Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12237

1 Friday, 14th January, 2000

2 [Ex Parte Hearing - Defence]

3 [Closed session]

4 [The accused entered court]

5 --- Upon commencing at 11.55 a.m.

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6 [Open session]

7 JUDGE MAY: The next matter is this: that

8 Judge Robinson is not able to be present, for urgent

9 personal reasons which I hope have been conveyed to the

10 parties. That being so, we cannot, of course,

11 constituted as two Judges, make an order of the Trial

12 Chamber. But what we propose to do is this: to hear

13 submissions today, as it's convenient, the matter

14 having been listed and the parties being before us,

15 rather than putting matters off, to hear submissions

16 today. Judge Robinson will, of course, have the

17 transcript available to him and will participate in any

18 of our decisions. Unless there's any objection, we

19 propose to hear the submissions as we are presently

20 constituted.

21 Is there any objection from anybody?

22 MR. STEIN: None, Sir.

23 MR. McCOURT: No objection, Sir.

24 JUDGE MAY: Thank you very much.

25 The Court has a request from the Defence for

Page 12239

1 documentation, a total of 38 separate requests of a

2 very sweeping nature.

3 The ECMM have told us that they have an

4 initial objection based upon Article 29 of the Statute

5 and our powers to make the orders requested, and in

6 those circumstances it may be convenient, Mr. McCourt,

7 if you were to begin and set out the ground of your

8 objection.

9 MR. McCOURT: Thank you, Your Honour.

10 Before I set out those grounds, I should

11 perhaps recall briefly the circumstances which resulted

12 in ECMM making this appearance before the Tribunal this

13 morning.

14 On the 28th of December, 1999, ECMM received

15 notice of the application before the Tribunal today.

16 ECMM made contact with the senior legal officer of the

17 Chamber to inform her that if instructed by the

18 Portuguese head of the mission, who assumed

19 responsibilities on the 1st of January of this year,

20 that I would represent ECMM before this hearing.

21 I would firstly like to apologise to the

22 Tribunal for not having been in the position to notify

23 the Tribunal in writing of my intention to appear or to

24 submit in advance any written submissions. These were

25 due to circumstances entirely outside of my own

Page 12240

1 control.

2 JUDGE MAY: Mr. McCourt, there is no need to

3 apologise. We are grateful to you for being here on

4 what's been fairly short notice.

5 MR. McCOURT: Thank you, Your Honour. I

6 would also like to thank the Tribunal for having

7 furnished me with a copy of the new Rule 54 bis.

8 Next I would like to refer to the application

9 for issuance of the order which was filed with the

10 Tribunal, as I see, on the 1st of November, 1999. This

11 application is made pursuant to Article 29(2) of the

12 Statute of the Tribunal and Rule 54 of the Rules of

13 Procedure and Evidence, and ECMM wishes to object to

14 the application on four separate grounds.

15 The applicant has referred in his submission

16 to the Tribunal to contacts made with ECMM on this

17 issue, and I would like to inform the Tribunal of the

18 full circumstances of those contacts before the

19 application was made to this Tribunal.

20 I would like to inform the Tribunal that it

21 is correct that a Mr. Turner Smith, on behalf of the

22 Defence, made a telephone call to my office in Sarajevo

23 on the 13th of August, 1999. He informed me that he

24 was representing Mr. Dario Kordic, and he asked for

25 assistance of ECMM in a very general way. He sought

Page 12241

1 access to ECMM records for the period 1991 to 1994

2 insofar as they relate to the Mostar actions, with a

3 view to seeing if it was possible to find any

4 documentation which might be useful to the Defence. I

5 informed Mr. Turner Smith on the telephone that it was

6 not possible for me to grant him the access which he

7 had sought, and to the best of my recollection I also

8 suggested that it would be appropriate for him to

9 direct his request to the Office of the Prosecutor.

10 On the 24th of August of last year, my office

11 received a faxed letter from Mr. Turner Smith, a copy

12 of which I propose to exhibit to the Tribunal. I think

13 I have five copies there. Your Honours will see that

14 in this letter, counsel sought an unspecified number of

15 documents under some 15 separate headings. This list

16 was quite a contrast from the nature of the initial

17 request made by telephone to my office. In fact, this

18 list is of such a general nature that it could involve

19 reports from all over the ECMM mission area on a daily

20 basis covering a period of some three and a half

21 years.

22 You will note that in that letter, on the

23 last paragraph, counsel for the Defence also explained

24 the reasons for his request, and you will note that he

25 stated that he had reason to believe that many of the

Page 12242

1 aforementioned materials may already be in the

2 possession of the office of the Tribunal's Prosecutor.

3 He went on to state that despite the obvious relevance

4 of these materials to the matters at issue, as

5 evidenced by the fact that the Prosecutor has herself

6 introduced selected portions of these materials, he

7 went on to say that the Prosecutor has refused to make

8 full disclosure to the Defence.

9 He went on to express the belief that the

10 Prosecutor's position was not only contrary to both the

11 letter and the spirit of the Tribunal's Rules of

12 Procedure and Evidence, but that to the extent the

13 Prosecutor has already introduced certain of these

14 materials in the case, to withhold the balance of the

15 materials violates the doctrine of completeness. He

16 concluded by saying, "We are therefore obliged to seek

17 to obtain these materials through whatever alternative

18 avenues may be available to us."

19 At the time this letter arrived in my office,

20 I was away on business and also on some leave from my

21 office in Sarajevo, and I returned there on the 10th of

22 September. I replied to Mr. Turner Smith's letter by

23 my letter of the 12th of September, and I would propose

24 to exhibit -- I think I have already given the Court a

25 copy of my reply letter as well.

