1 Friday, 14th January, 2000
2 [Ex Parte Hearing - Defence]
3 [Closed session]
4 [The accused entered court]
5 --- Upon commencing at 10.09 a.m.
13 Page 12186 redacted – in closed session
21 [Open session]
22 JUDGE MAY: Mr. Stein, we have your request
23 and the annex setting out the materials which you
24 seek. They are, if I may say so, a very broad and
25 sweeping kind and would involve a great amount of
1 material. That would be my first reaction.
2 MR. STEIN: We are on the horns of a
3 dilemma. On the one hand, we want to be specific and
4 detailed and precise, and we have tried to be so, as is
5 required. On the other hand, we want to be
6 comprehensive and leave nothing out. So we have tried
7 to bridge the horns of this dilemma by being as
8 specifically clear as we can, given the fact that what
9 we do want covers a two-year period. So I recognise
10 the issue and I recognise the problem.
11 With respect to Your Honour's observations, I
12 think we have tried to be as specific as is possible
13 under the situation. I don't want to repeat, unless
14 Your Honour wants me to, the specifics of what we ask
15 for. I can only be clearer, perhaps, or more
16 repetitious, but I think the papers themselves are
17 completely direct and pointed.
18 Having heard the case for as long as Your
19 Honours have, you certainly understand the relevance of
20 all these documents. I don't think that's contested by
22 I might add, unless Your Honour wants me to
23 go through each of the 13 requests, as I understand the
24 objection, the objection which, in the first instance,
25 in my view, does not particularly comport with Rule 54
1 bis (F)(1) in that it does not identify, as far as
2 possible, the basis on which the claim of national
3 security interests would be prejudiced, really is an
4 objection on two grounds: first, that they don't have
5 certain documents and, second, that UNPROFOR would,
6 indeed, be a proper place to proceed.
7 Jumping ahead, as you know from the
8 discussions you've had with your legal officer,
9 UNPROFOR, in fact, does not object to many of the
10 documents that we have requested. It's a question of
11 finding them and bringing them into a timely
13 So unless Your Honour wants to hear more from
14 me, I can only say that all of these documents, the
15 milinfosums, the daily sit. reports, the battle war
16 diaries, the communications between the units,
17 particularly with regard to the various municipalities
18 which form the basis for this indictment, all of the
19 municipalities from Prozor to Stupni Do, Your Honours
20 have seen over the course of the trial thus far that
21 I'm afraid modern soldiering means spending half the
22 time in the trenches and half the time at a typewriter,
23 because they make reports and the reports are, in fact,
24 the best evidence of what was happening on the ground
25 from the various perspectives of the various
1 participants on the ground.
2 Ultimately, I am sure that Your Honours have
3 concluded that whatever happened in the Lasva Valley,
4 in an abstract, philosophic sense, was recorded on a
5 daily basis from different people from different
6 perspectives, different walks of life, different views,
7 political, military, historical, all of whom were
8 chronologicaling [phoen] the events on a daily basis.
9 The Dutch did the same as the British, the Spanish,
10 other units on the ground, the ECMM monitors, and we
11 simply seek those documents which would be important
12 and relevant in that regard.
13 I might add that to the extent that some of
14 the witnesses, some of the DutchBat witnesses who have
15 testified, relied on their reports, you can see their
16 significance. To the extent that they used their
17 reports in preparing their testimony, you can see the
18 significance. We simply want the units' work product,
19 if you will, for the area and time in question.
20 I don't know how many more ways to say that
21 we all perceive similar events differently. Three
22 people can perceive one event in three different ways.
23 The perceptions in this case differ between the
24 Prosecutor's perceptions and the multi-sided
25 perceptions of the witnesses they have called to prove
1 their perceptions. The best evidence of what was going
2 on in the valley is contained in these contemporaneous
3 journals, notes, infosums, intelligence works, et
4 cetera. With that I'd just as soon stand down and hear
5 what other objections there may be, other than the
6 generic objection which was filed by the government of
7 the Netherlands.
8 JUDGE MAY: Thank you. Mr. von Hebel, we
9 have your letter stating your objection, and including
10 a note of notice of objection under Rule 54 bis. So
11 we've had the opportunity of reading this document,
12 but, of course, if there is anything you wish to add,
13 please do so.
14 MR. VON HEBEL: Thank you, Mr. President.
15 Let me first start by saying that the Netherlands
16 welcomes this opportunity to be heard in relation to
17 this request, as it allows our government indeed to
18 indicate where it is able to submit material and where
19 reasons of national or international security interests
20 or other considerations might create problems for our
21 government to submit such information.
22 It goes without saying, of course, that the
23 Netherlands attaches great importance to fruitful --
24 THE INTERPRETER: Will you slow down,
1 JUDGE MAY: You were asked to slow down by
2 the interpreters.
3 MR. VON HEBEL: I'm sorry. And whenever and
4 wherever possible, the government feels privileged and
5 obliged to give the Tribunal any support possible to
6 contribute to an effective implementation of the
7 difficult task given to the Tribunal, it will provide
8 us as much relevant information as possible in order to
9 allow the Tribunal to establish criminal responsibility
10 for persons who are charged before the Tribunal of
11 serious violations of International Humanitarian Law.
12 Before addressing specific remarks to each of
13 the 13 documents and categories of information which
14 the Defence for the accused has requested, the
15 government would like to make a few observations of a
16 more general character. And these observations relate,
17 in the first place, to the efforts of the Defence to
18 obtain documents and materials from the Netherlands; in
19 the second place, the character of the co-operation
20 between the Tribunal and the Netherlands in relation to
21 the criteria to be applied in assessing the request of
22 the Defence; and in the third place, the position and
23 responsibility of Netherlands military units in the
24 context of UNPROFOR in the area of Central
1 First, in relation to the efforts undertaken
2 by Defence to obtain documents and materials from the
3 Netherlands, we would like to make the following
4 observations. By letter of 31 August 1999, the Defence
5 for the accused Kordic requested information and
6 materials through the Embassy of the Netherlands in the
7 United States in Washington. That letter indicated
8 that without a reaction to the request within ten days,
9 the request would be considered to have been denied.
10 By letter of 10 September 1999, the
11 Netherlands ambassador in Washington, Mr. Vos, replied,
12 and I quote:
13 "Given the nature and sheer volume of the
14 material involved, it will take some time to carry out
15 your request. One important factor in this connection
16 is that quite a lot of the requested of material
17 consists of U.N. documents."
