1 Thursday, 20th May, 1999
2 (Closed session)
3 --- Upon commencing at 10.05 a.m.
13 page 2794 redacted closed session (ex parte)
10 (Open Session)
11 MR. NICE: Thank you. I don't know exactly
12 how the Chamber wishes to proceed this morning.
13 JUDGE MAY: Mr. Nice, it may be convenient if
14 I summarise briefly the documents that we've had, and
15 then we'll hear any submissions that you wish to make
16 on the matter, and then we'll hear the government
18 The order, as I said, was the 4th of February
19 of this year for the production of documents within 60
21 We have received two reports on service by
22 the Federation. Mr. Ahmic reported on the 6th of April
23 that only the Minister of the Interior had communicated
24 that it did not have any of the documents, the order
25 having been forwarded to the appropriate ministries.
1 Mr. Tomic reported on the 9th of April that he had
2 received none of the documents. Those two gentlemen
3 have been authorised to appear for the Federation.
4 We have your application on the 16th of
5 April, Mr. Nice, requesting a hearing for the
6 representatives of the Federation to appear to explain
7 why compliance cannot be expected or obtained or to
8 show cause why the Trial Chamber should not find that
9 the Federation is in breach of the order of the Trial
11 We, on the 27th of April, ordered that there
12 should be a hearing today to allow the representatives
13 of the Federation to explain why it hasn't complied
14 with the previous order.
15 While I'm dealing with these preliminary
16 matters, I should say that such remedy as the Chamber
17 may have, the Rule which applies to a hearing of this
18 sort appears in Rule 7 bis(A), which provides that,
19 "... where a Trial Chamber or a Judge is satisfied
20 that a State has failed to comply with an obligation
21 under Article 29 of the Statute which relates to any
22 proceedings before that Chamber or Judge, the Chamber
23 or Judge may advise the President, who shall report the
24 matter to the Security Council."
25 The other matter of law to which I would
1 refer, to put this hearing into context, is the Blaskic
2 appeal decision of the 29th of October of 1997, which
3 dealt with these matters. At paragraph 35 of the
4 judgment, the Appeal Chamber said that, "When faced
5 with an allegation of non-compliance with an order or
6 request issued under Article 29, a Trial Chamber must
7 be satisfied that the State has clearly failed to
8 comply with the order or request."
9 They went on to point out that, "This finding
10 is totally different from that made at the request of
11 the Security Council by a fact-finding body and, a
12 fortiori, from that undertaken by a political or
13 quasi-political body. Depending upon the
14 circumstances, the determination by the latter may
15 undoubtedly constitute an authoritative statement of
16 what has occurred in a particular area of interest to
17 the Security Council."
18 Then going on to the end of the paragraph,
19 "By contrast, the International Tribunal, i.e., a
20 Trial Chamber, a Judge, or the President, engages in a
21 judicial activity proper, acting upon all the
22 principles and rules of judicial propriety, it
23 scrutinises the behaviour of a certain State in order
24 to establish formally whether or not that State has
25 breached its international obligation to cooperate with
1 the International Tribunal."
2 Mr. Nice, I refer to those matters because
3 it's against that background or within that framework
4 that the Trial Chamber must conduct the hearing and
5 make any finding.
6 Now, is there anything you want to add?
7 You've made your request.
8 MR. NICE: We've made our request. There
9 are, I think, a few things that I should say at this
10 stage to put things in context.
11 First, so far as remedies are concerned, of
12 course, if the Chamber is able to pursue the matter
13 today by obtaining from either representative the
14 identification of someone who presently knows or,
15 indeed, at any time has known, I dare say, the
16 whereabouts of the material that is sought, then steps
17 may be taken in respect of a named individual, which
18 could ultimately lead to the provisions of Rule 77
19 becoming appropriate if compliance isn't made; that is
20 to say, contempt. We would ask you to have in mind, in
21 relation to this matter, the pursuit of named
22 individuals who can help you further.
23 Today's hearing comes at the end of a long
24 history, but Your Honour has encapsulated what is
25 material for today's hearing, although it may be
1 helpful for the Chamber generally if I say just the
3 First, as the Chamber knows and as is set out
4 in our application, the Federation is represented by
5 two individuals because, in large measure, there are
6 two separate systems in operation there which are by no
7 means necessarily in harmony.
8 Again, as I think the Chamber will know from
9 its experience generally, the Chamber and the Office of
10 the Prosecutor has always enjoyed very considerable
11 cooperation with and from the Bosniak side, represented
12 today by Mr. Ahmic, and the Chamber will see that his
13 explanation is full and it's not one which we in any
14 way challenge. The same cannot be said of the other
15 part of the Federation, represented by Mr. Tomic.
16 Second, there is no challenge so far before
17 you to the suggestion that these documents have
18 existed, or indeed still exist. Again, the Chamber,
19 from its dealings with this case, and generally, may
20 know and accept that a tradition of documentation that
21 existed before 1990 persisted after the changes in the
22 former Yugoslavia, and as I say but repeat, there is no
23 evidence nor suggestion that the documents identified
24 either don't exist or have been destroyed.
25 Third, as the Chamber may know from
1 elsewhere, but it's important that I should tell you in
2 case you don't, in his evidence in the Blaskic case,
3 the defendant, Blaskic, himself made it clear that
4 there existed as late as the autumn of 1995 a complete
5 war archive, for he spoke, I think, in giving evidence,
6 from notes which he asserted he had compiled from that
7 very war archive which he had been able fully to
9 I believe, indeed, the Blaskic Trial Chamber
10 has made an order in respect of the original material
11 consequent on his evidence, but what is clear, and no
12 doubt would not be denied by Mr. Tomic, is that that
13 war archive existed in 1995.
14 There are, therefore, people within the
15 Federation -- and it will be the Croat side of the
16 Federation -- who knew then and who know now what has
17 happened to that archive. I can tell Your Honour this,
18 that the location spoken of by Blaskic in his own
19 defence as the place where the archive was to be found
20 is not one that has been visited for search by the
21 Office of the Prosecutor and wasn't covered on an
22 earlier occasion by such process.