Page 12243

1 You will note that in my reply letter, I

2 suggested that the Office of the Prosecutor, which had

3 copied some of our archives, and that insofar as any of

4 that material in its possession might be relevant to

5 the case for the Defence, that that matter should be

6 discussed with the Office of the Prosecutor. I also

7 informed the Defence that any material copied to the

8 Office of the Prosecutor from ECMM's archives was done

9 so under the provisions of Rule 70 of the Tribunal's

10 Rules of Procedure.

11 I also informed Mr. Turner Smith that I had

12 advised the Office of the Prosecutor of his inquiry to

13 my office and had requested the Office of the

14 Prosecutor to deal directly with him and in

15 consultation with ECMM.

16 I did mention in my letter that ECMM was a

17 European Union diplomatic mission, and that its

18 archives are confidential, and that it wasn't possible

19 for me to grant him the access he sought.

20 I did, in fact, communicate with the Office

21 of the Prosecutor, and I forwarded to his office a copy

22 of the request from Mr. Turner Smith. I suggested to

23 the Office of the Prosecutor that the matter would be

24 best dealt with between the Office of the Prosecutor

25 and the Defence directly, in consultation with ECMM.

Page 12244

1 Since that time, ECMM has not had any further

2 contact, either from counsel for Mr. Kordic or

3 from The Office of the Prosecutor, about this matter

4 until this date.

5 Nothing further occurred with ECMM's

6 involvement in this matter until I received the

7 notification from the Tribunal of this hearing, which I

8 said was on the 28th of December last.

9 ECMM now proposes that the Tribunal should

10 refuse to grant the order sought by the applicant on

11 four specific grounds.

12 The first ground are based on the fact that

13 the application is made pursuant to Article 29(2) of

14 the Statute of the Tribunal.

15 This Article provides for co-operation by

16 states with the Tribunal and, indeed, the provisions of

17 Article 29 are limited to states.

18 The term "state" is not defined in Article

19 29, nor, as far as I am aware, is it defined in the

20 Statute itself. ECMM submits to the Tribunal that in

21 those circumstances the normal rules of statutory

22 interpretation apply, and that the term "state" must be

23 given its normal, everyday meaning.

24 In my submission to the Court, ECMM could

25 not, under any of the normal meanings of the term

Page 12245

1 "state," be considered to be a state.

2 If one refers to the ordinary dictionary

3 definition of "state," indeed even in the Concise

4 Oxford Dictionary, it is defined as:

5 "An organised political community under one

6 government. A commonwealth, a nation, such a community

7 forming part of a federal republic."

8 JUDGE BENNOUNA: [Interpretation] Mr. McCourt,

9 I think there is no need to go into the details,

10 because, after all, we do know what a state is. I

11 think it will be more interesting for us if you could

12 define for us what the ECMM is, because that is more

13 interesting for us. We do know what a state is, we

14 know what an international organisation is, and perhaps

15 it might be of interest to us -- it would be of greater

16 interest to us -- I don't know if you were able to hear

17 me through the interpretation, so perhaps I could speak

18 in English. [In English] It would be of greater

19 interest for us to know what the ECMM is, because you

20 spoke of a European mission. What is the exact legal

21 status of the ECMM? And don't waste too much time on

22 the concept of the state, because that could take us

23 days and days, without actually achieving our end.

24 Thank you.

25 MR. MCCOURT: The question of what exactly

Page 12246

1 the legal status of ECMM is, is also, I submit to the

2 Court, a rather difficult area of which -- which one

3 could spend rather a lot of time discussing and

4 debating. But, briefly, the ECMM mission was

5 established by the member states of the European

6 Community in 1991, as a result of an agreement

7 concluded at Brioni on the 7th of July, 1991. As a

8 result of this agreement, the European Community member

9 states undertook to establish a monitor mission,

10 initially for the purposes of monitoring Slovenia, to a

11 certain extent Croatia, and with a liaison office in

12 Belgrade.

13 This agreement was formalised legally in the

14 form of a memorandum of understanding signed in

15 Belgrade on the 13th of July between the Yugoslav

16 federal authorities, the separate republics, and also

17 the -- on behalf of the member states of the European

18 Community, 12 as they then were.

19 There was, in fact, no decision by the

20 European Community Council at the time in regard to the

21 establishment of ECMM, nor was there a formal decision

22 by the commission of the European Community in that

23 regard.

24 So, to answer your question, Your Honour, I

25 would submit that ECMM can probably best be defined as

Page 12247

1 being an ad hoc diplomatic mission mounted jointly by

2 the member states of the European Union or, sorry, the

3 European Community at that time.

4 Since the implementation of the Amsterdam

5 Treaty of last year, and the formalisation of the

6 European Union itself, no decision has still been made

7 on the legal status of ECMM. So it would be best to

8 suggest that it is an ad hoc organisation, established

9 for a specific purpose of monitoring in the region of

10 the former Yugoslavia by the member states of the

11 European Community, as it then was.

12 JUDGE MAY: That's your first objection,

13 Mr. McCourt, I take it, to do with Article 29?

14 MR. MCCOURT: May it please your lordship, my

15 first objection is that, under the provisions of

16 Article 29, ECMM is not a state, and that therefore it

17 would be inappropriate for the Tribunal to make such an

18 order under the provisions of that Article.

19 I would submit, accordingly, that the

20 applicant has misdirected his application in applying

21 it directly to ECMM under Article 29, and that ECMM is

22 not a state, and that the Tribunal should refuse the

23 application on that ground.

24 That's my first ground of objection.

25 JUDGE BENNOUNA: [Interpretation] Mr. McCourt,

Page 12248

1 you said in the letter that you have submitted to us, I

2 think, that you gave the documents to the Prosecutor,

3 if I understand your letter correctly -- to the Office

4 of the Prosecutor -- invoking Article 70 of the Rules

5 of Procedure and Evidence; is that correct?