18 The ambassador furthermore indicated that a
19 further specification of the request would be needed,
20 and that the request was passed on to the Netherlands
21 Ministry of Defence.
22 Since this exchange of letters, no contact
23 has taken place between the Defence for the accused and
24 the Dutch Ministry of Defence. The ministry has been
25 further studying the request, but has not had the
1 opportunity of informing the Defence of any progress in
2 this case.
3 The Defence, on the other side, has never
4 taken the initiative to contact this ministry, either
5 in order to specify the request or in order to learn
6 about any possible progress. Although, admittedly, it
7 would have been appropriate for the competent Dutch
8 authorities to provide information to the Defence, it
9 may at the same time be questioned whether the Defence
10 for the accused, in light of Rule 54 bis, paragraph
11 (b)(ii) has taken indeed all reasonable steps to obtain
12 the documents or information from the Netherlands.
13 JUDGE MAY: So that we can follow the
14 position, Mr. von Hebel, are you saying that if the
15 Defence had approached the Ministry of Defence, it may
16 be that some of the documents could have been made
18 MR. VON HEBEL: I'm not sure whether the
19 documents could have been available, but at least the
20 ministry could have informed the Defence of the
21 observations which we might have had in relation to
22 documents. And as the ambassador in Washington has
23 indicated, given the rather broad character of the
24 request, it might have been useful in the co-operation
25 between the ministry and the Defence for the accused,
1 as it would have had more guidance as to the specific
2 character of the documents that the Defence was looking
4 JUDGE MAY: So the Ministry would find it
5 helpful to have known, perhaps, in slightly more
6 detail, what it is that the Defence really want?
7 MR. VON HEBEL: I think that it would have
8 assisted. Whether, in the end, and that is part of the
9 story I would like to come back to at a later stage, it
10 would have made much difference as to the possibility
11 of handing over information, at least we would have had
12 the opportunity, in direct contact with the Defence, to
13 submit our observations and to provide, from our side,
14 any information as to the character of the information
15 requested, and which partly is in our possession and
16 partly is not in our possession. But it would have
17 helped, indeed, the further dealing with the case.
18 JUDGE MAY: Yes. Thank you.
19 MR. VON HEBEL: Coming, then, to the second
20 general observation, the character of the co-operation
21 between the Tribunal and the Netherlands. The
22 Netherlands government would like to make a number of
23 observations. In the judgement of 29 October 1997, on
24 the request of the Republic of Croatia for review of
25 the decision of Trial Chamber II of 18 July 1997, in
1 the case of the Prosecutor versus Blaskic, the Appeals
2 Chamber has indicated that, and I quote:
3 "The plain wording of Article 29 of the
4 Statute makes it clear that the obligation it creates
5 is incumbent upon all member states, irrespective of
6 whether or not they are states of the former
8 This is in paragraph 29 of that judgement.
9 In paragraph 30 of the same judgement,
10 however, the Appeals Chamber continues with the
11 observation that it does see some merit in a
12 distinction drawn by the Prosecutor between, "states
13 located on the territory of the former Yugoslavia" and
14 "third states which were not directly involved in the
15 conflict and whose role, then as now, is that of
16 concerned bystanders."
17 The Netherlands government would like to
18 argue here that also in the present case a distinction
19 could and should be drawn between the request for
20 co-operation with one of the former Yugoslav republics
21 and the request for co-operation with a bystander state,
22 or a third state, such as the Netherlands. This is not
23 so much a strict legal distinction -- Article 29 of the
24 Statute applies, of course, equally to all member
25 states -- but more a practical distinction.
1 After all, the character of the documentation
2 and information requested will, depending on the state
3 requested, in all likelihood have a fundamentally
4 different character. Such information stemming from
5 one of the former Yugoslav republics -- former Yugoslav
6 republic will often amount to important evidence for
7 establishing individual criminal responsibility of
8 persons accused of crimes falling under the
9 jurisdiction of the Tribunal. Such evidence may, for
10 example, relate to the sources or addressees of
11 specific orders to commit such crimes, to change of
12 command, et cetera.
13 After all, as has in the meantime become
14 clear from the functioning of this Tribunal, government
15 officials from several of such Yugoslav republics have
16 regularly been actively involved in the commission of
17 such crimes.
18 On the other hand, however, material
19 requested from a third state will, in all likelihood,
20 not contain such information. Such states have, one
21 may assume, not been involved in the commission of
22 crimes falling under the Tribunal's jurisdiction. They
23 have not given orders to commit such crimes and have
24 not formed part of any chain of command used for the
25 commission of such crimes. It may not ever be excluded
1 that documents from such third states may provide, in a
2 more indirect way, information about the functioning of
3 persons and organs active in the conflict in the former
5 It automatically follows from this difference
6 in character of the information that the criteria used
7 in balancing security interests of part of a state
8 against the interests of the Tribunal, or the interests
9 of parties involved in proceedings before the Tribunal,
10 have to be interpreted somewhat differently. This
11 difference in character also influences the
12 interpretation and application of the four criteria for
13 the issuance of binding orders, applied by the Appeals
14 Chamber in the afore quoted October 1997 Blaskic
15 judgement, and also in the decision of 9 September of
16 last year, on the request of the Republic of Croatia
17 for review of a binding order in the present case under
18 consideration by this Trial Chamber.
19 Finally, also the fact that the present
20 request stems from the Defence for the accused,
21 influences the application of the aforementioned
23 In cases of information provided to the
24 Prosecutor on the confidential basis, Rule 70,
25 paragraph (B), provides adequate safeguards for
1 preserving the confidentiality of such information. In
2 relation to requests for information from the Defence,
3 no such guarantees are provided for in the Rules.
4 The fact that Defence for the accused, in its
5 letter of 31 August 1999, has stipulated to preserve
6 the confidentiality of information requested, does not
7 amount to a similar obligation as rests upon the
8 Prosecutor under the Rules and, consequently, not to a
9 similar guarantee for the state concerned for the
10 confidentiality of the information provided.
