Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12186

1 Friday, 14th January, 2000

2 [Ex Parte Hearing - Defence]

3 [Closed session]

4 [The accused entered court]

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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

Page 12188

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

21 anyone.

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

Page 12189

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

12 conclusion.

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

Page 12190

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

Page 12191

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,

25 please.

Page 12192

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

25 Bosnia-Herzegovina.

Page 12193

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

Page 12194

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

17 available?

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,

Page 12195

1 as it would have had more guidance as to the specific

2 character of the documents that the Defence was looking

3 for.

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

Page 12196

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

7 Yugoslavia."

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.

Page 12197

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

Page 12198

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

4 Yugoslavia.

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

22 criteria.

23 In cases of information provided to the

24 Prosecutor on the confidential basis, Rule 70,

25 paragraph (B), provides adequate safeguards for

Page 12199

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

16 states.

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

Page 12200

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

24 contrary.

25 There rests a burden on the party requesting

Page 12201

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.

Page 12202

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

4 documents.

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

21 documentation.

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,

Page 12203

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

11 burdensome."

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

Page 12204

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

Page 12205

1 locations.

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.

Page 12206

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

Page 12207

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

Page 12208

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

17 procedures.

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

22 government.

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

Page 12209

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

6 produced.

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

Page 12210

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

20 operations.

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

Page 12211

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

Page 12212

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

23 point.

24 MR. VON HEBEL: Sure.

25 The third category of material relates to the

Page 12213

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

9 reports.

10 JUDGE MAY: So the position is exactly the

11 same.

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.

Page 12214

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

8 categories.

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,

Page 12215

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

11 municipalities.

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

20 request.

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

Page 12216

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

Page 12217

1 served in one of the military units present in

2 Bosnia-Herzegovina over a period of more than two

3 years.

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

Page 12218

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

16 Tribunal.

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

Page 12219

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

6 request.

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

11 documentation.

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

Page 12220

1 our observations in relation to request number 4 and

2 6.

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

Page 12221

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

8 communication.

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

20 2.

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

Page 12222

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,

Page 12223

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

11 information.

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

Page 12224

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

Page 12225

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

21 that?

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

Page 12226

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.

Page 12227

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

18 accused.

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

Page 12228

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

Page 12229

1 testimony. We seek not just the ones that the

2 Prosecution has shown us, but the others that exist as

3 well.

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,

Page 12230

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,

13 however.

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

17 destroyed.

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

Page 12231

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

18 cost.

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.

Page 12232

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

8 dilemma.

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

Page 12233

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

Page 12234

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

11 more.

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

Page 12235

1 villages.

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

Page 12236

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.

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Page 12237