6 MR. MCCOURT: That is correct, Your Honour.

7 JUDGE BENNOUNA: [Interpretation] I read that

8 somewhere. It's in your letter dated the 12th of

9 September, addressed to Mr. Turner. [In English]

10 "Advise you that The Office of the Prosecutor

11 has provided some of our archives and that insofar as

12 any of the material in its possession might be

13 relevant to your case, you should discuss your request

14 with that office. I should also inform you that any

15 material provided by the Office of the Prosecutor from

16 archives was done so under the provisions of Rule 70 of

17 the Tribunal's Rules of Procedure."

18 [Interpretation] What do you mean, that this

19 was done under the provisions of Article 70? Could you

20 tell us, please, what you meant by saying this in your

21 letter?

22 MR. MCCOURT: Your Honour, by referring to

23 Article 70, this is an agreement that was reached

24 before my time in ECMM, between The Office of the

25 Prosecutor and ECMM, I think in 1996, whereby access,

Page 12249

1 not unlimited access, but access to the archives of

2 ECMM was granted to The Office of the Prosecutor.

3 The office was permitted to copy the

4 archives, but those copies were subject to the matters

5 not subject to disclosure under the provisions of Rule

6 70 of the Tribunal's Rules of Procedure and Evidence.

7 By this it was intended that if The Office of

8 the Prosecutor wished to proceed and use any of those

9 materials in its Prosecution of cases, that it would be

10 necessary for the Tribunal to consult with ECMM again

11 about the specific documents it proposed to use, and

12 that ECMM would consider whether it had any further

13 objections to such documents being put in evidence, and

14 if not, the Tribunal would be forwarded the -- rather,

15 I should say, that the Prosecutor would be authorised

16 to use those documents for the purpose of the

17 Prosecution.

18 JUDGE BENNOUNA: [Interpretation] Therefore,

19 there was an agreement between The Office of the

20 Prosecutor and the ECMM. As far as I understood, the

21 ECMM is, in fact, the European Community. It doesn't

22 have legal personality as such. And when we address

23 the ECMM, we are actually addressing the European

24 Community, which has since become the European Union.

25 And you yourself, in order to come here, you asked for

Page 12250

1 authorisation from the current presidency of the

2 European Union, which is held by Portugal, to come

3 here. So you are part of the European Union, which is

4 a regional organisation, not in the sense of the

5 charter, but it is an organisation of a regional

6 nature. Therefore, there was an agreement between you

7 yourselves and the Prosecutor in 1996.

8 MR. MCCOURT: Your Honour, the position is

9 that, as I understand it, a legal distinction must be

10 drawn between the European Community's Monitor Mission

11 established and run by the member states, in particular

12 by the member state which is holding the presidency for

13 the time being of the European Union, and that a legal

14 distinction must be drawn between that organisation and

15 the European Community itself, and also between the

16 European Union and the Monitoring Mission, that these

17 are, as I understand it, separate entities in law, and

18 that the basis for the establishment of ECMM is not

19 that it is an official organ of the European Community

20 as such, but that it was an ad hoc agreement put

21 together in 1991 by the member states. If it were an

22 EU organisation, one would expect it to be funded and

23 staffed by the European Union itself. The reality is

24 otherwise.

25 The head of the mission is appointed by the

Page 12251

1 country which holds the presidency for the time being,

2 and at this time that is a Portuguese ambassador. The

3 staffing of the Monitor Mission is provided by the

4 member states directly. Each monitor is appointed by

5 his own government, and the costs associated with that

6 are borne by the member state sending the monitor.

7 So the European Union doesn't fund, finance,

8 or manage the organisation itself.

9 This may, of course, change in the future,

10 but for the time being that is the present

11 arrangement.

12 JUDGE BENNOUNA: [Interpretation] Therefore,

13 if I follow you well -- that is why you are here,

14 anyway, to provide some clarification -- the ECMM was

15 founded by an agreement -- I wouldn't call it an ad hoc

16 agreement. It's just an agreement -- in 1991 between

17 the European states, who were members of the European

18 Union at the time. Could you provide us with a copy of

19 that agreement from 1991 for the Court, established by

20 the European Union, as well as the agreement on

21 cooperation with the countries in the region that you

22 just referred to that followed the agreement of 1991?

23 So we would need the documents that you have mentioned

24 for the needs of this Court.

25 MR. McCOURT: If it please the Court, I

Page 12252

1 propose to exhibit a copy of the relevant memorandum of

2 understanding in respect of the Mission's activities in

3 Bosnia-Herzegovina associated with my second objection

4 to the granting of the order sought by the applicant in

5 this case.

6 I should, of course, refer back to what Your

7 Honour has said about the European Union in 1991, and

8 of course there wasn't such an entity at that time.

9 There was the European Community, which is legally

10 separate and distinct from the European Union, which

11 came into effect, as I understand it, with the

12 Amsterdam Treaty, and the legal distinction must

13 continue to be drawn between the two.

14 As regards the agreement in 1991 to establish

15 the Mission, there was no signed agreement, as such, by

16 the member states. The only document upon which the

17 existence of the Mission was based at the time was the

18 memorandum of understanding with the host parties in

19 the region. That was signed on behalf of the member

20 states by a representative of the country which held

21 the presidency at that time.

22 I can produce to the Court a copy of not the

23 initial memorandum of understanding, which didn't

24 involve Bosnia at all, but to recap briefly on the

25 circumstances at the time, the Mission was initially

Page 12253

1 established to deal primarily with Slovenia, as I said,

2 and that was the first memorandum of understanding.