11 The Netherlands government hastens to repeat
12 here that in the end, the decision on the application
13 and interpretation of these criteria remains entirely
14 within the powers of the Judges of the Tribunal, and
15 that any such decision is binding for all U.N. member
17 In relation to the question of national
18 security interests, it is the view of this government
19 that a wider margin should be allowed to third states
20 in invoking national security interest than to former
21 Yugoslav republics.
22 The interests of such third states will
23 normally not relate to pieces of information that will
24 assist the Tribunal in establishing criminal
25 responsibility of persons charged with such crimes or
1 in establishing crimes for the non-existence of such
2 criminal responsibility. Almost by definition, such
3 security interests of third states will not relate to
4 the behaviour of persons charged with crimes under the
5 Tribunal's jurisdiction. After all, the persons
6 charged before this Tribunal do not have the
7 nationality of the third state, have not acted on their
8 behalf, and the acts of these persons charged have not
9 taken place on the territory of the third state.
10 Finally, such persons have normally not been in the
11 custody of a third state.
12 As there is therefore, in general, no
13 jurisdictional relationship between the alleged
14 perpetrator and that third state, it will in practice
15 be rather unlikely that such a state will have relevant
16 information that relates to the alleged behaviour of
17 the accused.
18 One may in principle argue here that there
19 may be a presumption that third states will not have
20 material relevant for establishing individual criminal
21 responsibility of persons charged with crimes falling
22 under the jurisdiction of the Tribunal, unless, of
23 course, there exists specific indications to the
25 There rests a burden on the party requesting
1 such material to provide such contrary indications.
2 This also means that if such a third state invokes
3 national security interests, those interests will
4 normally not relate to possible evidence on the
5 criminal responsibility of the accused.
6 The government would furthermore like to
7 argue that the interpretation and application of the
8 four criteria for the issuance of binding orders
9 established in the case law of this Tribunal needs to
10 be seen in a different light when it applies to a
11 former Yugoslav republic, on the one hand, or a third
12 state, on the other.
13 The government would argue, in particular,
14 that the interpretation and application of the second
15 and third criteria may need further clarification.
16 These criteria relate to the requests -- that the
17 request should set out succinctly the reasons why such
18 documents are deemed relevant to the trial and that the
19 requests should not be unduly onerous.
20 JUDGE MAY: Let me just deal with the point
21 about relevance. That is very much a matter for the
22 Trial Chamber, and I think it's been said in other
23 cases that it's not a matter for the respondent
24 governments, because only we know what the relevant
25 issues are.
1 Of course, the second point is one very much
2 for governments to make submissions on, because only
3 they will know how onerous it might be to recover
5 MR. VON HEBEL: Thank you in that respect,
6 and that is also the reason why our observations in
7 relation to the interpretation and application of these
8 criteria we have combined, indeed, in light of the
9 clear case law of the Tribunal that the question of the
10 relevance is an issue of exclusive responsibility for
11 the Tribunal itself.
12 We do think, however, that if a request is
13 directed to a third state, the requesting party is
14 under a stronger burden to indicate the possible
15 relevance of the material for a trial, and in order --
16 therefore with the result that the relevance of the
17 material may be taken into account when balancing the
18 production of material -- whether the production of
19 material would, indeed, be unduly onerous for a state
20 when requested to produce an enormous amount of
22 In relation to this criterion, the Appeals
23 Chamber, in the decision on the requests of Croatia for
24 review of a binding order of 9th September 1999,
25 emphasised that this third criterion is, by definition,
1 a relative one. In paragraph 41 of this decision, the
2 Appeals Chamber argued that, I quote:
3 "It entails a striking of a balance to a
4 need, on the one hand, for the Tribunal to have the
5 assistance of states in the collection of evidence for
6 the purpose of prosecuting persons responsible for
7 serious violations of international humanitarian law
8 and the need, on the other hand, to ensure that the
9 obligation upon states to assist the Tribunal in the
10 evidence-collecting process is not unfairly
12 In this balancing, it is obvious that as soon
13 as the possible relevance of information for the
14 purpose of collection of evidence becomes more
15 doubtful, the production of this information becomes
16 more easily unfairly burdensome.
17 Before providing our comments on the 13
18 categories of information, the government would like to
19 further clarify the presence and role of Dutch military
20 units in Central Bosnia-Herzegovina within the context
21 of the UNPROFOR operation in that area. A complete
22 overview of the Netherlands military presence in the
23 framework of UNPROFOR is provided in an annex which we
24 will provide in writing to the Tribunal. For purposes
25 of the present hearing, however, it suffices to focus
1 primarily on the organisational structure of UNPROFOR
2 and the position of Dutch military personnel within
3 that structure.
4 The UNPROFOR was established by Security
5 Council Resolution 743 of 21 March 1992. It later
6 became known as the United Nations Peace Force, UNPF,
7 and lasted until the North Atlantic Treaty
8 Implementation Force, IFOR, was created in December
9 1995, later followed by the Stabilisation Force, SFOR.
10 The Netherlands was one of many to
11 participate in UNPROFOR and the UNPF, and throughout
12 the operation a variety of Dutch units were deployed in
13 the territory of the former Yugoslavia. These units
14 were present in various locations from the date of
15 inception of UNPROFOR until the end of the operation.
16 Some of these units remained in the area as part of the
17 Netherlands' commitment to IFOR and later SFOR, and
18 some are, in fact, still present in Bosnia-Herzegovina
19 and Croatia.
20 Netherlands participation in UNPROFOR and
21 UNPF was varied and included headquarter staff
22 personnel, signals and communications personnel,
23 transport and logistics units, military police units,
24 infantry units, and military observers. These units
25 operated in a variety of tasks and from a variety of
2 In the same annex, a more detailed
3 description of the kind of personnel, their mandates
4 and their positions, is further elaborated. For
5 purposes of this hearing, however, it suffices here to
6 indicate that the presence of the Netherlands in
7 Central Bosnia-Herzegovina consisted primarily of:
8 one, a logistics and transportation battalion, in the
9 period under consideration, based for most of the time
10 in Busovaca; two, signals and communications personnel
11 present in a different part of Croatia and
12 Bosnia-Herzegovina, including Central
13 Bosnia-Herzegovina; and, three, a small number of
14 United Nations military observers.
15 Of major importance for the response to the
16 request for material by the Defence of the accused is
17 the command and control structure of UNPROFOR, UNPF,
18 and the U.N. military observers, UNMO. In this
19 connection, it is important to make two distinctions.