23 Mr. Scott has prepared a most helpful and
24 full chronology of events. I'm afraid that it's at the
25 moment only in English, and I apologise for that, but
1 it wasn't realised how substantial it would be until it
2 was very recently looked into. I can make that
3 available to you now, or possibly later, depending on
4 whether you would prefer to hear straightaway an
5 explanation from the representatives of the Federation;
6 but it's our submission to you that the answers that
7 have been thus far provided in the reports, and in the
8 very short report of Mr. Tomic, leave unanswered
9 questions that the Chamber would itself want to have
11 These documents are, of course, of absolutely
12 fundamental importance to the work of this Chamber. If
13 they were produced, and if, as there's no reason to
14 doubt, they would provide a full working record of what
15 happened, then nearly all, if not all, the issues that
16 are having to be litigated second-hand, or indeed
17 litigated in some instances by the process of
18 inference, would be established directly by
19 contemporaneous material, material that for example
20 apparently includes a report prepared
21 contemporaneously, on the orders of Blaskic, about the
22 massacre at Ahmici, but I cite that as but one
24 So these documents would make your task
25 infinitely easier, would indeed save an enormous amount
1 of time, and there can only be one reason why those
2 documents are being kept from you, by whatever process;
3 hiding, dispersion, possibly destruction, removal to
4 another State. There can only be one reason, and that
5 is because they would be revealing in a way that the
6 custodians do not wish to allow.
7 It may be helpful -- because I know people
8 jumping up and sitting down again is unappealing -- it
9 may be helpful if I have distributed at this stage the
10 chronology and perhaps ask Mr. Scott to take you
11 through it very, very quickly. Would that be helpful?
12 JUDGE MAY: Yes.
13 MR. NICE: If that can be distributed as well
14 to Mr. Ahmic and Mr. Tomic, and I'll ask Mr. Scott to
15 deal with it as briefly as he can.
16 MR. SCOTT: If the usher could also provide
17 to the Court simultaneously, please, a packet of
18 materials, the first one of which is a subpoena duces
19 tecum from Judge McDonald, and the two separate things
20 can be used to some extent side by side.
21 THE INTERPRETER: Could the interpreters have
22 copies, too, please?
23 MR. SCOTT: The interpreters have asked for
24 copies as well, if we have enough. I hope we do.
25 As the Court is beginning to know by now, I
1 suppose, in seeing me stand up in court, I find written
2 outlines and notes to be certainly helpful for me, and
3 I hope for the Court as well, in moving through what is
4 often otherwise lengthy and complex material. The
5 Court will now have this and can certainly peruse it
6 both this morning and at other times when it sees fit.
7 As Mr. Nice said, I don't intend go through it word by
8 word by any means, but I do believe the Court will find
9 it most instructive in the issues before the Court.
10 What the Court will note immediately is that
11 -- in many ways unfortunately -- we come here today as
12 part of a story that started almost two and a half
13 years ago when a subpoena was issued by Judge McDonald,
14 which is the first document in the separate stack of
15 documents that has been distributed, which, when the
16 Court has the opportunity to review in full, the Court
17 will see that many of the same documents and much of
18 the same information that we are asking for today, or
19 asked for in February of this year, has been asked for
20 and sought after since January of 1997.
21 And I will represent to the Court that in
22 large measure, in substantially a majority -- in
23 substantially major measure, to this day, those
24 documents and materials have not been provided to the
25 Tribunal, either in the Blaskic case or now in the
1 Kordic case.
2 With that in mind, we start with, simply, in
3 item 1 on the chronology, Your Honours, the fact that
4 it's beyond dispute, I believe, that an archive was set
5 up by the legislation of what was then the Croatian
6 Community of Herceg-Bosna, in March of 1993, coming
7 from what's referenced here as the Official Gazette, or
8 the Court may have heard by now or will hear in the
9 future, the Narodni List. The Court will then note
10 that as it relates to some of the specific events in
11 this case -- and this chronology is rather a unified
12 document which essentially ties a number of different
13 events and issues into one single document, because the
14 Ahmici issue will come up both momentarily and later,
15 in the new application that will be reviewed later.
16 On the 16th of April, as the Court well knows
17 by now, is the attack on Ahmici. On the 10th of May,
18 then-Colonel Blaskic orders an investigation into
19 Ahmici. On the 25th of May, Mr. Sliskovic, who was the
20 intelligence officer, assistant chief for Central
21 Bosnia for essentially intelligence in the secret
22 police or the SIS, provided a very -- what you might
23 call preliminary report; and I note here, Your Honour,
24 that despite repeated efforts by this Court, by other
25 Trial Chambers, and certainly by the Prosecutor, to
1 date, this report -- which, as Mr. Nice has indicated,
2 could conceivably be one of the most important
3 documents that any of us could ever see on these issues
4 -- has never been provided, even in Colonel Blaskic's
5 own testimony in his own defence in the Blaskic case,
6 he himself has confirmed that these reports existed,
7 that he ordered it, that he saw them at one point, and
8 that he saw them at least in part in 1995 when he
9 himself visited the archive.
10 You will see -- I'm going to jump through the
11 next series of events -- you will see them. They are
12 largely self-explanatory. There is a further
13 subpoena -- well, this is the subpoena we were just
14 referring to, the next-to-last item on page 2, by Judge
15 McDonald to the Federation, the very Federation that
16 appears before the Court this morning, and to the
17 custodian of the records of the central archive,
18 et cetera.
19 At that very point in time, the prime
20 minister, the prime minister of Bosnia and Herzegovina,
21 directed the federal defence minister of Bosnia and
22 Herzegovina to comply, a senior member of the
23 Federation government, at that time was Mr. Ante
25 Going to the top of the next page, page 3 of
1 the summary, on February the 21st of 1997, the prime
2 minister again directed Mr. Jelavic to comply, in very
3 specific terms, which I again will not read to the
4 Court, but the excerpt is there. Some of these
5 documents, Your Honour, but only a sampling, are in the
6 packet of materials that I've provided to the Court.
7 Again, the Court will quickly note there are more
8 entries on this document, on the summary, than there
9 are documents in this packet, so I will tell the Court
10 this is simply, if you will, a sampling. We are
11 certainly happy to provide the Court with any document
12 that the Court would like that's listed or referenced
13 in this summary.
14 There then comes a series of orders and
15 additional subpoenas, the Court will see, from Judge
16 McDonald in the early part of 1997. Mr. Jelavic, in
17 late February and early March of 1997, actually ordered
18 all HVO commanders -- I'm looking at about the fifth
19 item on page 3 -- "Orders all HVO commanders to gather
20 and catalogue all available archives."
21 "Orders all HVO commanders to protect
22 against damage, destruction, removal and relocation all
23 archives subject to the above order."