3 That particular crisis was resolved rather quickly, as

4 you will recall. However, the situation in Croatia

5 deteriorated, and there was a second memorandum of

6 understanding signed to expand the Mission's activities

7 into Croatia. This memorandum was signed on the 1st of

8 September, 1991. A third memorandum of understanding

9 was signed on the 1st of October, 1991, to establish

10 the Mission's activities in what was then the Republic

11 of Bosnia-Herzegovina within the region. That is now,

12 of course, Bosnia and Herzegovina since the Dayton

13 Agreement times, and I would submit that in the context

14 of the Defence application in respect of documents

15 relating to the Bosnia and Herzegovina area, the

16 relevant MOU, or memorandum of understanding, is that

17 which was signed on the 1st of October, 1991, and I

18 propose to exhibit to the Court a copy of that

19 memorandum.

20 JUDGE BENNOUNA: [Interpretation] Very well.

21 Thank you, Mr. McCourt. But if you have a copy of the

22 agreement which you shared with the Prosecutor, it

23 would be welcome by the Chamber if we could have a copy

24 of that document as well, please.

25 MR. McCOURT: If it please Your Honour, I'm

Page 12254

1 not in a position to produce to the Tribunal a copy of

2 that particular one at this time. I don't have it with

3 me.

4 JUDGE BENNOUNA: [Interpretation] Yes, but you

5 could have it sent to us.

6 MR. McCOURT: Yes, of course. I will do

7 that.

8 JUDGE BENNOUNA: [Interpretation] So, in fact,

9 there was an agreement with the Prosecutor, with the

10 Office of the Prosecutor, and that is how you invoked

11 Rule 70. Did you not plan to have the same agreement

12 with the Defence as the one you had with the

13 Prosecution?

14 MR. McCOURT: Your Honour, no agreement has

15 been concluded with any party, other than the Office of

16 the Prosecutor, in regard to access to ECMM's

17 archives.

18 JUDGE BENNOUNA: [Interpretation] What I'm

19 asking, Mr. McCourt, is whether you could not envisage

20 to enter into consultation with the Defence, too, to

21 see to what extent you may be able to provide access to

22 them to exculpatory documents, documents which, of

23 course, they would need to specify. Could you envisage

24 providing access to the Defence, in the same way that

25 you have done for the Office of the Prosecutor, without

Page 12255

1 going into an order to be addressed to you? Because it

2 is not necessary to issue such an order if you simply

3 enter into an agreement with the Defence to see to what

4 extent the Defence may have access to some exculpatory

5 documents which are in the possession of the ECMM.

6 MR. McCOURT: Your Honour, in that regard

7 ECMM has not, to date, been prepared to grant access to

8 its archives to anybody other than the Office of the

9 Prosecutor. But I will deal with the matters which you

10 have referred to in other aspects of the submission

11 which I would wish to make to the Tribunal, and I would

12 submit that there is another way of dealing with it

13 which would be more appropriate.

14 JUDGE MAY: Yes. Can we move to your second

15 objection, which was based on the agreement.

16 MR. McCOURT: Your Honour, my second ground

17 for asking the Tribunal to refuse the application

18 relates to the status of the records themselves which

19 are involved.

20 As I've said, ECMM was established in July

21 1991, after the agreement in Brioni on the 7th of July

22 of that year. The legal basis for the Mission rests on

23 a number of memorandums of understanding which were

24 subsequently signed, and as I said, the relevant one

25 for the Republic of Bosnia-Herzegovina, as it then was,

Page 12256

1 was that which was signed on the 1st of October, 1991,

2 a copy of which I have now exhibited to the Tribunal.

3 I should apologise for the quality of the copy, but

4 it's the best I could do in the field with what was

5 available to me.

6 I would like to refer to the preambler

7 [phoen] paragraphs which set out the context in which

8 ECMM was established in the Republic of

9 Bosnia-Herzegovina.

10 The Court will see that there was a decision

11 of the Conference on Security and Co-operation in Europe

12 initially, which welcomed the readiness of the European

13 Community and its member states to organise the

14 Mission.

15 THE INTERPRETER: Could you slow down,

16 please, for the interpreters.

17 MR. McCOURT: You will see also a reference

18 to the invitation by the Yugoslav authorities to the

19 European Community and its member states to organise

20 such a mission. You will note a reference to the

21 agreements reached at Brioni on the 7th of July, '91,

22 and you will also note the conclusion of a memorandum

23 of understanding in Belgrade on the 13th of July, '91,

24 and the further memorandum of understanding of the 1st

25 of September, '91. You will also note that the member

Page 12257

1 states of the European Community, as it then was, 12 in

2 all, are specifically named as being sending parties.

3 Article 1 of this memorandum of understanding

4 refers to the mandate of the Mission in the Republic of

5 Bosnia-Herzegovina. Article 4 deals with status, and

6 Article 4(2) makes a provision for unrestricted freedom

7 of movement. Article 5 provides for the composition of

8 the Mission; personnel would be appointed by the

9 sending parties; that such personnel belonging to the

10 Monitor Mission will be called monitors and that they

11 will be appointed by the governments of the monitoring

12 parties. You will see that there is a provision for

13 the members of the Mission's administrative and

14 technical staff enjoying a status similar to that of

15 administrative and technical staff from monitoring

16 parties employed in embassies, and a similar provision

17 in respect of the Mission's auxiliary personnel.

18 If I can move on to Article 10, you will see

19 that monitors will be granted, during their mission,

20 the privileges and immunities of diplomatic agents in

21 accordance with the Vienna Convention on Diplomatic

22 Relations, and that these privileges and immunities

23 will be granted during their mission and thereafter

24 with respect to acts performed during the mission.