20 Firstly, there's a difference between
21 administrative command and control and operational
22 command and control. The first type of command and
23 control refers to all matters relating to maintaining a
24 unit, including supply of provisions, personnel
25 rotation, salaries, wages, and the like.
1 The second type of command and control refers
2 to all matters relating to the actual operation of a
3 unit, including its tasks and methods of operation, and
4 often laid down in standard operating procedures. The
5 functioning of a unit in a larger military operation as
6 a whole should be taken into account here.
7 The second distinction which must be made is
8 that the command and control relationships for the
9 UNMOs were different from those applicable to all other
10 Netherlands personnel in Bosnia-Herzegovina and
11 Croatia. The Netherlands maintained administrative
12 control and a command and control over all Netherlands
13 units in the former Yugoslavia, with the exception of
14 the UNMOs, but transferred the operational command and
15 control to the United Nations upon deployment in the
16 theatre of operation.
17 Regional units reported to and were
18 controlled by regional headquarters which, in turn, in
19 the case of Bosnia-Herzegovina, reported to and were
20 controlled by Bosnia-Herzegovina command headquarters
21 in Sarajevo. Bosnia-Herzegovina command, in turn,
22 reported to and was controlled by the UNPROFOR
23 headquarters and the UNPROFOR force commander in
24 Zagreb. UNPROFOR headquarters and UNPROFOR force
25 commanders finally reported to and were controlled by
1 the United Nations Department of Peacekeeping
2 Operations. In other words, the chain of command for
3 UNPROFOR and the UNPF was wholly a United Nations chain
4 of command. National headquarters did not participate
5 in any way or at any point in the UNPROFOR or UNPF
6 chain of command. In the standard operating procedure,
7 for example, such national headquarters are explicitly
8 not included in the distribution lists of operational
9 command and control information.
10 In addition to administrative command and
11 control, the Netherlands, of course, maintains
12 so-called full command of Netherlands units deployed in
13 UNPROFOR and UNPF. This term of art, "full command,"
14 however, refers to the authority vested in the national
15 government to decide whether or not to prolong
16 participation of any or all of its units in any given
17 operation. It does not include, and in fact the United
18 Nations guidelines for peacekeepers expressly
19 prohibits, direct operational control over the units,
20 giving operational instructions to the units, or
21 receiving operational information from the units.
22 Finally, while units and contingents operate
23 as national units under United Nations command and
24 control, UNMOs, on the other hand, operate on an
25 individual basis under the United Nations command and
1 control. Such personnel is, in essence, provided,
2 quote/unquote, "on loan to the United Nations" and
3 enters into a contractual relationship with the United
4 Nations which seems similar to direct employment with
5 the United Nations. The command and control over such
6 personnel is therefore carried out even more fully by
7 the United Nations than in the case of, quote/unquote,
8 "regular units and contingents."
9 The command and control structure is further
10 elaborated in the standard operating procedures issued
11 by the U.N. peacekeeping operations office in New
12 York. These procedures are, in itself, confidential
13 United Nations material, but the government is,
14 however, willing, if the Trial Chamber should so wish,
15 to provide, on a confidential basis, to the Trial
16 Chamber, copies of the relevance parts of these
18 Mr. President, the government would now like
19 to turn to the 13 categories of documents and
20 information which have been identified by the Defence
21 and which are requested from the Netherlands
23 The first material requested by the Defence
24 relates to the so-called battalion war diary for units
25 of the Dutch army. Although this government is aware
1 of the fact that a number of states have a practice of
2 keeping such diaries, it must inform the Tribunal,
3 though, that such diaries have not been kept by any of
4 the Dutch army units in Central Bosnia-Herzegovina in
5 the material period. No such diaries can therefore be
7 The second category of material requested
8 relate to the so-called daily situation reports or
9 equivalent records. Such reports were made by the
10 various regional military units in the area and,
11 according to the standard operation procedure, sent to
12 Bosnia-Herzegovina command headquarters in Sarajevo and
13 subsequently to UNPROFOR headquarters. These reports
14 related to the operational command and control of
15 UNPROFOR and were meant for exclusive use by UNPROFOR.
16 According to the distribution lists for these reports
17 as laid down in the standard operating procedure,
18 national army headquarters were not provided with
19 copies of such reports. The Netherlands government
20 therefore has to inform the Tribunal that no such
21 reports are available within the Dutch administration
22 and no such reports can therefore be produced.
23 But even if the Netherlands government would
24 have such information, it would still not be in a
25 position to provide copies of such reports, as these
1 are normally and mostly U.N.-classified materials.
2 Whether the material might be declassified or provided
3 to a party to a procedure before the Tribunal is a
4 decision which rests entirely with the United Nations.
5 It would seriously undermine the organisation
6 of peacekeeping operations, past, present and future,
7 by the United Nations if U.N. member states and
8 contributing countries would individually decide about
9 a declassification or publication of such information.
10 It is for this particular reason, Mr. President, that
11 the Netherlands government, by letter of 10 January
12 2000, felt obliged to send you a notice of objection
13 pursuant to Rule 54 bis (F) of the Rules of Procedure
14 and Evidence of this Tribunal.
15 As indicated in that letter, the government
16 file does not notice not so much for national security
17 interests of the Netherlands stricti sensu but for the
18 security interests of the United Nations in relation to
19 the smooth and safe functioning of all peacekeeping
21 The United Nations, its member states, and
22 the particular states contributing to peacekeeping
23 operations, must be able to rely on procedures and
24 agreements made in advance. Making public information
25 which was gathered in a confidential way and meant to
1 remain confidential, unless the United Nations, of
2 course, itself would decide otherwise, would undermine
3 the confidence in such procedures and agreements. This
4 would obviously also have an influence on present and
5 future peacekeeping operations.
6 As far as such classified material has, in
7 the meantime, been declassified by the United Nations
8 itself or been used for reports of the United Nations
9 organisation -- or been used for reports of the United
10 Nations organisation not of a classified character,
11 such material is obviously easily accessible to every
12 interested person.
13 The Netherlands government would like to
14 stress here that these observations apply mutatis
15 mutandis to most of the other categories of material
16 requested by the Defence. In order to avoid repetition
17 and save time, this will be briefly indicated wherever
18 this is the case, in the understanding that the
19 arguments just presented will equally apply to such
20 categories of material as well.
