a reference to 14 documents which Croatia has already provided to
23 the OTP. On the basis of 14 provided documents, they mentioned that they
24 are still missing, and we find this a bit perplexing; we don't know how
25 this happened. Of course, we are prepared to send those 14 documents yet
1 again, but I would like to remind the OTP that this happened under 723
2 and these are operative reports that the Operations Group Sibenik
3 submitted to the Split Military District.
4 As for the special police, the OTP insists on 204 documents with
5 exact numbers. These documents were requested and marked by
6 investigators when they visited the archives of the Ministry of the
7 Interior. When checking these archives, first of all, part of the found
8 documents were sent in accordance with request 19 -- or rather, there
9 were 19 documents out of the 204 that were asked for. And further on in
10 the ministry, through the efforts made by the ministry, we found an
11 additional 66 documents from this list of 204 documents, and that means
12 that the total number of documents submitted was 99; that is to say that
13 105 are still missing.
14 As for the relevance of this documentation, we can agree with the
15 OTP that these are not relevant documents; however, I repeat that these
16 are documents that were marked by OTP investigators who stayed in
18 thank-you letters, training of divers, refunds of expenses, and so on and
19 so forth, that is to say, documents that are truly unimportant. However,
20 we are therefore even more perplexed by this claim made by the OTP that
21 these are 204 documents that are essential for proving General Markac's
22 culpability. The situation's the same with the 105 documents that have
23 not been submitted. As we went through the registers, we saw what the
24 numbers were, and we realized that out of these 105, 20 refer to
25 personnel characteristics and deployments of members of the special
1 police; 16 to the organization of different courses and advanced
2 training; 14 to the allocation of materiel and technical resources; 6 to
3 other matters; 17 to various payments. So out of 105, 72 or 70 percent
4 are documents of this nature.
5 As for the other part of the request for submitting special
6 documentation, and these are all the documents that pertain to documents
7 received by the office of Markac and Sacic, or rather, the documents that
8 were sent from these offices to third parties, so far we have submitted
9 41 documents pertaining to General Markac and a total of 325 documents
10 pertaining to Mr. Sacic.
11 An objection was raised to the effect that we submitted
12 irrelevant documents, but these are documents that are of the same nature
13 like the 204 that the OTP requested. At the same time, the OTP is
14 challenging the sending of all orders, maps, and other documents
15 pertaining to artillery and special police in the period from the 3rd of
16 August until the 10th of August, 1995, including the list of targets that
17 every artillery unit received, or the chief of artillery, as well as
18 documents that have to do with the positioning of all artillery units
19 including the firing range. I'm quoting this. These are professional
20 expert documents.
21 As for 17 -- 719 (B) dated the 15th of January, 2007, this has to
22 do with Operation Storm, and in this document, in this analysis, what is
23 mentioned is the number of mortars, cannons, howitzers, and missiles that
24 were used and also the number of projectiles, or rather, the amount of
25 ammunition spent. Also, within 546 as far back as the 7th of January,
1 2004, that is to say four and a half years ago and even more than that,
2 the following documentation was sent to the OTP: The operations plans of
3 the sectors of the special police that pertain to Operation Storm;
4 reports of the sector of special police written during the first four
5 days of Operation Storm; the reports and orders signed by General Markac;
6 and the same kind of orders signed by General Sacic; and also the war
7 diary of the forward command post of Gracac; the sector of the special
8 police; and also the report on tasks carry out on the 25th of August,
9 1995, sent by General Markac to General Cervenko --
10 THE INTERPRETER: Interpreter's note: Could the speaker be asked
11 to read slower.
12 JUDGE ORIE: It is general experience here that if you read that
13 your speed of speech goes up and the interpreters ask you to slow down
14 when reading.
15 Please proceed.
16 MR. MARKOTIC: [Interpretation] I apologise, Your Honour.
17 Report on executed assignments for the 25th of August, 1995
18 I mentioned; intelligence reports on internal control of the special
19 police sector dated the 1st of July, 1995, to the 15th; as well as
20 reports of the intelligence and communications centres or resumes of
21 security events from the 1st of July until the 1st of November from
22 numbers 319 on. We believe that a part of the documentation that the OTP
23 still considers outstanding have actually been furnished with this
24 request from the -- dated 2004.
25 I would also like to mention that Annex (E) of the OTP of Request
1 739 refers to the fact that this request has not been implemented at all,
2 but actually, the real situation is a little bit different. Annex (E)
3 comprises Supplement 1 and Supplement 2. Supplement 1 is on page 2 and 4
4 and Supplement 2 from page 7 to 14. In their request for a subpoena, the
5 OTP did not mention that Supplement 2 has completely been provided on the
6 26th of July, 2007, and with some documents from Supplement 1 and
7 additional documents, which the investigators of the OTP marked when they
8 were inspecting the archives of the MUP. But they did they request them
9 officially in their Request 739, but they did request these documents.
10 In reference to the missing documents which have still not been
11 handed over, investigations have been initiated, and they have been going
12 on for some time now. The investigations began from the bottom up
13 because that is how the authorised body of the Ministries of Defence and
14 the Ministries of Internal Affairs believed they would be the most
15 effective. The investigation in the Ministry of Defence notwithstanding,
16 the OTP said that they tried to speak with 15 highly ranked officials of
17 the ministry who refused to be interviewed.
18 I have to note that this was a request of the Prosecution from
19 the 17th of December, 2007, in which these 15 highly ranking officials
20 were referred to as suspects, even though I have to admit because I was
21 at the office at the time it was not clear to us how you could designate
22 a suspect in December 2007 when the UN Resolution 1503 said that all the
23 investigations had to be completed by 2004. We did act pursuant to the
24 request by the OTP, and we did deliver summons to these 15 officers who,
25 using their right as suspects to refuse to be interviewed, actually did
2 Later, according to -- pursuant to an agreement between the OTP
3 and the Defence and shortly before the interviews were to take place, the
4 request of the Prosecution in relation to these persons were modified,
5 and it was agreed that they could be interviewed as witnesses.