25 You will see that the memorandum of

Page 12258

1 understanding is drafted in a way to make provision for

2 the Mission to be a diplomatic mission in all respects,

3 with the provisions of the Vienna Convention on

4 Diplomatic Relations applying to the Mission.

5 In that regard, I would like to make a

6 reference to the provisions of the Vienna Convention on

7 Diplomatic Relations, and I have, for the Tribunal's

8 convenience, copies of the Vienna Convention which I

9 propose to refer to.

10 Before doing so, it's quite clear -- I think

11 it should be to the Tribunal -- that the Mission and

12 its members, its premises, and its activities have been

13 accorded the status of a diplomatic mission. There is

14 also a provision that the premises of the Mission are

15 inviolable. Therefore, it is, I submit, clear that the

16 Mission has diplomatic status in accordance with the

17 terms of the Vienna Convention on Diplomatic Relations

18 of 1961.

19 A diplomatic agent is defined in the Vienna

20 Convention, on the first page, as the head of the

21 Mission or a member of the diplomatic staff of the

22 Mission.

23 Article 22 of the Convention provides that

24 the premises of the Mission shall be inviolable and

25 also that the premises of the Mission, their

Page 12259

1 furnishings and other property thereon, and the means

2 of transport of the Mission shall be immune from

3 search, requisition, attachment, or execution.

4 I want to make a particular reference to

5 Article 24, which states that the archives and

6 documents of the Mission shall be inviolable at any

7 time and wherever they may be. Now, the original of

8 this Convention is, as I understand it, deposited with

9 the Secretary-General of the United Nations.

10 I should say that the ECMM mission is headed

11 by a Portuguese diplomatic who is designated ambassador

12 while holding that appointment. Furthermore, in Bosnia

13 and Herzegovina all monitors are registered as

14 diplomatic representatives with the Ministry of Foreign

15 Affairs and issued with diplomatic ID cards.

16 The Mission is accepted as a diplomatic

17 mission by all of the host countries where it

18 operates. Furthermore, ECMM's vehicles are exempt from

19 registration and licensing requirements and carry CD

20 markings.

21 ECMM is claiming before this Tribunal the

22 diplomatic privileges which attach to its archives

23 under the provisions of the memorandum of understanding

24 and the Vienna Convention on Diplomatic Relations. In

25 my respectful submission to the Tribunal, it is clear

Page 12260

1 that the records of ECMM are protected by those

2 privileges which are provided by both the MOU,

3 memorandum of understanding, and the Vienna Convention,

4 and that accordingly they are not subject to an order

5 for disclosure from any court, either national or

6 international, including, in this case, in my

7 respectful submission, this Tribunal. I therefore

8 submit that this Tribunal should refuse the application

9 on the grounds -- this additional ground of the status

10 of the Mission.

11 This, of course, does not preclude the ECMM

12 from assisting the Tribunal by voluntary disclosure of

13 records to the Office of the Prosecutor and by the

14 arrangements it has or is prepared to agree with the

15 Office of the Prosecutor regarding disclosure to the

16 Defence in the interests of justice, and this brings

17 me, if I may, to my third ground of objection to the

18 granting of the order sought by the Defence.

19 ECMM has, as I've said, agreed to co-operate

20 with the Office of the Prosecutor in the important work

21 which it is doing. I should emphasise, however, that

22 ECMM does not have any investigative function in the

23 context of the role of the Office of the Prosecutor.

24 Under the provisions of Rule 70 of the

25 Tribunal's Rules of Procedure and Evidence, ECMM has

Page 12261

1 provided access to ICTY to its archives. This access

2 is not unrestricted, as has been suggested by the

3 applicant. As I've said, it means that ECMM must

4 further authorise the use of any of its records for the

5 purposes of the Office of the Prosecutor on a

6 case-by-case and document-by-document basis. To date,

7 to the best of my knowledge, ECMM has agreed to any

8 such requests from the Office of the Prosecutor.

9 In the context of the applicant's statement

10 in his letter of the 24th of August to ECMM, when he

11 spoke about the refusal of the Prosecution to make full

12 disclosure, it seems logical to me that an application

13 for discovery might more appropriately have been lodged

14 by the Defence against the Office of the Prosecutor

15 rather than ECMM, if that hasn't already been done.

16 And as I understand it, there is provision for such an

17 application under Subrule 66(B) of the Tribunal's Rules

18 of Procedure and Evidence.

19 It may, of course, be the case that that

20 would have produced a reciprocal requirement on the

21 Defence to disclose matters it would prefer not to

22 to the Prosecutor, but so be it.

23 It would appear, therefore, to ECMM, that it

24 would have been much more appropriate for the Defence

25 to have dealt with his requirements on this basis.

Page 12262

1 Therefore, ECMM submits that the Tribunal

2 should not make the order sought, on the additional

3 grounds that such an order is not required in the

4 interests of justice, when an acceptable alternative

5 procedure is already available under the provisions of

6 Rule 66(B).

7 I should say, in that regard, that ECMM would

8 be prepared to very seriously consider any request from

9 the Office of the Prosecutor, where the Prosecutor

10 considered that disclosure of information in its

11 possession would be warranted to the Defence under the

12 provisions of Rule 68 of the Tribunal's Rules of

13 Procedure. Again, of course, this would be on a

14 document-by-document basis.

15 ECMM, therefore, submits that the Court

16 should refuse the application on this additional

17 ground, because it is not necessary in the interests of

18 justice.

19 JUDGE BENNOUNA: [Interpretation] Mr. McCourt,

20 you certainly know that The Office of the Prosecutor

21 need not share the interests and concerns of the

22 Defence. You are quoting our Rules and you must be

23 familiar with the Statute and the Rules of Procedure of

24 the Tribunal. And there are two parties: There is the

25 Prosecutor and there is the Defence. And to refer the

Page 12263

1 Defence to the Prosecution, it is difficult to do,

2 because the Defence, of course, is the adversary party,

3 the opposing party, and it is quite possible that by

4 referring them to The Office of the Prosecutor, it

5 cannot really quite meet all their concerns, and I do

6 not really think that it would meet the objectives of

7 the Defence.