24 What is interesting about that, one of the
25 things that's interesting about those orders, is that
1 the Court will then jump one item down to the 14th of
2 March 1997, there is then a letter addressed to this
3 Court in which the same Mr. Jelavic takes the position,
4 quotes, in an official representation to this Court,
5 that, "According to the information at my disposal the
6 Croatian Defence Council" -- that is, the HVO -- "as an
7 army formed during the war, never had a centralised
8 military archive."
9 And what we hope the Court will ultimately
10 conclude and the evidence will show and what this
11 submission shows, Your Honour, is that that is
12 simply -- let me say untrue. Whether it was an
13 intentional lie, we can all draw our own conclusions
14 ultimately. It was clearly untrue.
15 There is then a series of additional
16 exchanges, about the fourth item on page 4 at one point
17 Mr. Jelavic appears to suggest that while he doesn't
18 have jurisdiction over the archives that it really
19 should be the Minister of Justice and there is a letter
20 then from the Minister of Justice Mato Tadic who says,
21 "We [The Federal Ministry of Justice] have no
22 jurisdiction over the war archive, but it falls within
23 the competence of the Ministry of Defence."
24 There are then additional subpoenas and
25 orders from Judge McDonald. There is also on the next
1 item for the 18th of June, 1997, the Prosecutor's
2 report which essentially, if you will Your Honour,
3 summarises the history up to that point in time which
4 can do, and probably does, it more effectively and more
5 efficiently than I would do if we went through it in
6 detail this morning. I have a copy of that Your
7 Honour, and I didn't give it to the usher before
8 because it is a confidential, under-seal document, and
9 for that reason if I tender it to the Court subject to
10 the Court's direction. I'm not providing it to the
11 representatives of the Federation. So if I could hand
12 that to the usher, again, solely for the Court and its
14 JUDGE MAY: Is there some matter you want us
15 to rely on in that letter, before it's handed to us?
16 MR. SCOTT: Your Honour, I think you will
17 see, when you have a chance to look at it, that what
18 the Prosecutor did in this document is go through in
19 more detail than I have in the last ten minutes the
20 entire history and all the steps to obtain compliance.
21 The Court can simply take it as historical statement,
22 if you will, which I could simply go into in the same
23 fashion, if time allowed. But when the Court has a
24 chance to look at the document I think it will speak
25 for itself.
1 JUDGE MAY: Very well. We must finish this
2 hearing by half past 12 and that includes, Mr. Scott,
3 the second application.
4 MR. SCOTT: I'm going to jump dramatically
5 now and only head on to the bottom of page 5, I'm only
6 going to say this is for the entry of the 12th of
7 March, 1999, this year. This is what then Colonel
8 Blaskic said himself about Ahmici, that it was an
9 organised criminal act, et cetera, et cetera. And
10 again that is the reason why he asked for himself, on
11 at least two occasions, for an investigation to be
12 completed by his own essentially military police or
13 intelligence investigative service.
14 The Court will find Mr. Blaskic's own
15 testimony, I think, insightful.
16 Then, here is also directing to the bottom of
17 page 6, Your Honour, this is what, as Mr. Nice referred
18 to earlier, this is what Mr. Blaskic has testified to
19 as recently as a few weeks ago under oath in his own
20 case about the archive, the very archive, about the
21 very documents that we were seeking and that the
22 Prosecutor has been seeking since January of 1997.
23 Blaskic says, I went there in November of 1995, it was
24 there, it was in a town called Siroki Brijeg, he went
25 through voluminous documents et cetera, and again, in
1 interests of time I wouldn't go through it, but the
2 Court will see the documents very clearly; logbooks,
3 orders, military diaries, all were there and were all
4 seen and used by Colonel Blaskic in preparing his
6 Because of that -- I'm skipping now, Your
7 Honour, all the way to page 9 -- because of that, on
8 the 22nd of April, just a few weeks ago, the Blaskic
9 Trial Chamber ordered both the Defence in that case and
10 this same Federation to produce the materials relied
11 upon, and I've excerpted parts of the order here, which
12 I'll just briefly mention, which just simply says,
13 "Considering that the accused," Blaskic, "who is
14 appearing as a witness ... stated that, in order to
15 prepare his defence in the present case he relied on
16 the personal notes he drafted ..." et cetera,
17 et cetera, during a visit to the archives of his
18 headquarters. The Court directed, "all right, let's
19 see these materials. You've relied on them extensively
20 in your Defence, let us all have access to the same
22 The Court directed that those materials be
23 provided to the Prosecutor and to the Tribunal by the
24 15th of May, which was last Saturday. It is directly
25 related to much of the same material and information
1 that we seek, Your Honours. So not only -- I think
2 it's fair to observe in this context -- not only are we
3 here today on the non-compliance by the Federation of
4 your order on the 4th of February of this year but now
5 the failure to comply with the Blaskic order, which is
6 also outstanding, for essentially many of the same
7 materials. They are twice in violation.
8 Your Honour, that is where we are. We
9 believe that these documents have existed, either still
10 exist, or the Court is deserves to be told what
11 happened to them. And I'll stop there for the time
12 being, subject to the Court's questions.
13 (Trial Chamber confers)
14 JUDGE ROBINSON: Mr. Scott, if you turn back
15 to page 3 of your very helpful summary, at the bottom,
16 I'm referring to the letter.
17 MR. SCOTT: Yes, Your Honour.
18 JUDGE ROBINSON: From the Minister of Defence
19 denying that the Croatian Defence Council as an army
20 formed during the war ever had a centralised military
22 MR. SCOTT: Yes, Your Honour.
23 JUDGE ROBINSON: That letter, I'm not sure
24 whether we have it here, but are you able to say
25 whether there was anything else in that letter which
1 was advanced to substantiate the denial?
2 MR. SCOTT: Yes, Your Honour, there is -- you
3 do have the letter, it is in the packet of documents
4 which are pretty much in chronological order, Your
5 Honours, and without a page reference, I apologise, I
6 can only say that it's approximately halfway through
7 the stack. It is dated the 14th of March, 1997, in
8 another notation up in the upper right corner, someone
9 has written "575" or "573 A".
10 Mr. Jelavic does go on, after the quoted
11 statement in the second paragraph, to provide some
12 additional information.
13 I will tell the Court again, skipping over
14 the outline to some extent, Mr. Jelavic, by the end of
15 1997, took the position with the Prosecutor and the
16 Court that there had been compliance at least by that
17 late -- well, at that time late date, but I can tell
18 the Court, in anticipating possible questions from the
19 Court, the Prosecutor to this date, and I've spoken
20 with Mr. Harmon on this as well, considers that
21 production at the end of 1997 to be grossly deficient.