21 Finally, in relation to this second category
22 of material requested, the government would like to
23 observe that the request of information, as such, is
24 formulated in rather general terms. A further
25 specification, at least in time, of the relevant
1 reports requested would have been appropriate.
2 In light, for example, of the indictments of
3 the two accused in this case, the Netherlands
4 government fails to see why material unrelated grationi
5 [phoen] de temporis to the indicted offences, that is
6 to say, after March 1994, might be relevant for the
7 Defence of the accused. Also, this argument applies to
8 most of the other information requested by the Defence
9 for the accused.
10 The Defence furthermore does not provide any
11 reasons why this request number 2 is formulated in such
12 broad terms and why the request apparently could not be
13 formulated more precisely, and furthermore does not
14 provide sufficient information on the question why such
15 documents are deemed relevant to the trial.
16 JUDGE MAY: That's very much a matter for
17 us. We've heard much evidence about documents of
18 various sorts, and we really are in the best position
19 to judge that.
20 If you could go on, Mr. von Hebel, to the
21 other matters. If the same argument applies as under
22 paragraph 2, perhaps you could just briefly make that
24 MR. VON HEBEL: Sure.
25 The third category of material relates to the
1 military information summaries, or so-called
2 milinfosums, and equivalent records. The argument as
3 to the security interests involved relating to the
4 material covered by number 2 applies mutatis mutandis
5 to this category of material. This material is also
6 classified United Nations material, and according to
7 the standard operating procedures, the distribution of
8 milinfosums is identical to those of daily situation
10 JUDGE MAY: So the position is exactly the
12 MR. VON HEBEL: It's exactly the same,
13 indeed. Also the request for this third category of
14 material lacks specificity. The comments, on the wide
15 scope, in substance and time period, as I indicated a
16 moment ago, apply equally over here.
17 The fourth category of material requested by
18 the Defence for the accused relates to, I quote, "any
19 written communication, record or document," prepared by
20 Dutch army or intelligence personnel and relating to
21 civil and military command structures of several
22 Croatian entities. As to the access to this category
23 of information, I would like to refer back to our
24 observations in relation to the material requested
25 under number 2.
1 Furthermore, the Netherlands government likes
2 to observe also that this category of material is
3 formulated in even broader terms than the preceding two
4 categories. In light of the case law of the Appeals
5 Chamber of this Tribunal of 9 September 1999, we just
6 wonder whether this request meets the requirement of
7 specificity, clearly prohibiting the use of broad
9 It therefore lies with the Defence to further
10 clarify the scope of this request or to justify this
11 broad scope of the request.
12 In addition, as this request number 4 not
13 only refers to Dutch army personnel, but also to Dutch
14 intelligence personnel, government would like to stress
15 here that in the context of UNPROFOR, the military
16 personnel deployed in Central Bosnia-Herzegovina, in
17 the period covered by the request, consisted largely of
18 a transportation battalion and a signals battalion. It
19 does not belong to the mandate of such personnel to
20 undertake intelligence activities.
21 The fifth category of information relates
22 to --
23 JUDGE MAY: Could I make sure I've got the
24 submission on the 4th. Is this in the same category as
25 2 and 3, or may there be documents available there,
1 although you make other points about it?
2 MR. VON HEBEL: It does indeed cover the same
3 categories of information as under 2 and 3, as they
4 relate exclusively to the operational command and
5 control structure of UNPROFOR, Mr. President.
6 The fifth category of information relates, as
7 I indicated, to any written communication submitted by
8 or on behalf of units of the Dutch army to Dutch army
9 headquarters for certain periods of time indicated in
10 the request and relating to offence in certain
12 The Netherlands government first refers back
13 to previous comments as regards the confidential
14 character of the -- of most of the information covered
15 by this category. But here again the request, and in
16 particular the reference to "any written communication"
17 seems again to be broad and lacking specific
18 specificity. The request by the Defence of the accused
19 also lacks any reasoning for the broad scope of the
21 In relation to the specific locations
22 mentioned in the request, the government would like to
23 observe that Netherlands units or personnel were not
24 necessarily present in or near the locations listed
25 during the time periods indicated. The transportation
1 battalion and the signals battalion were present in or
2 operating in the vicinity of Vitez, Travnik, Novi
3 Travnik and Busovaca in the period indicated, and may
4 have been present near Gornji Vakuf and Bugogno in the
5 period indicated as well.
6 To indicate with any degree of certainty
7 whether Netherlands units were present in or near the
8 other locations indicated during the time period would
9 require analysis of every transportation and
10 communication orders given and carried out by United
11 Nations during the deployment of the Netherlands units
12 in UNPROFOR. Also, this kind of information, however,
13 forms part of the operational command and control
14 documents of UNPROFOR.
15 The kind of material requested in the list of
16 materials to be produced under number 6 are by far the
17 most generally and broadly formulated of all
18 categories. It relates to, and I quote, "any
19 contemporaneous official or unofficial diary, journal,
20 or other written record of daily activities and events
21 maintained by Dutch army or intelligence personnel
22 deployed in Central Bosnia-Herzegovina from that date
23 of deployment until 31 December 1994." The material,
24 as can be interpreted, sought here basically relates to
25 any piece of paper prepared by any person who has
1 served in one of the military units present in
2 Bosnia-Herzegovina over a period of more than two
4 My government in this case fails to see how
5 this request can meet the criteria of specificity. In
6 addition, it is impossible for the government to try to
7 get hold of any material of an unofficial character.
8 In our view, a government can only be requested to
9 produce official information which has been produced or
10 received in the course of the exercise of its
11 functions. Any unofficial material, the existence of
12 which might not even be known to a government, can, in
13 all reasonableness, not be expected to be produced.
14 As the official documentation is concerned,
15 here to a large extent the same argumentation should be
16 followed as in relation to the request under number 2.
17 In relation to the intelligence personnel, I
18 would like also, for reasons of time saving, to refer
19 back to our observations under number 4. In one
20 respect, however, the information sought here differs
21 from all previous categories. Given the very broad
22 character in which this request is formulated, this
23 request may also relate to information of a purely
24 housekeeping character, to put it that way. That means
25 information relating to the administrative command and
1 control over the military units deployed in the area.