8 Are you aware of that?

9 MR. MCCOURT: Your Honour, if I may refer to

10 Rule 68. And of course I fully understand the point

11 that Your Honour has made. But the Prosecutor has a

12 duty of disclosure under the provisions of Rule 68, and

13 this is a duty which The Office of the Prosecutor must

14 obviously comply with under the specific Rules --

15 JUDGE BENNOUNA: [Interpretation] Yes, but,

16 Mr. McCourt, it is bound to disclose, it is under the

17 obligation to show or give the documents that it has.

18 But it is quite possible that there are other documents

19 which it has not requested and which are yet of

20 interest to the Defence. The Rule, the obligation

21 [indiscernible] is to operate. The Chamber is already

22 taking care of this and, for your information, we have

23 already requested the Prosecution to give all that it

24 has in the nature of exculpatory documents to the

25 Defence. But the problem is, the question that arises

Page 12264

1 is whether there are some other documents which the

2 Prosecution has not requested and which are in your

3 possession and which could be of interest to the

4 Defence.

5 So are you refusing to do that, and are you

6 refusing to discuss it with Defence, or are you still

7 leaving some room for possible discussion of such

8 documents for the Defence?

9 MR. MCCOURT: Well, Your Honour, I have

10 stated ECMM's position with regard to the status of its

11 documents, and ECMM would have a serious difficulty in

12 changing its position in regard to the status, the

13 confidential nature of its diplomatic archives. In

14 accordance with the provisions of Article 24 of the

15 Vienna Convention, these documents are confidential

16 and --

17 JUDGE BENNOUNA: [Interpretation] They are

18 confidential, all the documents are confidential, in

19 view of the convention on documents, but this is not a

20 matter that concerns the Tribunal in this -- the problem

21 is that this -- that when you placed some documents on

22 the Prosecution, you did not raise this objection. You

23 did not say that they were confidential. You agreed to

24 give those documents, to disclose those documents to

25 the Prosecution.

Page 12265

1 Now, why are you raising this objection now,

2 when it comes to a Defence? There is a problem, I

3 believe, here of -- the problem of equity, of fairness

4 which arises, because we are dealing here with

5 International Tribunal. There are accused persons who

6 risk to be detained, have been here for a long time,

7 and, presumably, everybody should have access to

8 documents, both inculpatory and exculpatory.

9 MR. MCCOURT: Your Honour, my instructions

10 are that these documents should not be made available

11 to anybody other than The Office of the Prosecutor for

12 the time being.

13 JUDGE MAY: Well, Mr. McCourt, let's just

14 consider that for a moment. The argument is that the

15 documents are inviolable. This is leaving aside your

16 objections under Article 29. But that can't be right,

17 if you've agreed to give them to the Prosecutor. What,

18 perhaps, we might have some difficulty in

19 understanding, is how it comes about that they are not

20 inviolable when it comes to the Prosecutor, but they

21 are inviolable when it comes to the Defence. There may

22 not be a consistency here which is apparent.

23 Now, of course, you may well say that with

24 regard to the Prosecutor, you have the assurances under

25 Rule 70 of confidentiality, which are otherwise

Page 12266

1 missing. But if there were similar assurances under

2 Rule 70 obtained by the Court from the Defence, would

3 the objections still arise, providing, of course, the

4 other criteria are established under the Blaskic

5 judgement?

6 MR. MCCOURT: Your Honour, the position of

7 ECMM in this matter would be, and is, that it had no

8 difficulty in granting access to its archives under

9 Rule 70 to The Office of the Prosecutor. The Mission

10 was quite prepared to do that, in the knowledge that

11 the documentation would be well and truly protected and

12 that any subsequent use would require further

13 consultation with ECMM.

14 ECMM's view on advancing that disclosure

15 beyond that office would be that it's not necessary to

16 go any further than that; that since The Office of the

17 Prosecutor is fully aware and conscious, I'm sure fully

18 complies with its obligations under the Rules of

19 Procedure, including those of Rule 68, that it would be

20 for the Office of the Prosecutor to analyse those

21 records and to make a judgement on what documents might

22 indeed be exculpatory.

23 The Office of the Prosecutor has the

24 knowledge and the skills relating to such matters which

25 ECMM doesn't have, and, of course, the access that was

Page 12267

1 granted to the Office of the Prosecutor was done so in

2 the belief that it would be sufficient to meet with the

3 requirements of justice, not only to the Prosecutor but

4 indeed to the Defence as well, and that the

5 responsibility for deciding on what might be useful to

6 the Defence should properly rest, indeed in this case,

7 with the Prosecution, rather than with ECMM as an

8 organisation, which doesn't involve itself in making

9 any such determinations as to relevance of its

10 records.

11 JUDGE MAY: I mean, clearly not. You

12 wouldn't be in a position to do that. The difficulty,

13 as Judge Bennouna has pointed out, with that position

14 is that that requires one side to establish what is

15 significant and important to the other. Now, the Rules

16 do that, of course, as far as the material in the

17 possession of the Prosecutor is concerned, but there

18 may be material which -- the relevance of which and the

19 importance of which is clear only to one party in the

20 litigation. It isn't necessarily clear to the other.

21 But shall we -- I think we've debated that

22 far enough. Shall we move on to your fourth objection,

23 please.