6 I also wanted to respond to assertions by the OTP that General
7 Sundov confirmed, who was actually interviewed in the capacity of a
8 witness, confirmed that the documents sought by the Prosecution should be
9 in the central military archives. This assertion by the Prosecution is
10 just partially true. General Sundov actually said that the documents
11 were to have been handled pursuant to the regulations in force and that
12 he was convinced that the bulk of the documents were registered and
13 handed over to the central military archive. But he explicitly said that
14 he could not rule out the possibility that individuals abused their
15 access to the archive, kept documents to themselves, and said that he was
16 speaking only about that part of the documentation that he was
17 responsible for as commander of the Knin Military District.
18 On that occasion, he mentioned the problem of badly trained
19 particular or individual personnel members in the Croatian military,
20 which was actually only in the process of being formed at that time.
21 However, I have to mention that investigators at the defence ministry did
22 interview 44 persons -- actually, 20 persons, while 44 persons were
23 interviewed at the Ministry of the Interior. Therefore, during the
24 investigation into the missing documents, a total of 64 persons were
25 interviewed, and I think that this number speaks for itself, and it
1 proves that investigations were not carried out in such a way as to
2 deliberately prolong them or to avoid interviewing certain persons.
3 As part of the investigations, especially in the defence
4 ministry, and since OTP staff before came out with objections that we
5 were unable to find some maps about war activities during Operation Storm
6 which were published in books of certain high-ranking officers of the
7 Croatian army, interviews were conducted with persons who were directly
8 involved in the preparation of two books which are actually the most
9 important ones and which contain most of the documents. These are books
10 "Sve Moje Bitke," "All My Battles," a book by General Bobetko, and the
11 book by General Gotovina, "Assault, Battles, and Operations," "Napadajni
12 Bojevi i Operacije" of the HV and the HVO. In both cases, persons were
13 interviewed who were directly involved in the work on the book as experts
14 and who confirmed that the maps published in the books were drafted
15 later, especially for the purposes of work on the books; and now these
16 are the maps that we can actually see in the books themselves.
17 If I may summarize, the investigations, they were conducted from
18 the bottom up; and as you can see, a large number of persons were
19 interviewed. Some key persons have already been interviewed or are being
20 interviewed about whom the Prosecution also believes that they are key
21 persons; the investigations are continuing, and interviews are planned
22 with everyone that is relevant for the purposes of the investigation in
23 order to establish the actual state of affairs and to establish the
25 His Excellency Mr. Krnic said that Requests 739, 723 have
1 partially been met. In reference to Request 723, as I already said,
2 documents that were not found were not handed over but that 14 documents
3 were actually handed over but which are still considered outstanding.
4 In reference to Request 739, it needs to be said that the request
5 also included Supplement 1 and Supplement 2 and that Supplement 2 has
6 been implemented in its entirety.
7 As for Supplement 1, it contains eight items, and only Items 1
8 and 2 have partially not been executed and Item 5. As for Items 3 and 4,
9 which relate to records of documents drafted in the office of General
10 Sacic, unfortunately, the register -- document registers have not been
11 found, and so the request was of a descriptive nature. And pursuant to
12 that request, we furnished 325 different documents, and I already
13 referred to that earlier.
14 As for the part of the request by the OTP that relates to
15 intelligent actions from -- intelligence actions from 1996, relating to
16 obtaining documents on actions in Bosnia and Herzegovina, and linking
17 these actions with alleged intentions of the Croatian authorities not to
18 provide documents relating to the Storm action in the same way, I really
19 am unable to find any fact that would link these two activities; and for
20 that reason, I'm not going to comment on this at all. I'm not going to
21 comment on the assertions made in the request.
22 One of the key documents that the OTP refers to is the official
23 note from the 28th of July, 1999, on a meeting held at the Ministry of
24 Justice, which official note was drafted by five officers of the defence
25 ministry. First, I would like to object to the term used in the request,
1 the English term used, "minutes," because these are not actually minutes,
2 but it's an official note, in fact. So the term "official note" or
3 "report" would be much more suitable. In any case, the term "minutes" is
4 inappropriate. The term "minutes" would lead to the conclusion that the
5 controversial assertions in the official note are actually conclusions,
6 which, however, is not the case.
7 I repeat, it's a note signed by five officers, where it is stated
8 that it has been concluded that documents would not be provided that
9 would refer to the state policy of the Republic of Croatia
10 be furnished to the Prosecution, of course, or rather, the orders by
11 General Norac and General Gotovina. The note also states that the person
12 conducting the meeting, deputy justice minister at the time, would inform
13 the Council for Cooperation with The Hague Tribunal about the meeting
14 itself and the conclusions. At the time, the council was the highest
15 organ in the Republic of Croatia
17 This is just an impression on the part of the person who compiled
18 the note is tellingly demonstrated by the fact that this was never - and
19 I repeat - never discussed at meetings of the Council for Cooperation
20 with The Hague Tribunal. Because had that been the case, first of all,
21 it would have been registered in one of the minutes of the council; and
22 secondly, we are sure that the OTP would not omit to deal with these
23 minutes as stated in paragraph 50 of their request, Footnote 28.
24 Also, at paragraph 52 that refers to this meeting, we think that
25 the then-deputy minister of justice is dealt with in an inadequate way.