22 There were a few documents that were handed over that
23 were non-responsive.
24 I hope that's helpful to Judge Robinson.
25 JUDGE MAY: Very well. We will turn to the
1 representatives of the Federation, and it may be
2 convenient to hear from Mr. Ahmic first.
3 MR. AHMIC: (Interpretation) Yes, Your
5 JUDGE MAY: We have your letter of the 6th of
6 April in which you say that the order was communicated
7 by yourself in February to the Prime Minister and, in
8 turn, was forwarded to the Ministry of Defence, the
9 Ministry of Justice and the Ministry of Interior, with
10 the request to undertake all activities in their
11 competence as to comply with the order. But so far,
12 only the Ministry of Interior, as I said, had
13 communicated that the information requested was not in
14 their possession.
15 What would you like to say to us?
16 MR. AHMIC: (Interpretation) Yes, Your
17 Honours. I submitted the report to the Court on the
18 7th of April, 1992, in which I reported what the
19 ministries in question had done, that is, the
20 ministries making part of the government of
21 Bosnia-Herzegovina, and that was the report that you
22 had just read.
23 I should like to complement it with the
24 report of the Prime Minister, if I may, which we
25 received on the 17th of May, '99, and where we see a
1 brief overview of what Mr. Edhem Bicakcic, that is, the
2 Prime Minister of the Federation, did with regard to
3 the order of this Trial Chamber.
4 JUDGE MAY: I don't think we've seen a copy
5 of that report. Has it been forwarded to the
7 MR. AHMIC: (Interpretation) No, the Tribunal
8 has not received this letter because I received it
9 yesterday. It was written on the 17th, I received it
10 only yesterday, and I have here the copies of the
11 report with all the annexes. If I may, I should like
12 to distribute it now, and I have copies for Your
13 Honours and for the Prosecution.
14 JUDGE MAY: Yes, Mr. Ahmic.
15 MR. AHMIC: (Interpretation) I should merely
16 like to add that there is also a drafted translation
17 into English of the report and all the documents
18 attached to it, but it is an unofficial translation.
19 There are two copies, one for the Court and one for the
21 If I may, I should like to read this report
22 in total. It is not long.
23 JUDGE MAY: We now have the copy in front of
24 us. At least I have a copy. My colleagues do not.
25 Therefore, it may be best if you would summarise for us
1 the contents, because that makes for easier
2 translation. The one copy can go on the ELMO, and I'm
3 going to put on the English translation, and then if
4 it's on the ELMO, you could perhaps read it out,
5 Mr. Ahmic.
6 MR. AHMIC: (Interpretation) Yes, thank you.
7 JUDGE MAY: Yes. If you would like to do
9 MR. AHMIC: (Interpretation) Thank you.
10 The title of the document is "The
11 International Criminal Tribunal for the Former
12 Yugoslavia, Trial Chamber III." It is on the 17th of
13 May, 1999, number O1-2-318/99-3.
14 "The Federal Prime Minister reports that the
15 order of the Trial Chamber of the ICTY for the
16 production of documents issued on the 4th of February,
17 1999, and communicated to the Federation of
18 Bosnia-Herzegovina by the Ministry of Foreign Affairs
19 of Bosnia-Herzegovina was received on the 8th of
20 February, 1999.
21 "On the 9th of February, 1999, by letter
22 number 01-02-318/99 of the Prime Minister of the
23 Bosnia-Herzegovina Federation, the order was passed to
24 the Federal Defence Ministry to the attention of the
25 ministry, Mr. Miroslav Prce ..." And I need to mention
1 that he is a representative of the Croats people and is
2 a high official in the government of
3 Bosnia-Herzegovina, representing the Croat people.
4 "... then to the Federal Ministry of Justice, to the
5 attention of minister Ignjacije Dodik ..." and this is
6 an official representing the Bosniak people in the
7 authorities of the Bosnian Croat Federation.
8 As the Court is well aware of, these
9 ministers should undertake all the activities, in
10 compliance with their competence, so as to execute the
11 order of the ICTY Trial Chamber within the said period
12 of time.
13 Attention was also drawn by the Federal Prime
14 Minister to the fact that the [indiscernible] of the
15 order was of a confidential nature, that its
16 publication was not allowed.
17 Furthermore, prior to the expiration of the
18 said deadline of 60 days for the production of the
19 requested documents, by the letter of the 4th of April,
20 1999, the Federal Prime Minister, in his letter
21 01-02-0308/99, requesting relevant ministries once
22 again to actually provide the feedback about the
23 measures taken, and this letter is enclosed herewith.
24 I'm reading the document sent by the Federal Ministry
25 of the Interior on the 7th of March, '99. Its number
1 is strictly [indiscernible] with actual number
2 10-03-25/1, and the Federal Minister of Information
3 informs that it, I'm quoting, it did not have the
4 documents listed in the confidential annex to the order
6 The order was then passed on to the Federal
7 army, the section of security and intelligence, to the
8 Deputy Federal Minister of the Interior representing
9 the Croat people in the Federal Ministry of the
10 Interior, ministers of the Interior of the Central
11 Bosnian canton, and of the Herzegovina Neretva canton.
12 The former has its seat in Travnik and the latter in
13 Mostar, and they were requested to act under the order
14 within the said period of time.
15 In this letter of the Federal Ministry of the
16 Interior, it is said that the section of security and
17 intelligence of the Federal Ministry of Defence has
18 informed them that the documents listed in the
19 confidential annex of the order relate entirely to the
20 HVO component of the army of the Federation.
21 Furthermore, after the expiration of the 60-day time
22 limit as envisaged by the order of this Trial Chamber,
23 the Federal Defence minister, Miroslav Prce,
24 representing the Croat people on the authorities of the
25 Federation of Bosnia-Herzegovina, also issued a
1 document on the 19th of April, number 01-03-2-1/99, and
2 in this document, he wrote as follows, I'm quoting,
3 "In respect of the order for the production
4 of documents addressed to the BH Federation and issued
5 by the Trial Chamber of the ICTY in the case
6 'Prosecutor v. Mario Cerkez and Dario Kordic,' we
7 would like to advise you that the Federal Ministry of
8 Defence does not have any archive material dating from
9 the period in respect of which the documents are sought
10 available, and, therefore, we would like to direct you
11 to turn to relevant institutions in charge of the
12 custody of archival material since we do not know
13 whether they are in possession of any of the requested
15 We therefore sent the above-mentioned letter
16 of the Federal Ministry of Defence, Mr. Prce. A reply
17 was requested by the Prime Minister, Edhem Bicakcic,
18 requested a reply from the archive of the BH
19 Federation. The answer of the archive came on the 11th
20 of May, 1999, and under the number 01-1-05-1/1-99, and
21 there the archive of the BH Federation, in its letter,
22 explicitly states the following, and I quote.