2 The exchange of such information was not
3 governed by UNPROFOR regulations. UNPROFOR regulations
4 and such exchanges took place between military units in
5 the area of deployment and national headquarters. At
6 this moment, however, the request is, in the view of
7 this government, insufficiently specified.
8 The request, furthermore, clearly lacks
9 succinct reasoning as to the relevance of such
10 information and to the balancing of the relevance of
11 the information in relation to the burden upon our
12 government to produce such documentation.
13 In our view, such an approach of merely
14 requesting such broad categories of information seems
15 to be incompatible with the criteria set out by this
17 In our view, therefore, this information
18 should be considered as to be unduly onerous in
19 relation to the exigencies of the trial.
20 The Netherlands government would furthermore
21 not exclude also, in light of the purely administrative
22 character of such material, that such exchanges of
23 information have never been duly registered and put in
24 archives. Even if such information was registered and
25 archived at the time, and again here, in light of the
1 character of the information, it may very well be that
2 such information has in the meantime been destroyed.
3 The Netherlands government has, however, not yet been
4 able to sufficiently identify and search for such
5 documentation; also in light of the broadness of the
7 Upon request, of course, of the Trial
8 Chamber, the government would be most willing to try to
9 further identify and search for such information and to
10 report back on the possible availability of such
12 In relation to the documentation requested
13 under numbers 7 and 8, documentation relating to
14 photographs or videotape recordings, we would refer
15 back again to our observations in relation to number
16 2. The photo or video material fall within the
17 category of the operational command and control of
18 UNPROFOR at that time. According to the standard
19 operation procedures, even the taking of pictures by
20 persons not explicitly authorised to do so are strictly
21 prohibited, and such -- if the taking of such material
22 was taken, could be punished by the competent
23 authorities within UNPROFOR.
24 Furthermore, in relation to the issue of
25 Dutch intelligence units, I would like to refer back to
1 our observations in relation to request number 4 and
3 The material requested under number 9 relate
4 to any sort of records of the next military working
5 group. This working group was, according to the
6 standard operation procedures, a high-level group for
7 military negotiations with the warring factions.
8 Obviously, this kind of information would fall within
9 the operational command and control of UNPROFOR, and
10 therefore we would like to refer back to our
11 observations and objections under number 2.
12 The information requested under number 10,
13 radio transmission logs of Dutch army and intelligence
14 units, is again a category formulated in a rather broad
15 way. It is furthermore unclear what the Defence means
16 exactly when referring to radio transmission logs.
17 These can be interpreted either referring to the
18 methods of communication between the units in Central
19 Bosnia-Herzegovina and Dutch army headquarters, or to
20 the content of such communications.
21 Since the request relates to communications
22 with Dutch army headquarters, they cannot relate to
23 operational information, as such information was, as
24 indicated earlier, strictly exchanged within UNPROFOR
25 channels. By definition, such radio logs would relate
1 to logistical administrative matters.
2 Given again the purely housekeeping character
3 of the material, the Netherlands authorities have never
4 kept any records of the use of such methods of
5 communication; that is to say, when, where, and between
6 whom matters of communication were used. Furthermore,
7 no records have ever been made of the content of such
9 As to the question of intelligence units, I
10 obviously refer back to previous observations and
11 requests, number 4 inter alia.
12 Finally, Mr. President, the materials
13 requested under categories 11 and 12, the disposition
14 of warring forces maps, or any situation maps, and
15 category 13, the orders of battle and related
16 material. Again the Netherlands government has to
17 stress that such material relates to the operational
18 command and control of UNPROFOR, and therefore refers
19 back to our observations in relation to request number
21 May I come to a conclusion, Mr. President.
22 As stated at the beginning of this intervention, our
23 government welcomes very much the opportunity to be
24 heard on the request by the Defence. The government
25 wants to stress again that it attaches great importance
1 to a fruitful cooperation, and it feels obliged and
2 honoured if it can provide in any reasonable and
3 meaningful way any sort of assistance in the production
4 of material that may contribute to a fair trial for
5 persons prosecuted for responsibility of serious
6 violations of International Humanitarian Law.
7 The Netherlands government was, however,
8 forced here to file objections to the requests, for
9 both pragmatic and principled reasons. The pragmatic
10 reason is that most material, being material relating
11 to the operational command and control of UNPROFOR, is
12 not available to the Netherlands authorities.
13 The principled reason, in addition, is that
14 even if such material would have been available, such
15 material touches upon security interests of the United
16 Nations. And again I would like to reiterate here that
17 the decisions about the possible publication of such
18 material rests entirely within the United Nations.
19 In the analysis of all 13 categories of
20 material requested, only in two instances material
21 might have been involved that does not touch upon the
22 operational command and control of UNPROFOR. In those
23 two situations the requests under number 6 and 10 to
24 material relates to purely administrative, logistical
25 information. Under number 10, however, as explained,
1 these radio logs, whether interpreted in a technical or
2 in a substantial way, were not considered of sufficient
3 importance as to make any records of such logs.
4 Under number 6, apart from the question that
5 the request lacks sufficient specificity, the question
6 should first be answered whether, in light of the
7 criteria, these categories of documentation are of any
8 relevance, and of such relevance as to balance the
9 interests of the state, not to be confronted with
10 unduly onerous requests for the production of
12 In this respect, Mr. President, the
13 Netherlands government would like briefly to refer back
14 to its general observations in this statement,
15 according to which, certainly in practice, in balancing
16 these interests, a distinction should be made between
17 requests directed to any of the former Yugoslav
18 republics and requests directed to any third state,
19 such as in this case the Netherlands.
20 Finally, Mr. President, the Netherlands
21 government would like to express its full confidence in
22 the Trial Chamber, that if the Chamber would, in light
23 of all observations made, decide to issue an order to
24 the Netherlands government for the production of
25 certain material, sufficient time would be given for
1 compliance with such an order.
2 Thank you for your attention, and I apologise
3 for the length of my intervention. Thank you.
4 JUDGE MAY: There is no need to apologise.
5 We are grateful for your assistance in the matter,
6 Mr. von Hebel.
7 Can I deal with two matters. The first I
8 should have dealt with at the outset, and that is that
9 there are only two of us, Judge Robinson being absent
10 for urgent personal reasons, as I hope you were told.
11 What we propose, unless there is any objection, is that
12 we hear your arguments, as we've done. We shall not
13 make any decisions upon them, because we could only do
14 that as a full Trial Chamber.