1 In 2006 and in 2007, she headed the Office of Cooperation with The Hague
2 Tribunal. At that time the former chief Prosecutor, Carla del Ponte,
3 submitted reports to the Security Council of the United Nations in which
4 she pointed out the cooperation of the Republic of Croatia
5 generally on a satisfactory level with the OTP. Therefore, it is unclear
6 how she could have done that if the actual state of this cooperation was
7 the way the OTP refers to it in its request.
8 Your Honours, now we get to the confidential annexes, N, O, and
9 P. So I would kindly ask that we move into closed session for a moment
10 for this purpose.
11 JUDGE ORIE: We move into ...
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: Mr. Markotic, private session would, I take it, meet
14 your concerns, private session meaning that whatever is said is not to be
15 made public, although still the public can see who is in the courtroom,
16 what happens in the courtroom. If you would have any concerns that
17 someone would start lip-reading when you speak, then we could give
18 further instructions as not to show your face when you're speaking. If
19 you insist on that, usually we -- usually in order to protect the content
20 of the hearing we move into private session. But if you think that
21 that's not enough and that by looking at your face people could, then,
22 identify what you said, then I'll instruct the technical staff not to
23 show your face on the screen.
24 As you wish.
25 MR. MARKOTIC: [Interpretation] Your Honour, there is no need to
1 have my face protected; and if I lower my head too often, then you will
2 realize I am taking into account what you said just now.
3 JUDGE ORIE: Yes.
4 Another matter, Mr. Markotic, is that before we move into private
5 session that we are close to a point where we would have to have a break,
6 anyhow. Could you give us any indication as to how much time you would
7 still need?
8 MR. MARKOTIC: [Interpretation] Well, Your Honour, five or ten
9 minutes. That is what I would need in order to finish my remarks.
10 JUDGE ORIE: Then I suggest that since we had a late start, we
11 also have a somewhat later break, that you would then now continue; but
12 for our interpreters and transcribers, I would have to be confident that
13 you really can finish in five to ten minutes.
14 Then we move into private session.
15 [Private session]
11 Pages 6781-6785 redacted. Private session.
20 [Open session]
21 THE REGISTRAR: Your Honours, we're back in open session.
22 JUDGE ORIE: Thank you, Mr. Registrar.
23 Mr. Tieger, please proceed.
24 MR. TIEGER: Thank you, Your Honour.
25 Your Honour, I believe Mr. Markotic invoked the previous
1 Prosecutor's name in connection with impressions about the level, degree,
2 and nature of cooperation of the Croatian authorities. I think it's
3 informative to appreciate that in 2000, she addressed the Security
4 Council and indicated her hope that all problems would be completely
5 removed but noted in particular that when it comes to matters of where
7 level of cooperation and degree of satisfaction is different; and that
8 has, indeed, surfaced repeatedly and characterizes much of the
9 relationship between our requests for assistance and the responses.
10 Now, that is not to say, of course, that it's the -- it has been
11 the Prosecution's claim in its submissions that a level of stonewalling
12 equivalent to what existed in the period between approximately 1996 and
13 2000 persisted in its entirety. Indeed, had that been the case the
14 repeated assurances by the Croatian authorities to the Office of the
15 Prosecutor that the documents we sought were being investigated, that
16 sincere efforts were underway to locate those documents would and could
17 only have fallen on deaf ears. But we continued to work with Croatian
18 authorities in the expectation that their efforts would indeed be
19 meaningful --
20 THE INTERPRETER: The interpreters kindly ask that all
21 microphones not in use be switched off. Thank you.
22 MR. TIEGER: -- and sincere.
23 And in that respect, I must note that it was unexpected to hear
24 the assertion that the Prosecution's estimate in Annex C of the
25 approximate number of pages of artillery documentation that would have
1 been created and has not been produced is speculative because no one
2 really knows whether these documents actually exist or not. The
3 Prosecution's request for those documents, as the Croatian authorities
4 well know, was grounded on essentially a three-fold rationale, which was
5 identified in our submissions and clearly identified to the authorities,
6 number one, that those documents were a pre-condition for an artillery
7 assault, particularly one of this scale; number two, the guide-lines
8 prescribed the documentation that is required; and number three, the
9 exemplars that we do possess reflect the compliance with those prescribed
10 guide-lines. For example, the submission by the Republic of Croatia
11 mentioned the 112th Brigade. This is a map of that brigade. This is the
12 kind of document that we say has to be produced, was produced, and should
13 have been presented to us, and yet all too few have been, all too few,
14 which indicate a systemic and systematic problem rather than an
15 inadvertent one. And indeed, when we presented Croatian authorities
16 initially with these circumstances, they acknowledged that the documents
17 should exist, and that is precisely why the investigations were
18 undertaken. Now, we've identified some of the problems with the
19 investigation. I'm afraid that this reflects another basis for the
20 failings of that investigation, and that is apparently an underlying
21 assertion that the documents they purport to look for do not even exist.
22 We've asked the Court in our recent submission to look at the
23 nature of that investigation, and indeed, we did so before; but I think
24 it's important for the Court to examine what's happened recently because
25 as we indicated in our submission, a number of factors clearly indicate
1 the basis for the Prosecution motion and the need for the Court's -- for
2 the order that is requested in the application, and that is the flurry of
3 activity that preceded this hearing and that followed the application as
4 well as the nature of the investigation that was undertaken. As we've
5 indicated, much of the investigative efforts were devoted to simply
6 replicating steps that had already been undertaken and need not have been
7 performed: examining the archives, which we had already been advised had
8 been exhausted; in other words, our repeated and thorough search revealed
9 only the documents that we had obtained. We were told by the appropriate
10 authorities that they were unaware of any other documents in the
11 archives, and yet that is one of the pillars of the ongoing
12 investigation. Similarly, the search for a determination about whether
13 or not documents, artillery documentation, of this type would have to be
14 produced, notwithstanding the fact that Croatian authorities have been
15 previously informed and were informed, indeed, in our motion of the basis
16 for the conclusion that such documentation and at such a level would
17 necessarily have to have been produced.