24 MR. MCCOURT: Yes, Your Honour. ECMM's

25 fourth ground for opposing this application is that

Page 12268

1 although ECMM is not, in our submission, a state, and

2 therefore an order shouldn't be granted under Article

3 29, but even if it were, ECMM submits that the

4 applicant has not properly complied with the terms of

5 the new Rule 54 bis. The application now before the

6 Court contains an annex listing materials sought from

7 ECMM under some 38 headings. ECMM recalls the initial

8 oral request of the 13th of August, 1999 was completely

9 unspecific and was of a very general nature. Total

10 records over a period of some three and a half years

11 relating to the Mostar region is what was initially

12 sought, with a view to finding out if there was

13 anything that might be useful to the Defence.

14 The subsequent written request, which had

15 been -- which I have a copy of -- has been produced to

16 the Tribunal, dated the 24th of August, 1999, relates

17 to an unspecified number of documents under some 15

18 headings. Now, in its application before the Court, in

19 the annex attached to it, the applicant has added

20 additional material, which was never in fact requested

21 from ECMM, and perhaps not from The Office of the

22 Prosecutor either. But it has also dropped some of the

23 informations previously requested.

24 The application now is not for a specific

25 number of clearly identified documents. The applicant

Page 12269

1 has, in my respectful submission, fairly to indicate

2 adequately how the documents sought might be relevant

3 and necessary for its case. And since many of these

4 documents were never requested from ECMM, it is clear

5 that the applicant had not explained what steps had

6 previously been taken to secure them from The Office of

7 the Prosecutor within the provisions of the Rules.

8 The access now sought by the applicant, to

9 practically all of ECMM's records, for a considerable

10 period, could also prejudice the security of ECMM's

11 interlocutors in the Mission area and, indeed, perhaps

12 also its own staff.

13 I should say that in the time available

14 before this hearing, it was not feasible or practicable

15 to consider the full extent of the security

16 considerations which would have to be evaluated on a

17 document-by-document basis.

18 Accordingly, it was not possible to submit to

19 the Tribunal the notice of objection, which is required

20 under the provisions of Subrule 54 bis (F), before this

21 hearing took place, other than to make this general

22 oral submission in that regard. I therefore

23 respectfully seek the Tribunal's indulgence and

24 understanding of ECMM's position in that regard.

25 I should say that the task of considering

Page 12270

1 each and every one of the documents, comprehended by

2 the applicant's request under some 38 headings, would

3 be enormous. It could involve many, many hundreds of

4 documents and would be extremely and unduly onerous to

5 the organisation. ECMM is not staffed for these

6 purposes.

7 The applicant has also referred to four

8 requirements for the issue of a binding order under

9 Article 29(ii), and claims to have complied with each

10 of the four such requirements.

11 If those four requirements are correctly

12 articulated in the application, and ECMM is not in a

13 position to dispute that, ECMM's reply would be as

14 follows: A, the documents requested under many

15 headings are in broad categories rather than specific

16 documents; B, the relevance and necessity of the

17 documents to the Defence in this case has not been

18 adequately established; C, the applicant has sought at

19 least hundreds, if not perhaps even thousands of

20 documents, which is not permitted by the Rules. And as

21 I've already said, their production would be extremely

22 onerous and overly taxing, under very limited resources

23 of ECMM.

24 In that regard, I should say to the Tribunal,

25 ECMM has one part-time databank attendant and has no

Page 12271

1 archivist. The time required by ECMM to provide the

2 materials sought would be very considerably in excess

3 of the 60 days suggested in the application. I

4 couldn't hazard a guess as to how long it would take.

5 Accordingly, while ECMM submits that the

6 Tribunal should refuse the order under the three

7 previous arguments submitted, ECMM also submits that

8 the Tribunal should reject this application on the

9 grounds that the applicant has not fully complied with

10 the provisions of Rule 54 bis.

11 What I have said to date relates only to the

12 application on behalf of Mr. Kordic.

13 In the case of the application joinder by

14 Mr. Cerkez, if I pronounce the gentleman's name

15 correctly, ECMM has, of course, never had any contact

16 whatsoever on his behalf, either orally or in writing.

17 No request at all has been received on his behalf.

18 Accordingly, in respect of his joinder in

19 this application, ECMM respectfully submits that his

20 application should also be refused by the Tribunal for

21 the same reasons.

22 In conclusion, ECMM submits that the

23 application on behalf of both the Defence should be

24 refused by this Tribunal.

25 I thank you gentlemen.

Page 12272

1 JUDGE MAY: Thank you, Mr. McCourt.

2 Mr. Stein, we are going to hear the arguments

3 now. I'm afraid the clock is not with you. We have

4 what is in the application. There is no need to repeat

5 that. I think we have in mind your probable arguments

6 in relation to relevance, which we've, with respect,

7 heard before.

8 MR. STEIN: I'll try to be the taciturn

9 Yankee.

10 May it please the Court, first, with regard

11 to the states issue raised by the ECMM, the very

12 documents that the ECMM provides are documents between

13 the states. This is exactly, almost a shell between

14 the Netherlands who was here this morning and said, "We

15 are a state, but we gave our documents to UNPROFOR.

16 Get them from them." The Netherlands, as part of this

17 group, the logic of what we are hearing before Your

18 Honours, totally, is these documents are unavailable to

19 all.

20 We suggest that ECMM does come within 29(ii),

21 because it's composed of member states of the U.N., and

22 that the present application should be viewed as an

23 application to those member states.

24 Even if Your Honours disagree with that, then

25 we suggest that the Chamber has within its power the

Page 12273

1 appropriate -- and it would be an appropriate exercise

2 of Your Honours' power to order a subpoena to the ECMM

3 pursuant to Article 15 and Rule 54.

4 With regard to prior discussions and attempts

5 to get documents through conciliatory means, cutting to

6 the chase and being as succinct as I can, it doesn't

7 matter what we would have done, could have done, might

8 have done, or ought to have done; their answer was

9 clear and unequivocal, as expressed in the letter and

10 in the submissions today. Their files are privileged.