23 "... the archive of the BH Federation has,
24 ever since it began its work on the 1st of June, 1997,
25 has not taken over a single holding from any of the
1 authorities or any other institution organised at the
2 level of the BH Federation."
3 At the end of this report, the Federal
4 Minister of Justice, Mr. Ignjacije Dodik, an official
5 representing the Croat people in the authorities of the
6 Federation of Bosnia-Herzegovina, and the Prime
7 Minister says that he has not been informed by the
8 Federal Minister of Justice about these measures at
10 In the end, I should like to add that
11 yesterday, on the 19th of May, the Federal Prime
12 Minister, Mr. Bicakcic, sent me a letter which I
13 received yesterday, in which the Federal Ministry of
14 Justice informs the Federal Prime Minister that the
15 Federal Ministry of Justice was approached by Miroslav
16 Prce, the Federal Defence minister, and with the letter
17 of the 10th of May, 1999, number 06-03-297/99, and in
18 this letter the Federal Defence minister, Mr. Prce,
19 informs, and I quote,
20 "In May, 1992, there did not exist Federal
21 institutions and instead there were only mono-ethnic
22 institutions in operation.
23 We are not legal successors to those, and
24 their documentation has not been placed at our
1 We therefore wish to inform you that we are
2 not in a position to extend to you the assistance as
3 required, and we suggest that you approach the
4 successors to the above-mentioned authorities."
5 JUDGE ROBINSON: Mr. Ahmic, what you've just
6 quoted was a reply from which ministry, Justice or
8 MR. AHMIC: (Interpretation) The Federal
9 Defence ministry, Mr. Prce, and through the Ministry of
10 Justice, he sent the letter to the Federal Prime
11 Minister. Yes, it is a little bit complicated.
12 JUDGE ROBINSON: So I expect you're coming to
13 deal with the question of a reply from the Ministry of
14 Justice itself, because so far, from what I have
15 gathered, there's no reply from the Ministry of
16 Justice, which was written to by the Prime Minister.
17 MR. AHMIC: (Interpretation) Yes, that is
18 true, that is so. You are quite right, Your Honour.
19 That is why the Federal Prime Minister also shows, in
20 his report, that within those 60 days' time limit and
21 even after the expiration of that, he has received
22 absolutely no report from the Federal Ministry of
24 I should like to conclude that this report,
25 as one authorised with the Federation, that this report
1 and the former reports make it clear that within 60
2 days, the relevant ministers, Mr. Ignjacije Dodik and
3 Mr. Miroslav Prce, who are officials representing the
4 Croat people in the authorities of the Federation of
5 Bosnia-Herzegovina, that is --
6 JUDGE BENNOUNA: Can we have the letter we
7 just read from the Minister of Defence to the Minister
8 of Justice on the ELMO, if you have it, the last letter
9 we just read?
10 JUDGE MAY: The 19th of May, the letter from
11 the Prime Minister. Do we have --
12 JUDGE BENNOUNA: From the Minister of Defence
13 to the Minister of Justice.
14 MR. NICE: May I temporarily withdraw?
15 JUDGE MAY: Yes, of course.
16 MR. NICE: I'll be back as soon as I can.
17 JUDGE MAY: Mr. Ahmic, let us see if we can
18 get this right.
19 There is a letter written by the Prime
20 Minister to you, is this right, of the 19th of May, and
21 in that letter he refers to the reply, as I understood
22 it, from the Ministry of Defence to him; is that
23 right? You've never heard anything from the Ministry
24 of Justice?
25 MR. AHMIC: (Interpretation) Quite.
1 Mr. Miroslav Prce, Minister of Defence, sent a letter
2 which I do not have to the Minister of Justice,
3 Mr. Ignjacije Dodik, and Mr. Dodik, as the Minister of
4 Justice, then transmitted this letter to the Federal
5 Prime Minister. That is, the Minister of Defence did
6 not approach directly the Federal Prime Minister.
7 JUDGE BENNOUNA: Can I have the letter?
8 MR. AHMIC: (Interpretation) Yes.
9 JUDGE BENNOUNA: I don't think you have it.
10 JUDGE MAY: Mr. Ahmic, did you hand in --
11 JUDGE BENNOUNA: He just read it.
12 JUDGE MAY: Yes. Did you hand in the letter
13 of the 19th of May which you just read out? Did you
14 hand that in to the Court?
15 MR. AHMIC: (Interpretation) Yes, I did.
16 JUDGE MAY: Perhaps the Registrar could give
17 back to Mr. Ahmic the documents and see if we can find
18 it and put it on the ELMO.
19 MR. AHMIC: (Interpretation) Your Honour, it
20 is not included in this file, but I do have a copy
21 myself. I have the letter here and a translation of
22 the same letter into English.
23 (Trial Chamber confers)
24 JUDGE MAY: Have we got the letter now on the
25 ELMO, please? Yes.
1 JUDGE BENNOUNA: Mr. Ahmic, I don't know if
2 you are in a position now to answer to some
3 complementary information about the content of this
4 letter, because here in this letter the Minister of
5 Defence is saying that, "We would like to inform you,
6 in May, 1992, the federal institution had not existed.
7 That means, rather, there were only uni-ethnic
9 Can you give the Chamber some position about
10 what is called here "uni-ethnic institution" first?
11 That is my first question.
12 MR. AHMIC: (Interpretation) That is the
13 position of Mr. Prce, which certainly could be subject
14 to a legal analysis. But in this position of his, I
15 think that Mr. Prce is not right.
16 At this point in time, I do not have the
17 legal regulations with the help of which I could
18 explain to Your Honours the situation in
19 Bosnia-Herzegovina in May, 1992, but all I can say,
20 that this was a period when the Republic of
21 Bosnia-Herzegovina, as a state, existed, and I don't
22 know what Mr. Prce is referring to when he talks about
23 mono-ethnic institutions.
24 But I can, I think, subsequently report to
25 Your Honours the legal regulations in force in 1992 and
1 how legal relations within the Republic of
2 Bosnia-Herzegovina were regulated at the time.
3 JUDGE BENNOUNA: I think it can be helpful to
4 the Chamber.