18 We've also cited some of the other factors that indicate the
19 quality and character of the ongoing investigation. That includes the --
20 not only those who were interviewed and those who were not interviewed,
21 but the nature of the questions that were asked and the nature of the
22 questions that were not asked of those persons who were interviewed
23 during the course of the investigation.
24 Perhaps most significantly, Your Honour, is what has been
25 completely ignored, not only during the course of the investigation as
1 we've asserted but, indeed, during the course of this hearing, and that
2 is that the most single likely explanation for the systematic absence of
3 the documentation has been utterly overlooked, and the Croatian
4 authorities continue to turn a blind eye to the most likely source of the
5 absence of the documentation in the Croatian archives if that is indeed
6 the case. And that is the lengthy, systematic, government-run cover-up
7 of documentation that threatened the perceived national interests of
9 of those efforts to the court. Those were the efforts that were
10 undertaken under the guise of various operations known as Operation or OA
11 Hague, OA Put, OA Arhiv, and it's important for the Court to understand
12 the almost military -- well, it was, indeed, military precision because
13 these were conducted under the auspices of the Ministry of Defence and
14 the foreign intelligence service, operations which, as indicated in a
15 document sent by the assistant minister of defence for security and
16 information to the then-president of Croatia, involve such things as
17 gathering, processing, and protecting documentation that threatened
18 Croatian indictees or potential indictees or Croatian national interests
19 because those were perceived as -- they said explicitly, as ultimately
20 potentially being linked to the top leadership; operations that engaged
21 in efforts, and I'll quote, "When HVO archives became a serious problem
22 in the course of preparation of General Blaskic's defence with respect to
23 the substance of the subpoena and ICTY's requests involving HVO
24 officials, this service in cooperation with the HIS took action and
25 measures to protect the HVO archives."
1 And there are documents which demonstrate how - again, with
2 military precision - in contrast to the claim that inadvertence or
3 clumsiness or lack of training resulted in the absence of documentation
4 were gathered up and were transferred from central Bosnian archives to
6 and the OTP made requests for those documents, they were denied.
7 Those efforts included providing direct protection to people who
8 were the subject of indictments, that is, hiding them; it included
9 planting agents in the ICTY and secreting original documents from the OTP
10 for counter-intelligence purposes; and it included planting stories in
11 the media in the hope of embarrassing the ICTY. Those are just some of
12 the factors involved and part of the systematic effort to prevent
13 documentation deemed harmful to Croatian indictees or potential indictees
14 or the Croatian national interests from coming to the attention of the
15 ICTY. And yet, despite the fact that we are aware of this because of
16 documentation that came from Croatian authorities - and they are fully
17 aware of this operation and, indeed, it's been published in the
18 media - you don't hear one word about any effort in the course of these
19 investigations to pursue the most obvious lead of all.
20 JUDGE ORIE: Mr. Tieger, what you just said, is that still
21 focusing mainly on the period until 2000 or -- because you started saying
22 1996 to 2000, and then you gave, well, some strong allegations. Would
23 you say that the focus and the emphasis is on that period or --
24 MR. TIEGER: I'd like to make our position clear, Your Honour.
25 It is crystal clear that those efforts were engaged in between 1996 and
1 approximately 2000. What happened thereafter, I cannot assert with the
2 same level of confidence, and I would not do so. What I do know and what
3 the OTP does assert is the following, that either those efforts have
4 continued or if they have not, Croatian authorities are currently turning
5 a blind eye to the fact that they occurred and are wholly unwilling to
6 pursue those people who engaged in those efforts in the past. Now, one
7 of the reasons we went into closed session and one of the reasons the
8 document that was -- the documents that were the subject of the closed
9 session discussion were presented to the Court is because they suggested
10 that some of the efforts that had previously been undertaken might
11 persist. I'm not making that allegation, but what I do say is the longer
12 this investigation goes on -- the longer the investigation did go on
13 without any effort to address that reality, the more it suggested
14 acquiescence, either acquiescence with those previous efforts or
15 essentially sliding into precisely the same effort.
16 And in that regard, Your Honour, I'd like also to address the
17 1999 minutes which have been mentioned.
18 JUDGE ORIE: Annex M?
19 MR. TIEGER: Sorry, Your Honour. Just one moment.
20 JUDGE ORIE: You're referring to Annex M to the motion?
21 MR. TIEGER: I believe so that's correct, Your Honour.
22 JUDGE ORIE: Yes.
23 MR. TIEGER: The assertion has been made, and I think -- I'm
24 focusing for the moment on those minutes because in some respects they're
25 particularly telling about the nature and character of the ongoing
1 investigative efforts. The assertion was made that those -- the
2 recording of that set, the conclusions from those minutes, are
3 meaningless because they were never discussed at meetings of the Council
4 for Cooperation; and therefore, I think the suggestion was made to the
5 Court that they're some form of speculation and are untrustworthy for
6 that reason.
7 As it happens, however, two days later, on July 30th, 1999, there
8 was a submission to the Office of the Prosecutor by Dr. Zvonimir
9 Separovic, the then-minister of justice, in which we see the
10 implementation of a large number of the conclusions from the July 28,
11 1999, meeting; and I'll provide the Court with the July 30th submission.