11 They are confidential, except when they are not

12 confidential, which is when the Prosecution is given

13 access.

14 Third, with regard to that very issue, having

15 waived the confidentiality that they now assert, by

16 giving the documents to the Prosecutor, we will be in

17 the anomalous position again of having the Prosecution

18 using the various documents that have been given to it,

19 relying on it, relying on witnesses from the ECMM, but

20 us having no access to them. And we may be in a

21 situation where ultimately we might move to strike the

22 testimony or exhibits, the documentary evidence of the

23 Prosecution submitted by the ECMM for one side of the

24 case, but not to the other.

25 I hope we don't have to go there.

Page 12274

1 I would point out that Your Honour Judge

2 Bennouna exactly has the point that we make. Our view

3 of the case is very different from the Prosecutor's.

4 Our eyes looking at the documents are very different

5 than the Prosecution. Although I do quote to Your

6 Honours, Mr. Nice's observation at one point, and this

7 would be on day 71, "I thought that the ECMM documents

8 generally are documents that both sides are going to

9 regard as helpful when they are produced."

10 And you will recall the testimony of

11 Mr. Brix-Andersen on day 95, November 30th. This is

12 from line 20.

13 "So my knowledge of him is from the

14 documents, from the reports, namely, from RC Zenica.

15 Based on these reports, it was the assessment of the

16 ECMM and my own opinion that Mr. Kordic had an

17 influential position, in some areas a controlling

18 position, within the HVO."

19 So the Prosecution has been using the

20 documents, and the witnesses for the Prosecution have

21 been using the documents, and we believe under equality

22 of arms we are entitled to them. And I will try to

23 change the word "arms" henceforth.

24 Finally, we want to narrow our request. I

25 took a look at this with my colleagues last night, and

Page 12275

1 so we would limit our request, if I may, Your Honour,

2 to that set out at paragraphs 3, 6, 10, 12 through 15

3 inclusive, 18, 21 through 31 inclusive, and 38. The

4 others we find over-broad, and I don't want to get into

5 an issue of that magnitude.

6 I promised I would be succinct. I didn't

7 even think I would do it in six minutes, but I have.

8 JUDGE MAY: Mr. Kovacic.

9 MR. KOVACIC: Your Honour, could I just add

10 one simple statement?

11 We did join with the formal submission to the

12 request of the Kordic Defence. The idea was really

13 based on the principle of beneficium corisiones

14 [phoen]. And in the same time, since we are obliged by

15 the earlier orders of that Court related to the

16 confidentiality of the documents, we believe that all

17 the documents we might possibly get, based on the

18 Kordic Defence request -- better to say order which you

19 may or may not issue -- we will benefit from that. We

20 don't think that there is any formal obstacle in our

21 omitting requesting the document from the involved

22 parties, since the other Defence did it.

23 Thank you, Sir.

24 MR. STEIN: Your Honour, I might want to

25 add -- I'm sorry, I forgot one thing.

Page 12276

1 The gentleman from the ECMM might want to

2 check the record and with the Office of the

3 Prosecutor. There have been documents from the ECMM

4 entered, I believe. I believe Z2451.6 is one such

5 document. I don't believe there has been any

6 application made to the ECMM for some sort of waiver of

7 confidentiality, so I think that the door is not only

8 open, but wide open.

9 Thank you, Your Honour.

10 JUDGE MAY: We'll consider these matters and

11 give our order in due course when Judge Robinson has

12 returned, which will be after the 25th of this month.

13 As I say, we're grateful to Mr. McCourt for

14 attending to assist the Tribunal.

15 I don't want to break for the moment, but

16 there is the UNPROFOR matter. We've got the response

17 on that. Is there anything you want to say about

18 that?

19 MR. STEIN: No, except that I believe,

20 literally read, we couldn't share the information with

21 the defendant. The restrictions that UNPROFOR wants

22 are acceptable to us in terms of confidentiality. They

23 talk about the lawyers for Mr. Kordic having access to

24 the information. They neglect "the defendant." I'm

25 sure that's an oversight.

Page 12277

1 THE INTERPRETER: Can you slow down, please.

2 MR. STEIN: And we're working with the

3 UNPROFOR officials as we speak.

4 JUDGE BENNOUNA: [Interpretation] A final

5 question, Mr. Stein. I think that this applies --

6 excuse me for a minute.

7 [Trial Chamber confers]

8 JUDGE BENNOUNA: [Interpretation] Concerning

9 your request for documents to the Netherlands as a

10 state, it was stated this morning that a certain number

11 of documents concerning the chain of command, or the

12 Dutch army, or certain units of that army, that those

13 documents should be requested from UNPROFOR rather than

14 the Netherlands as, in the opinion of the Netherlands,

15 it does not have the possibility or the right to

16 communicate them because that is up to the United

17 Nations. For this type of documents for which it has

18 been established that the only way that they can be

19 disclosed is through the United Nations and UNPROFOR,

20 could you address yourself to UNPROFOR rather than the

21 Netherlands, therefore to change, in a sense, the

22 addressee, the person to whom your request is

23 addressed?

24 MR. STEIN: Of course we can, Your Honour.

25 Frankly, the biggest dilemma we have with

Page 12278

1 UNPROFOR is its over-willingness. They have 4.000

2 boxes of documents, so we have to find the Netherlands

3 in that 4.000 boxes. We can do it and we will do it,

4 and, if necessary, if that's all we have, that's all we

5 have. On the other hand, the discrete state, if it had

6 its own discrete records, would have made our task far

7 easier.

8 JUDGE BENNOUNA: Thank you.

9 JUDGE MAY: We'll adjourn now until Monday

10 morning.

11 --- Whereupon the Ex Parte Hearing

12 concluded at 1.13 p.m.

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