5 The second question. This letter, we can
6 read the significant information here. "We are not the
7 legal successors," so we are familiar with this problem
8 of succession of states or governments of states here,
9 "and therefore the document has not been put at our
10 disposal. Hence, we would like to inform you that we
11 are not in a position to offer you the appropriate
12 assistance. However, we suggest that you address the
13 successors of the mentioned institutions."
14 Are you in a position to give to the Chamber
15 some complementary information about who are now the
16 successors, because we are advised to address to the
17 successors of these institutions. Are you in a
18 position to inform us who are the successors to the
19 so-called uni-ethnic institutions or former
21 MR. AHMIC: (Interpretation) I have to say
22 again that I don't know what Mr. Prce meant when he
23 mentions mono-ethnic institutions. All I know is that
24 in May, '92, the Republic of Bosnia-Herzegovina
25 existed, as well as all its institutions, ranging from
1 the presidency, the government, the parliament, et
2 cetera. I don't know which mono-ethnic institutions
3 Mr. Prce had in mind in this letter; probably
4 institutions that only he is aware of.
5 As for the second paragraph, may I ask Your
6 Honours to look back at the report of the Federal Prime
7 Minister, because I think the Federal Prime Minister,
8 having received Mr. Prices two letters, probably didn't
9 understand which legal successors Mr. Prce had in mind,
10 because he did not indicate who those successors, legal
11 successors, are.
12 That is why we can see, from the letter of
13 the Prime Minister, that he addressed himself to the
14 federal archive, that is, the archive of the Federation
15 of Bosnia-Herzegovina, from which he received a reply
16 saying that the federal archive had not succeeded any
17 documents, as it was constituted only on the 1st of
18 June, 1997, I think, and that it did not get hold of
19 any holdings from the archive.
20 May I also, as a third point, give
21 explanations as to the possibility of who the legal
22 successors may be? And I should like to refer you
23 again to the statement by the learned counsel of the
24 Prosecution, Mr. Scott. And during the hearing, I
25 circled a document referred to by Mr. Scott in his
1 presentation, in the summary. It is on page 4. The
2 number of the document is 03/06/97.
3 It is the letter of the Minister of Justice,
4 Mr. Mato Tadic -- and may I add that Mr. Tadic is a
5 representative of the Croatian people in those days, in
6 the bodies and institutions of the Federation of Bosnia
7 and Herzegovina, and that Mr. Mato Tadic, as a
8 representative of the Croatian people, reported that
9 the Federal Ministry of Justice, if I am translating
10 this well from the English, has no jurisdiction over
11 the war archive, but that the archive falls within the
12 competence of the federal Ministry of Defence.
13 If I have been of any assistance to Your
14 Honours, Mr. Prce said something that in my view simply
15 doesn't stand, is not correct.
16 JUDGE BENNOUNA: Does that mean that the war
17 archive, according to this letter of 3 June '97, is
18 under the authority of the Ministry of Defence? That
19 means that the war archive now, in the Croatian part,
20 perhaps, of the Federation, is under the authority of
21 the Minister of Defence? Can you confirm that,
22 Mr. Ahmic?
23 MR. AHMIC: (Interpretation) I can just
24 confirm, Your Honour, what is stated in his letter by
25 Mr. Mato Tadic. And I think that in the Blaskic case,
1 the subpoenas were in fact addressed to the
2 then-minister of Defence, Mr. Anto Jelavic.
3 JUDGE ROBINSON: Mr. Ahmic, I have to say
4 frankly, one of the matters that the Chamber has to
5 decide on the basis of the Prosecutor's motion is
6 whether the Federation is in breach of the order of
7 this Chamber. The Chamber (sic) has an international
8 obligation, and I want to stress that, an international
9 obligation to comply with the order.
10 In deciding whether the Federation has
11 complied with the order, whether the Federation is in
12 breach of the order, one of the matters that the
13 Chamber has to take into account is the extent to which
14 the Federation has acted in good faith. That is
15 exceedingly important in this matter, the bona fides of
16 the Federation, and I have to say very frankly that
17 looking at this matter on the basis of the replies that
18 have been given, I'm very doubtful as to whether I
19 personally could conclude that the Federation has shown
20 good faith in this matter. It is not good enough to
21 come to this Chamber and say, as a representative of
22 the Federation, that you do not know where the
23 documents are.
24 I have formed a view that these documents are
25 in your country, and your country has a responsibility
1 to disclose them on the basis of the order made by this
2 Court. The discharge of your obligation, international
3 obligation, is totally independent of the domestic
4 constitutional structure of your country. Whether you
5 have complied with the order or not does not depend on
6 your internal structure. You have an international
7 obligation, and you must comply with it.
8 It is not for this Chamber to be going from
9 one document to another document, seeing whether it's
10 the Ministry of Defence or the Ministry of Justice. If
11 there is a successor agency to the agency that existed
12 before, then your obligation is to find that successor
13 agency and get the information from them. If the
14 information is not with the successor agency, then
15 presumably it is somewhere else, and it is equally your
16 obligation to get the information to the Court.
17 It is not good enough to merely produce a
18 letter from the prime minister saying that he has
19 written to A, B, and C; C, in this case, is the
20 Ministry of Justice, which has not even replied. It is
21 the obligation of the prime minister, if he is acting
22 in good faith, to secure a reply from the Ministry of
24 You have pointed us to the letter of the 3rd
25 of June '97 from the Minister of Justice, Mato Tadic.
1 Presumably his response today would be the same as it
2 was then, but it is very indicative of the efforts that
3 your country has made that you have come to the Chamber
4 today with no reply from the Minister of Justice to the
5 prime minister's letter, regardless of what that reply
6 would be. So I'm beginning to be very doubtful as to
7 whether I could say, speaking for myself, that the
8 Federation has acted in good faith in this matter.
9 MR. AHMIC: (Interpretation) I fully agree
10 with Your Honour, Judge Robinson, that on the basis of
11 these reports which I have conveyed to you as one of
12 the representatives of the Federation -- and I beg you
13 not to forget that we have a second representative of
14 the Federation, Mr. Tomic, and I think he has great
15 deal to say about the legal successors of the archive
16 and the documentations. I think he could have a great
17 deal to say as to what he has undertaken to comply with
18 the order, because these are documents which clearly
19 were created within the framework of the HVO, and
20 Mr. Tomic, I think, is better informed than me because
21 Mr. Tomic participated in the HVO structures, and I
22 think he can be of considerable assistance. As far as
23 I know, I think he was a secretary of the Croatian
24 Defence Council of Herceg-Bosna in Mostar; he was an
25 editor of the gazette, official gazette of Herceg-Bosna
2 JUDGE MAY: I'm going to interrupt you,
3 Mr. Ahmic, because Mr. Tomic can speak for himself; but
4 what we would like is an answer to the point made by
5 Judge Robinson. The point is this: That at the
6 moment, on the documents which are put before us, it is
7 the Federation which is in breach of its duty to comply
8 with the order of the Court. The order was sent to the
9 Federation, and the response that we get is that it is
10 the responsibility, if anybody's, of a particular
12 Now, we want to hear from Mr. Tomic. I would
13 be grateful if, very briefly, you would tell us why you
14 say it's not the fault of the Federation -- unless you
15 accept the point that Judge Robinson made, that it is
16 the fault of the Federation.