12 But what the Court will see is that Item 1 of the submission by
13 Mr. Separevic, that is, the provision of documentation concerning
14 proceedings against Momcilo Perisic conform to Item 2 of the official
15 note; Item 2 (a) - and I'll go through them quickly because perhaps the
16 precise -- the particulars of those won't be so significant and the Court
17 will be able to make its own comparison - also conforms to Item 1 of the
18 official note; item 2 (b), information on criminal proceedings before the
20 conforms to Item 4 and so on.
21 THE INTERPRETER: Please slow down for the interpreters. Thank
23 MR. TIEGER: And in any event, Your Honour, the -- it was
24 interesting in particular to hear reference to meetings of the Council
25 for Cooperation. We'll submit to the Court some of those meetings, but
1 let me recite some of the discussions which indeed did take place at
2 those meetings.
3 At the 31st session of the Council for Cooperation held on
4 October 28th, 1998
5 actually forced to get into the story of war crimes committed by the
6 Croatian army, and the ICTY requests such evidence, and the only thing to
7 do is to negate the right of the Tribunal to process such crimes; also,
8 reference to the fact that "our aim" is to actually postpone the
9 incrimination. At the 32nd session on October 30th, there was reference
10 to the fact that if the council -- or if Croatia dropped the claim that
11 no armed conflict exists, despite the fact -- despite the skepticism
12 about the validity of that claim registered repeatedly by people at those
13 meetings -- well, to drop that, then they would have to answer ICTY
14 requests for plans, movement of troops, et cetera. And "We have already
15 concluded that we did not want to give them that and that is why we went
16 for the unarmed conflict strategy."
17 And at the 33rd session --
18 JUDGE ORIE: Mr. Tieger, do we have to go into -- it's clear that
19 you're quite critical about what happened then, and you say you have some
20 material about that, whereas to some extent the representatives of the
21 Croatian government have said that there has been a certain period of
22 time -- I think let's focus on today -- it's clear that you have a
23 different memory of what happened in the past and that you can more or
24 less offer and say, We have material to support that.
25 MR. TIEGER: Then let me focus in conclusion, Your Honour, on
1 something that just happened, and that was the investigation into those
2 28 July 1999
3 will note from the submission, those --
4 JUDGE ORIE: It's clear that those who were there said this does
5 not reflect what --
6 MR. TIEGER: Correct.
7 JUDGE ORIE: Yes, that's --
8 MR. TIEGER: And more --
9 JUDGE ORIE: -- in brief.
10 MR. TIEGER: And moreover, those conclusions couldn't have been
11 reached because there was nothing but good-will to turn over documents
12 and cooperate with the ICTY.
13 JUDGE ORIE: That's -- that is as good and as bad of an argument
14 as any self-fulfilling prophecy. It can be true; it cannot be true.
15 MR. TIEGER: Well, it's not true in particular, Your Honour,
16 because one of those persons in attendance was someone who was pivotal in
17 the efforts I described earlier, who was assigned responsibility by the
18 assistant minister for defence in charge of security and information, for
19 protecting -- for gathering and protecting documents and keeping them
20 from the ICTY, and who met in fact with General Blaskic and informed him
21 about the rationale that would be used in saying that -- when gathering
22 up all the documents, protecting them, and then saying to the ICTY, We
23 have no documents. And that in just one moment of the investigation
24 reveals why the Court's intervention is necessary and why the application
25 should be granted.
1 JUDGE ORIE: Yes. This was in your submission. Yes.
2 MR. TIEGER: Your Honour --
3 JUDGE ORIE: It was in your written submissions, your --
4 reference was made to that, as well, isn't it?
5 MR. TIEGER: That's correct, Your Honour.
6 JUDGE ORIE: Yes.
7 MR. TIEGER: And I would be more than happy to supply the Court
8 with the documentation that -- the more specific documentation I just
9 referred to. And finally, I am available for any questions the Court
10 might have, but I wanted to fill my estimate of time.
11 JUDGE ORIE: Thank you, Mr. Tieger.
12 Mr. Misetic.
13 MR. MISETIC: Thank you, Your Honour.
14 Mr. Tieger has raised a point, and I believe I should go directly
15 to the evidence that's in before the Trial Chamber, addressing
16 specifically the point that the Trial Chamber should conclude that the
17 most likely explanation is that there is a cover-up, and if I could ask
18 the registrar to please pull up D152, which is in evidence. It was
19 subsequently made a 92 ter submission by the Prosecution. It is the
20 witness testimony of UNMO officer Alexander Tchernetsky. The specific
21 portion of the transcript wherein the Prosecution made this statement in
22 92 ter submission can be found at the transcript page 3164 starting at
23 line 1, and if we could turn to page 6 in the English of Mr.
24 Tchernetsky's testimony.
25 Starting at the bottom, Your Honour, Mr. Tchernetsky told this
1 Trial Chamber: "Sometime in September 1995, together with another
2 military observer from our sector, I went on patrol, and we wanted to try
3 to get to Grahovo in order to monitor the situation and the dislocation
4 of the Croatian troops there. Not far from Grahovo, we were stopped at
5 the check-point and were not allowed to proceed further. We turned the
6 car and took another road. Some 2 kilometres south-east from V. Mracaj
7 we found the former commanding post" --
8 JUDGE ORIE: Mr. Misetic, are you drawing our attention to the
9 fact that matters were left behind and found, which already is part of
10 the submission by the Government of Croatia, isn't it? They refer to the
11 evidence in this court, and that supports that records was not -- were
12 not kept, and they even --
13 MR. MISETIC: I wasn't aware --
14 JUDGE ORIE: I have to look at it, but I think it was in the most
15 recent --
16 MR. MISETIC: If it did, Your Honour, I only received a copy of
17 that submission this morning, and I have not had the time to go through
18 it, but I am referring -- I was unaware of it, so I haven't read their
19 submission. We weren't served a copy with it until it was appended to
20 the Prosecution's response this morning.