15 Judge Robinson will, of course, have the
16 transcripts before him and will join in the decision.
17 But, clearly, it is more convenient, since this matter
18 was listed, to hear the arguments today. And unless
19 there is any objection, that is what we propose to do.
20 I take it there is no objection?
21 Could I just, so that I have in mind, really,
22 what you are saying. Effectively, it's this: that you
23 have none of the material available except for diaries
24 which may be available, but for the moment you haven't
25 yet identified that. If there were any orders relating
1 to the specific documents, you would wish or may wish
2 in due course to provide the detail which will be
3 necessary to sustain a national security objection?
4 Would that summarise your position fairly?
5 MR. VON HEBEL: Yes, thank you,
6 Mr. President. I think that in relation to this
7 material which might be -- it relates to request number
8 6 -- if the Court would provide an order to produce
9 such documents, given the non-operational character of
10 this information, at the moment I would think that such
11 information under this category, as long as it does not
12 relate to operational command and control structures of
13 UNPROFOR, would not fall under any objections as to
14 national security.
15 My observation was primarily aimed at
16 indicating that these are rather of a housekeeping
17 character, and I don't see much national security
18 interests --
19 JUDGE MAY: If the Defence were to approach
20 you with a more specific request, you could deal with
22 MR. VON HEBEL: Yes.
23 JUDGE BENNOUNA: [Interpretation]
24 Mr. von Hebel, I believe there is also the fact, to
25 which Judge May has just said, that there are certain
1 documents which you might have on the list, but which,
2 in your opinion, are part of the UNPROFOR, which is
3 a subsidiary body of the United Nations, so that even
4 if you had them, you could not supply them, because
5 they fall under the jurisdiction, because they make
6 part of the security of the United Nations and,
7 therefore, any member state may not really dispose of
8 them freely, because they are part of the United
9 Nations documentation? Did I understand you well?
10 MR. VON HEBEL: Well, thank you for this
11 question. Yes, indeed. Of course it is very difficult
12 in general if -- as long as we do not know exactly how
13 the order or the request should look like, and to give
14 a statement as to national security. But as long as
15 such information would relate to non-operational
16 aspects of our Dutch participation in UNPROFOR, at the
17 moment I do not think that there would be any problems
18 of national security. But here again, in the
19 understanding that they would primarily be of
20 housekeeping character. If it would be more of a
21 general nature relating to our operations of UNPROFOR,
22 of course then we might have a problem. But as long as
23 that is not the case, I do, at the moment, at least,
24 not see any serious problems. Thank you.
25 JUDGE BENNOUNA: [Interpretation] Thank you.
1 JUDGE MAY: Yes, Mr. Stein.
2 MR. STEIN: Thank you, sir. I suppose I
3 should observe that everything in life is a matter of
4 perspective. Imagine if the documents that we seek, in
5 one form or another, if the Dutch conclusion that Dario
6 Kordic had minimal, if any, role whatsoever to do with
7 the events in Lasva Valley. Imagine if they set out
8 with specificity and detail the relationship between
9 the HVO, the HDZ, et cetera, in ways totally different
10 from that which has been presented thus far. Those are
11 the kinds of exculpatory information that we would be
12 looking for.
13 The Prosecution has told us in this case that
14 because of the volumes of information, the massive
15 quantities of information that they have, they have not
16 been able to make a complete search for exculpatory
17 information, or evidence materially favourable to the
19 The perspective that the government of the
20 Netherlands brings to this case is that, from their
21 perspective, we should be asking the provinces of the
22 former Yugoslavia for information. In fact, the most
23 neutral and detached, if you will, observers of the
24 theatre were the foreign observers in that theatre, and
25 their evidence has been the primary bulk of the
1 Prosecution's case.
2 And their evidence, the evidence of the
3 UNPROFOR forces, the British forces, has always been
4 backed up by reports, milinfosums, writings and
5 diaries. And those writings and diaries have contained
6 materially favourable or exculpatory information on a
7 regular and continuing basis. So that the distinction
8 that the Netherlands makes of a third party state
9 versus a participant, while interesting, and used as a
10 subway to start a standard that we would have to mount,
11 doesn't take us, as a practical matter, where we want
12 to go, and where the Court should be going.
13 The United Nations organised an organisation,
14 organised this Court, organised what went on in
15 Yugoslavia by way of the UNPROFOR forces, and various
16 member states joined. And there are documents that are
17 relevant and important to this procedure.
18 If I may be specific going through the 13
19 categories, and I'll be very brief. What they don't
20 have, they don't have, so I'll skip to paragraph 3.
21 The military information sums. or equivalent
22 records are terribly important. I've said that over
23 and over again. They are the best contemporaneous
24 journal of what happened. And the Dutch officers who
25 have testified thus far have relied upon them in their
1 testimony. We seek not just the ones that the
2 Prosecution has shown us, but the others that exist as
4 As to category -- as to request number 4,
5 documentation between and communications prepared by
6 the Dutch army or intelligence personnel deployed in
7 Central Bosnia, describing the command structure of the
8 HVO, HZ-HB, HR-HB. That's the nub of this case. There
9 is massive confusion on the part of the Prosecution as
10 to what these structures are, who were in them, at what
11 period of time, and their relationship to each other.
12 Again, if this is contained originally in the Dutch
13 information and now submitted to the United Nations, so
14 be it.
15 As to paragraph 5, we list the various towns
16 in the indictment, we list the various periods. And,
17 parenthetically, while I am thinking about periods, of
18 course we did ask beyond March of 1994. Your Honour
19 knows there's been evidence beyond March of 1994, where
20 we've taken the evidence and testimony about events of
21 1995. And hence we have not limited ourselves to the
22 period in the indictment, although I would have liked
23 to, because it was my objection that was overruled by
24 Your Honour.
25 But as to the specific towns, Your Honour,
1 I'm sure, will remember -- Your Honours will remember,
2 Prozor was the site of fighting between the ABiH and
3 HVO in November of '92. Gornji Vakuf was subject to
4 numerous Muslim attacks, starting in June of '92.
5 Bugogno, subjected to Muslim attacks, and fell in July
6 of '93. Vitez, obvious. Fojnica --
7 THE INTERPRETER: Could the counsel slow
8 down, please.
9 JUDGE MAY: Mr. Stein, we are being asked,
10 could you slow down.