17 MR. AHMIC: (Interpretation) I agree, Your
18 Honour, but Your Honours, you have to bear in mind that
19 the Federation and the state of Bosnia-Herzegovina were
20 regulated by the Washington and Dayton agreements, and
21 it is specific and unique in relation to all other
22 states. When I say that the Federation has fulfilled
23 its obligation, I'm referring to the component of the
24 Federation consisting of the Bosniaks. In this case, I
25 must say, unfortunately -- I do not like to speak about
1 the ethnic origins of various people, but the
2 constitution of the Federation of Bosnia and
3 Herzegovina has been conceived in such a way that
4 ethnic parity representation is required in all the
5 institutions of the Federation, and this is stated in
6 the constitution. That means that the ethnic groups
7 have to be equally represented in the organs of the
8 Federation throughout.
9 When I said that the Federation had complied,
10 I was referring to the Bosniak component, the federal
11 prime minister, Mr. Bicakcic, as the Bosniak
12 representative, as the prime minister, has taken
13 everything in his power to gain possession of the
14 documents contained in the order of this Trial
16 JUDGE MAY: Very well. We will hear now from
17 Mr. Tomic.
18 Mr. Tomic, what he has said is that this is
19 the responsibility of the federal Minister of Defence
20 or the federal Minister of Justice, those ministries,
21 as I understand it, being part of the Croatian
22 component in the Federation. Perhaps you could deal
23 with those matters, please.
24 (Trial Chamber confers)
25 JUDGE MAY: Yes, Mr. Tomic. I'm sorry you
1 were interrupted.
2 MR. TOMIC: (Interpretation) thank you,
3 Mr. President.
4 Mr. President, Your Honours, as you have seen
5 from my brief report, I informed the competent
6 officials of the Federation about the order for the
7 production of documents. Also, during my recent stay
8 in Bosnia-Herzegovina, I personally informed the
9 president of the Federation, Mr. Ivo Andric Luzanski,
10 of the request of the Trial Chamber and the
11 Prosecution. It is a fact that to date I have not
12 received a single one of the requested documents.
13 A detailed analysis of various jurisdictions
14 that colleague Ahmic has referred to is something that
15 I have little to add to without additional consultation
16 with the appropriate ministers, either of Justice or of
17 Defence. It is my opinion that it would be useful, in
18 the interest of having full insight into the situation,
19 to highlight a few points.
20 It is a fact that a classical archive, an
21 archive in the traditional sense, such as exists in
22 modern countries, does not exist at this point in time
23 in Bosnia-Herzegovina, at least as far as the component
24 comprising the HVO is concerned. Due to wartime
25 conditions -- I'm implying the purely technical aspect
1 of the matter -- it would be difficult to find a
2 particular document applying regular archival methods.
3 This is point 1.
4 The second point is that a large amount of
5 archive documents disappeared. Some of them never even
6 existed. Another part of the documentation was seized
7 by the SFOR operation in the summer of last year. I
8 shall take the liberty to express a personal opinion,
9 and that is that I believe that a part of the
10 documentation may have been in the possession of
11 persons who played a certain role during the war and
12 later died.
13 It is also a fact that there was no strict
14 control, nor was there a high level of archival ethics
15 regarding the preservation of documents, and this is
16 also evidenced by the fact that individual persons
17 wrote their memoirs while the war was still going on,
18 and this is something that cannot be done without a
19 certain amount of documentation, and which could not
20 have been taken away had a proper system been
21 functioning in the archive.
22 May I also recall the fact that U.S. General
23 Bradley wrote his memoirs only in 1952 or 1953, in
24 which he expressed his gratitude to the United States
25 government for granting him permission to be able to
1 write those memoirs. The same general states that the
2 most important decisions of the Second World War were
3 made without any written record being taken of them.
4 So not a single army, and therefore the HVO as well, is
5 a kind of insurance company that issues its decisions
6 in two copies.
7 Regarding the actual request of the
8 Prosecution and the arguments provided in support of
9 it, may I be allowed to say the following: The request
10 does not fully correspond to the Appeals Chamber
11 decision of the 27th of October, 1997, in the Blaskic
12 case. The very wording saying that, quote, "all," end
13 quote, letters, documents, records, video recordings,
14 et cetera, are requested, does not facilitate
15 compliance with such a request.
16 JUDGE MAY: Well, Mr. Tomic, I don't think
17 it's appropriate to challenge the order now. The order
18 has been made. Now, as I understand the position which
19 you're adopting, you're saying that you haven't got any
20 documents anyway, and that there is no archive. If
21 you're saying there may be documents but the order is
22 not specific enough to identify them, why, then we will
23 hear you on that point, as it may be possible that some
24 of the documents could then be found.
25 So are you saying that there may be some
1 documents but you're not sure what they might be?
2 MR. TOMIC: (Interpretation) Yes, Your
3 Honour. Some documents may indeed exist somewhere, but
4 I cannot really claim it with any amount of certainty
5 at the present moment, and I likewise believe, Your
6 Honour, that the manner in which the request was
7 worded, I think, does give us the right to say what we
8 think about it.
9 JUDGE MAY: You can't complain about the
10 order, but if you say that --
11 MR. TOMIC: (Interpretation) No, no, I'm not
12 complaining; I'm not complaining. I am not questioning
13 the right of the Prosecution to request whatever kind
14 of documentation they like.
15 JUDGE MAY: No, the point I'm making is
16 this: If you say that you could identify the documents
17 in some way if the order was rephrased or something of
18 that sort, if that is what you're saying, how is it
19 that the order should be rephrased to enable you to
20 identify the documents?
21 MR. TOMIC: (Interpretation) Let me quote a
22 very simple example. It is not -- the time or the
23 subject of any individual document are not indicated.