21 JUDGE ORIE: Reference was made at least to -- but it's clear you
22 wanted to draw our attention to the evidence which says that everyone was
23 not always guarding its documents as you would expect them to do.
24 MR. MISETIC: Well -- that's the first point. The second point
25 is I have a vague recollection, although I'm not positive of this, but
1 that there was some inquiry - and I'm not sure if it's part of the trial
2 testimony; it could be part of a supplemental information sheet - that
3 Mr. Tchernetsky was asked, and the Prosecution has tried to locate the
4 documents in the UN archives; and similarly, the Prosecutor's office is
5 having trouble recovering documents from the UN archive. I don't think
6 the Prosecution has made the assertion that because the UN's own archives
7 from this period are - and I will state from our own investigation - in a
8 somewhat chaotic state, that the most likely explanation would be, of
9 course, that there is a cover-up within the UN.
10 Your Honour, I can state as someone who is also working on trying
11 to find relevant documents here that, indeed, it has been our experience
12 that the archives in the Croatian state archive are not in a perfect
13 state. There are missing documents, and we have had to work around that
15 I would also just like to add that -- two points. One is that to
16 the extent that there is an allegation being made that there is a
17 cover-up to protect General Gotovina. Obviously, we reject that
18 assertion. I think we can for the sake of argument say that the level of
19 cooperation in this case between a state and one of its own accused has
20 been probably a model at this Tribunal. And finally, with respect to a
21 procedural matter for future, a problem that arises in this context, and
22 specifically concerning what the Republic of Croatia
23 field, whatever the Trial Chamber decides to do there is the problem that
24 some of the people that the Croatian police are now interviewing are
25 witnesses of the Defence. To the extent that the Croatian government has
1 a legitimate interest in conducting an investigation to recover its own
2 state documents, obviously, we have no objection or problem with that.
3 We would be concerned, however, that to the extent that those police
4 investigations go outside the scope of looking for documents and start
5 going into matters concerning their assistance to the Defence - in
6 particular, work product, because some of these people as referenced in
7 the submission were artillery officers - we are preparing documents with
8 them for the purposes of this litigation, and we believe that those
9 documents should in no way be submitted either to the Croatian
10 authorities or to the Office of the Prosecutor to the extent they are
11 documents that have been created since 2006, let's say, for purposes of
12 this litigation, and there should be specific instructions on how far
13 that investigation should go because we would consider that to be work
14 product under Rule 70, us working with our own witnesses.
15 JUDGE ORIE: Yes. That is an interesting issue which needs
16 further thought, to say the least.
17 MR. MISETIC: Yes, and that's why I wanted to raise it right now,
18 Your Honour. It's a concern that I had.
19 JUDGE ORIE: It's on the record. It's on the record.
20 [Trial Chamber confers]
21 JUDGE ORIE: We have a -- quite a complex of detailed
22 information. We might not be able to digest everything immediately;
23 therefore, it might be too much. Nevertheless, focusing on some of the
24 main lines, I would have a few questions.
25 The first question, Mr. Krnic, is the following: In your
1 introductory observations, you said, Well, when we were not during a
2 certain period of time as cooperative as one -- as we are now and as we
3 could be expected to be, you said, But Croatian parliament decided that
4 this would be the course. I wondered, it's a legal issue, whether
5 Croatian parliament could take any decisions that would relieve the
6 Republic of Croatia
7 MR. KRNIC: [Interpretation] Your Honour, what I said I would now
8 like to clarify. The Croatian Assembly or the Croatian parliament, in
9 its resolution on cooperation with the ICTY in Den Haag, in its decision
10 of the 5th of March, 1999, set out from the assumption or decision, I
11 quote, that: "In view of the legitimacy of the anti-terrorist actions on
12 one's own state territory, and we're talking about the military action
13 Flash and Storm, the Croatian Assembly believes that individual crimes
14 committed in connection with that are a matter exclusively for the
15 Croatian justice system."
16 In such historical moments, and now we're talking about 1999, the
17 Croatian state did not recognise the jurisdiction of the International
18 Criminal Tribunal for the former Yugoslavia
19 operations, considering them to be conflicts of an internal nature. In
20 its declaration on cooperation with the International Criminal Tribunal
21 for the former Yugoslavia
22 Croatian parliament stated, I quote, that: "The Republic of Croatia
23 not bring into question the right of the Tribunal to establish
24 responsibility for crimes committed during and immediately after the end
25 of the homeland war and will insist that the International Criminal
1 Tribunal in its proceedings processes all of those responsible for war
2 crimes on the territory of the former Yugoslavia."
3 So this was a legal and political question, and I'm speaking
4 about 1999 again. The impunity of those who committed the crimes was not
5 something that was being considered, but the belief was that these crimes
6 would be exclusively in the jurisdiction of the domestic courts.
7 JUDGE ORIE: Yes, I do understand, and to some extent you have
8 answered my question in -- to some extent in the affirmative, that where
9 the limits of the jurisdiction of this Tribunal are you say is for the
10 Croatian parliament to decide and not for the Tribunal. That's more or
11 less the implicit message in such a -- in such a decision. But let's
12 not -- I just wanted to -- since you briefly referred to the Croatian
13 parliament reaching a decision, you said, which the government was
14 absolutely duty-bound to follow.
15 Now, I have one other question. Perhaps, Mr. Markotic, you are
16 the one who could answer that. You have given us a number of 64
17 interviews, a lot of names we find in your submissions of the persons
18 being -- that have been interviewed or are still to be interviewed or
19 whose interviews are still to be continued. Could you tell us what
20 was -- have you recorded the dates of those interviews? Because
21 apparently, one of the issues raised by the Office of the Prosecution is
22 that you became active only at a certain stage.