11 MR. STEIN: I hope the record will reflect I
12 am doing better than when I was at full hyper speed,
14 Fojnica was the site of a Muslim offensive
15 against the HVO on 2 July 1993. And after this attack,
16 70 per cent of the villages in that municipality were
18 Travnik was subject to Muslim attacks and
19 fell in June of 1993. Novi Travnik, included in the
20 amended indictment, the relevance is obvious. Zepce,
21 subject to Muslim attacks in June of '93 --
22 JUDGE MAY: Mr. Stein, we know all of this.
23 The issue is: Were any Dutch personnel there? That
24 was the point which Mr. von Hebel made.
25 MR. STEIN: And of course we don't know
1 unless we ask. And if the answer is no, so be it, but
2 let's have a clear answer.
3 JUDGE BENNOUNA: [Interpretation] Mr. Stein,
4 you are presenting your list, and you say all the
5 documents, any written communication by any and so on,
6 everything, everything. And, you see, a government
7 during a period of so many years, of course, collects
8 everything. But you say here official and
9 non-official, formal and informal, everything that a
10 government has collected over a number of years. That
11 is all the documents relevant for this or that question
12 and concerning your client. This is your approach?
13 You turn to a representative of a country and you say,
14 "We want it all." That is, they have to go to their
15 archives for such-and-such period of time and they give
16 it to you. No mention, of course, of the cost of all
17 of that; that is, the time that goes into it and the
19 And I must say this is a rather peculiar
20 request, when one says "everything," because within
21 that there may be things which concern your client and
22 there may be things that do not concern your client.
23 But you say all the documents which have a bearing on
24 such-and-such a case or on something else, or on
25 such-and-such a person.
1 MR. STEIN: Your Honour, again that's the
2 horns of the dilemma we are on. We want to be
3 inclusive. We want not to be so defined as to say,
4 "Well, you didn't ask precisely for a specific piece
5 of paper. Your category wasn't quite clear and
6 therefore this doesn't fall within it." We don't want
7 that kind of situation. So we on the horns of a
9 We would be perfectly happy to limit this
10 request in paragraph 5 and 6 to references to
11 Mr. Kordic specifically or to the villages that are
12 subject to the amended indictment. But you understand,
13 I hope again, as a matter of perspective, that when we
14 draft these things, we do it with an eye to getting
15 what we seek and that which we perceive there is in the
16 government's hands, yet, on the other hand, allowing
17 ourselves flexibility, if there are a whole category of
18 things, documents, requests, that cover the concept,
19 but we haven't named specifically. And so we can't be
20 accused of, "You didn't ask for it. We are not turning
21 it over."
22 JUDGE MAY: At the same time -- and this is
23 really a glorified fishing expedition, isn't it? You
24 are just going to ask for everything the government has
25 which might help. You don't know what these documents
1 are, in the sense of being able to identify them. You
2 would say you are not in a position to do it, of
3 course. But really what you want is to troll through
4 the documents in the hope that something will turn up.
5 MR. STEIN: There was a time I might have
6 agreed with you. But having read the papers that we
7 have read thus far, at this point in the case we don't
8 want another sea of paper. We would like to be as
9 specific as we can. So while I understand logically
10 you are correct, I am telling you, practically, we want
11 to be -- try to be as narrow as we can.
12 On the other hand, what I foresee is if you
13 grant the request and the parties work together to
14 honour, to try to produce the request, in particular
15 with UNPROFOR, as a practical matter, when we look at
16 the indexes, we see how things are kept, we'll separate
17 wheat from chaff.
18 We'll say this: It's been a rare milinfosum,
19 it's been a rare British document, from any of the
20 British Battalions that we've looked at, that hasn't
21 had something in it that was helpful to one of our
22 multiple issues and our multiple defences; whether it
23 be de facto, de jure, whether it be military necessity,
24 they all have great interest to our case.
25 So, logically, yes, some of these things look
1 like classic discovery requests in a civil case, and we
2 are not trying to proceed that way. When we looked at
3 the specific kinds of documents that we've had thus far
4 given to us by the Prosecution, the Prosecution, having
5 been given the documents by the various member states
6 armed forces, we have always found something useful,
7 that categories popped up, and you can see where we are
8 coming from.
9 Photographs and video recordings, I believe,
10 are obvious on their face. I won't burden them any
12 As to the mixed military working group, that
13 would be paragraph 9, we do have the minutes of those
14 meetings, quite frankly, and we've made much use of
15 them, so the consequence of that is not a particularly
16 high priority.
17 The radio logs are submissions. I accept the
18 representative of the Netherlands' categorisations. I
19 would suggest they could be limited to references to
20 Kordic or the villages that are the subject of the
21 amended indictment.
22 The maps in 11, 12, and 13, situation maps,
23 are all, of course, particularly important to where the
24 forces were on the ground at any given period of time
25 in terms of self-defence and the defence of the various
2 The last thing I will say, because I know
3 we're a tad short on time, is relative to efforts made
4 before filing. Again, it's a perception problem. We
5 would love to spend time meeting, talking, resolving
6 these things without bringing this to the Court's
7 attention. Thus far, we've been able to do that with
8 the government of Great Britain. However, in the press
9 of trial, as we're marching on, you just have to file
10 at some point in time. The discussion started, letter
11 writings in August, and finally by October, as we were
12 nearing the recess, it was time to file and perhaps
13 withdraw. If there had been some substantive
14 discussions afterwards, perhaps these could have been
15 resolved or they could have been resolved now. But we
16 are now at the close of the Prosecution's case. We're
17 going to ask for an order allowing the member states
18 and UNPROFOR to have 60 days to respond. You know our
19 schedule. So the press of events has its own momentum,
20 its own steam and its own life, and sometimes you just
21 have to litigate as opposed to talk, and so we filed.
22 We're still more than willing to work any
23 differences in interpretation out, but at least we need
24 some obvious lever, with the Government of the
25 Netherlands and the other parties present today, to
1 begin the process.
2 JUDGE MAY: Thank you.
3 [Trial Chamber confers]
4 JUDGE MAY: Yes. We'll consider these
5 matters, and we will issue our order in due course.
6 Meanwhile, we'll adjourn now for 20 minutes.
7 --- Whereupon the Ex Parte Hearing
8 concluded at 11:30 a.m.