23 Could you tell us, when was the first of these 64 interviews
24 you're referring to, when was that conducted and ...
25 MR. MARKOTIC: [Interpretation] Your Honours, this is the
1 situation with the interviews. The Ministry of Internal Affairs
2 interviewed 44 people, and 20 were interviewed in the defence ministry.
3 In the defence ministry, 40 informative talks were conducted until
4 February 2008, a few months before the Prosecution requested that a
5 binding order be issued. The other interviews were conducted after June
6 2008 when another 18 persons were interviewed at the defence ministry and
7 4 people at the Ministry of the Interior.
8 We said before that information talks were conducted at the
9 Ministry of Defence, but we didn't mention the names of those who were
10 interviewed. In our document of the 14th of July, which you will have an
11 opportunity to see, all the names are reported and the times of the
12 interviews. We also have reports or notes recording all of those
13 interviews and up to February -- of all conversations, interviews
14 committed up to February 2008.
15 JUDGE ORIE: Yes. Have you provided the Office of the Prosecutor
16 with the reports or the summaries or the transcripts, whatever is there,
17 of these interviews?
18 MR. MARKOTIC: [Interpretation] We informed the Prosecution that
19 the interviews had been conducted and, in brief, the results of these
20 interviews, but we did not furnish them with the actual transcripts of
21 those interviews.
22 JUDGE ORIE: Yes. Would you have any problem in doing so?
23 Because it seems that there is a rather tense situation between a lack of
24 trust in your honesty, to say the least, by Mr. Tieger, whereas you say,
25 We stress that we do sincerely our utmost best to reach the best possible
1 results. Would this be a matter which you could share with Mr. Tieger?
2 MR. MARKOTIC: [Interpretation] Of course, some of those
3 transcripts would first need to be looked over and then provided, but the
4 OTP didn't ask for the transcript but for the status of ongoing
5 investigations, to which we responded. Of course, I am sorry that there
6 is a certain degree of distrust on the part of the OTP, but again, as we
7 heard from Mr. Tieger this is based on the period before 2000. Now we're
8 in 2008, and we can provide this. Of course, we need to receive the
9 appropriate request from the Prosecution, and then we would be able to
10 provide this.
11 JUDGE ORIE: I didn't hear Mr. Tieger say that it was based
12 exclusively on the period until 2000. He has explained that
13 sufficiently, I would say, but I appreciate that you refer to a period on
14 which he extensively sought to inform the Chamber.
15 There is another matter. We have looked in private session to
16 the -- to two documents that were provided to us by the Office of the
17 Prosecution. You've commented on those. We after that, and we were not
18 familiar with that, we heard about a written explanation of what that
19 material was aiming at or at least the -- what was described in this --
20 in these documents, what these activities were aiming at. Here in this
21 courtroom, the status of these documents have been subject to some
22 discussion. They have been put to us; they have been commented upon.
23 Would you have any problem in the Chamber considering the issue, best
24 efforts against not-good-enough efforts, because that seems to be part of
25 discussion, that we look at that material? Would you have any problem
1 with that? But then, of course, we would like to look at the material to
2 the comments you've given in private session, also to look at the written
3 explanation, and of course, we've heard the interpretation of this
4 material by Mr. Tieger.
5 Would that meet any objection by the Government of Croatia if we
6 would look at all this material?
7 MR. MARKOTIC: [Interpretation] Your Honours, in closed session we
8 discussed two documents that are referred to in Annexes N and P of the
9 Prosecution's request, and I exclusively referred to them when I spoke.
10 Since we're talking about copies of the documents that are now accessible
11 to the Court, I assume that there will be no problem to show the
12 originals, if necessary, of those copies that have been provided. Of
13 course, they're identical. I will still need to consult with the agency
14 that drafted the documents, but we can furnish all the documents that I
15 referred to when I cited the documents, and that is actually the response
16 or the responses of Croatia
17 to carry out similar activities as requested in the incriminating
18 document from Annex P of the request for the issuance of the binding
20 JUDGE ORIE: Well, of course, the Chamber would not oppose if you
21 would send us documents, requests you received earlier from the
22 Prosecution you referred to. However, the focus of my question was,
23 these two documents we discussed, these are the annexes - let me just
24 check them again - it's O and P, Annexes O and P to the initial request,
25 whether we look at that in order to -- as part of our preparation in
1 reaching a decision; that's one. And then we would then invite
2 Mr. Tieger, also, to provide us with what apparently is a written
3 explanation about the oral explanation.
4 Mr. Tieger, I'm a bit hesitant because if it's not recorded,
5 audio-recorded, I mean, then, of course, you would get perhaps
6 information which might not be shared by all those who took part in such
7 conversations, but at least to have a look at the written explanation the
8 Croatian government has given to the OTP about these two annexes, O and
10 MR. MARKOTIC: [Interpretation] Your Honour, it seems to me that
11 along with Annexes O and P we're talking about this official note, as
12 well, that Mr. Tieger referred to today, and in relation to that he
13 mentioned the statements made by some Croatian officials in 1999.
14 As regards these annexes, O and P, there are two documents of the
15 Croatian intelligence agencies that we will try to submit, of course in a
16 manner that we will agree upon with you, Your Honour.
17 JUDGE ORIE: My problem -- you're referring to these documents.
18 We are not -- at this moment, we are mainly interested in considering the
19 content rather than to receive original documents. If you say what was
20 attached as O and P, the content is the same as we find in the original,
21 then we're not insisting on having the originals.
22 MR. MARKOTIC: [Interpretation] Your Honour, the content of these
23 original documents is the same like what is contained in the confidential
24 annexes. I oriented myself -- similar requests of the OTP, and the
25 agency acted in the same way. The documents are the same, originals, and
1 from the annex.
2 JUDGE ORIE: Yes. So we don't have an authenticity problem in
3 relation to the Annexes O and P to the Prosecution's motion. That's
5 Then we would then ask Mr. Tieger to provide us with the
6 explanation given by the -- you refer to the written explanation given by
7 the Croatian government.
8 Then another matter raised. Mr. Tieger, Mr. Markotic says -- you
9 asked for documents being very important, and then although we have not
10 provided all of them, now we have provided at least some of them, and you
11 say they are of hardly any importance. That's part of -- I summarize of
12 course. Do you have a response to that, where you, I think, qualified
13 all the documents as either relevant, highly important, that those
14 produced now are dealt with as not of great importance?
15 MR. TIEGER: I think that's dealt with in the submission, Your
16 Honour, in this sense and in two ways. The relevance of a document is --
17 before it's seen is identifiable by its date, source, intended recipient,
18 general nature. The issue here, as far as the OTP is concerned, is our
19 request for a large number of documents and our receipt of a relatively
20 small number of those -- small percentage of those documents, and those
21 documents that we do receive appear to be of relatively peripheral
23 Now, that's significant on its face, I submit, and it's also
24 particularly significant in light of the pattern of conduct we can see
25 from the documents relating to the treatment of these materials in the
1 past, and that is there were explicit directives to provide the OTP or
2 the ICTY with material that was of a relatively harmless nature and
3 didn't implicate the national interests of Croatia.
4 JUDGE ORIE: Again, that's -- I'm not saying that the past is
5 irrelevant, but that's at least in its full explicit form. That's -- we
6 are looking back a few years from now. Because you also -- you used one
7 argument, saying that -- well, if you think that or if you claim the
8 documents do not exist, it comes as no surprise that if you start looking
9 for them that you don't find them. You use that as an argument as in the
10 context of bad faith.
11 Now, I asked myself --
12 MR. TIEGER: Or, Your Honour, bad faith or the -- I guess,
13 commitment to the effort.
14 JUDGE ORIE: Yes -- well, no commitment to the effort, of course,
15 is a form of bad faith, perhaps, as well.
16 Now, I asked myself if someone believes that a document doesn't
17 exist and he doesn't start looking for it, then he'll be blamed not
18 looking for it. Now, if he says, I don't think it exists but
19 nevertheless, I'll start looking for it; the argument then is, Well, no
20 wonder that you don't find it because you believe they don't exist. So
21 therefore, you must have been looking not seriously for them. I'm just
22 asking myself how fair that reasoning is. Could you comment on that?
23 MR. TIEGER: Well, Your Honour, I would point the Court in a
24 somewhat different direction, and that is when there is a solid basis for
25 asserting that the documents exist, and I tried to articulate that on the
1 basis of the guide-lines and so on, and your interlocutor initially
2 agrees that that reasoning is sound and the exemplars you receive
3 demonstrate that that reasoning is sound, then a reversal of that
4 position strikes me as significant.
5 And Your Honour, if I could raise one minor point. I want to
6 dispel any misimpression that the Prosecution wasn't interested in the
7 investigations. We undertook a mission in May, in fact, to find out what
8 was happening with the investigations and as much as we could learn about
9 what had been done and were explicitly told that we couldn't get that
10 information because it was precluded by law. So if that's not the case,
11 that's a good thing; but the fact that we don't have -- we didn't have
12 information about the investigations prior to the recent submission was
13 not the product of any lack of interest or lack of effort but despite
14 that interest and effort.
15 JUDGE ORIE: Thank you, Mr. Tieger.
16 [Trial Chamber confers]
17 JUDGE ORIE: If there's anything you'd like to briefly add to
18 what has been said, you have an opportunity to do so, but let's try to
19 limit it, Mr. Krnic, to not more than three to four minutes. But if you
20 say everything has been said what should be said, then we'll conclude
21 this hearing.
22 Your microphone is still open, and although it's not translated
23 to us, everyone could hear it.
24 MR. KRNIC: [Interpretation] Your Honour, we absolutely stand by
25 all the assertions we made here. We underline, once again, that we spoke
1 openly, sincerely, and without any ulterior motives. We are also aware
2 of the following, and that is the problem, and that is shown by what the
3 Prosecutor said today unequivocally. The Prosecutor does not want to
4 admit that the additional efforts that we have made have contributed to
5 the finding of certain documents and that we have the best of intentions
6 of continuing down that road. And then, to ask for a binding order, this
7 objectively brings into the question the efforts that are already being
8 made. Why? Because the Prosecutor is insisting on criminal charges
9 against certain persons. Criminal prosecution has a lawful course of its
10 own; it is only going to slow down the efforts that we're making right
12 If I were to say anything else in terms of Croatia giving
13 countless examples of good-will, in terms of cooperating with the
14 Tribunal, that is, that would just be repetition. Therefore, I would
15 like to end my remarks on that note. Thank you.
16 JUDGE ORIE: Thank you, Mr. Krnic.
17 This concludes this hearing.
18 Mr. Krnic, Mr. Markotic, and Mr. Crncec, I'd like to thank you
19 very much to have come to this hearing and present the position of the
20 Republic of Croatia
21 determinations if it would not have heard the views of the state
22 concerned. Therefore, thank you very much for coming.
23 We adjourn and we will resume Monday, not for you but for the
24 case itself. We'll resume on Monday, the 21st of July, at 9.00 in the
25 morning in courtroom I.
1 --- Whereupon the hearing adjourned at 5.31 p.m.
2 to be reconvened on Monday, the 21st day of
3 July, 2008, at 9.00 a.m.