24 It is quite possible that the Prosecution is asking for
25 a series of documents which have become irrelevant in
1 the meantime. The Prosecution's request -- and I
2 really do not want to go into it; I shall try to write
3 a brief in order to explain our view on the matter --
4 but the Prosecution's request is derived from a
5 specific concept which again comes from certain views
6 taken in advance. If it says, well, the head of state
7 of one State has issued to a citizen of another
8 State --
9 JUDGE MAY: Mr. Tomic, we are not going to
10 hear argument about the order. I thought that what you
11 were saying was that some of these documents may exist
12 but the order was too vague, or something of the sort,
13 for you to identify it. But that is apparently not
14 what you're saying.
15 Now, apart from complaint about the order,
16 have you got any other points you want to make?
17 MR. TOMIC: (Interpretation) Mr. President, to
18 put it mildly, this order is rather unique, and there
19 is a tone in it which I find unacceptable.
20 JUDGE MAY: Look, Mr. Tomic, it's not for you
21 to complain about the order, and I have said that more
22 than once, and certainly it's not for you to complain
23 about the tone of it. The order was made by this Trial
24 Chamber, and you can't go back on it or go behind it.
25 Now, if you've got nothing else to add, we're
1 going to take the break, unless my colleagues have
2 questions, which of course they can ask.
3 JUDGE BENNOUNA: (Interpretation) Mr. Tomic,
4 I'll speak French this time. A question was asked a
5 moment ago about the archives, about the existence of
6 war archives which would exist at present: Do you know
7 about them, do you have any knowledge about them, and
8 whether they are in the HVO. In view of your position
9 on the opposed, could you now answer us whether there
10 are any wartime or military archives still in
11 existence, whether there are these war archives, and
12 whether they belong to the HVO. This is one question,
13 and certainly whether they are held by the HVO; and
14 secondly, is this under the jurisdiction of the
15 Ministry of Defence of the Federation, Mr. Prce? So
16 will you please try to answer these two questions as
17 briefly as possible. Thank you.
18 MR. TOMIC: (Interpretation) Your Honours,
19 your question had also an introduction as regards my
20 role in the HVO. Then I need to tell you that I have
21 no role in the HVO, and this has been the case for a
22 long time, even though I'm proud to say that I joined
23 the HVO as a volunteer, with a rifle in my hands, at
24 the time when many people who at present swear by the
25 BH were on the run, and allied themselves with those
1 who were attacking the BH at the time. So I do not
2 have any role in the HVO.
3 Without additional consultation, without
4 seeking additional advice, I could not really tell you
5 what is the exact situation with the archives at
6 present. But since you called me out, and since I am
7 being mentioned in this summary, I was absent for a
8 while of late, because a few months ago, I submitted a
9 request to the Court identifying some problems and some
10 deviations, as I see them, for which this Trial Chamber
11 now has difficulties in its work.
12 From simple terminological matters, I'm very
13 grateful to Mr. Ahmic for making it clear that
14 Mr. Bicakcic is the Prime Minister of the Federation of
15 BH, whereas this summary talks about the Prime Minister
16 of BH, and that is the same difference as between the
17 Prime Minister of Scotland and the Prime Minister of
18 the United Kingdom.
19 For several years, this Tribunal -- I have
20 not been able to prove some elementary things in this
21 Tribunal: That there is no such thing as the Republic
22 of Bosnia-Herzegovina, that the request of the
23 Prosecution is based on some fictitious ideas. Of
24 course I cannot prove it all. I can't. What I cannot
25 prove to this Chamber -- that is, to another Chamber,
1 not to you, but you are bearing the consequences of it
2 -- I cannot, because nobody ever wanted to answer my
3 motions. I requested an investigation into the work of
4 the Court, or rather the Prosecution, and I believe
5 that any investigation would result in the resignation
6 of a number of persons in this Tribunal. Nobody has
7 answered this.
8 JUDGE MAY: Mr. Tomic, you are here to give
9 us an explanation about specific matters, not to make a
10 speech, if I may say so.
11 JUDGE BENNOUNA: (Interpretation) I am really
12 sorry that you failed to respond, Mr. Tomic. I am
13 really sorry that you failed to answer my question;
14 that is, you evaded the answer to my question.
15 MR. TOMIC: (Microphone not activated)
16 THE INTERPRETER: Microphone, please.
17 Microphone for Mr. Tomic, please.
18 MR. TOMIC: (Interpretation) Mr. President,
19 Your Honours, I am not hesitating to answer, and please
20 do not understand this as a lack of respect that I have
21 for the Judges or for the Prosecution. With a
22 situation which is not an ordinary situation, which is
23 very complex, there are certain relations between the
24 partners -- that is, between the Bosniaks and the
25 Croats in the Federation -- and their relations are
1 still very complicated.
2 The premise of your question is that
3 Bosnia-Herzegovina is a conventional state, a normal
4 state. But (Latin phrase), that is, law derives from
5 facts, on the fact that there is still a
6 Bosnia-Herzegovina, but we have a different high -- we
7 have a high commissioner, so we are not dealing here
8 with a conventional case, as with, shall I say, a
9 country like the United Kingdom or --
10 JUDGE BENNOUNA: (Interpretation) Mr. Tomic,
11 do not insist, really. We do have information, we're
12 quite knowledgeable, we're quite conversant with the
13 case in point. Perhaps you need some additional
14 consultation, but I have not received from you the
15 information that I sought. If you do conduct your
16 consultations, you can still supply us with the
17 information, but please, no speeches. We indeed do
18 know quite a great deal about this matter.
19 JUDGE MAY: We'll adjourn now for a quarter
20 of an hour.
21 --- Recess taken at 11.45 a.m.
22 --- On resuming at 12.08 a.m.
23 JUDGE MAY: Mr. Scott, I'm going to invite
24 you to make some submissions. Would you do so,
25 briefly, having regard to the clock?
1 MR. SCOTT: Yes, Your Honour.
2 JUDGE MAY: Having heard what's been said,
3 what do you invite us to do?
4 MR. SCOTT: May it please the Court, what we
5 would invite the Court to do in these circumstances,
6 which unfortunately are very close to circumstances
7 that the Court will see in the papers of some time ago,
8 is to identify, well, number 1, that a further order be
9 issued directing the Federation to, in fact, comply
10 with the order -- make further efforts to comply and
11 to, in fact, comply with the outstanding order in the
12 following respects.
13 We suggest that this order, as this matter
14 has now been languishing since early February of this
15 year and, as the Court knows, we are in trial on this
16 matter and the information is essential, that there be
17 a further response in 10 days from the date of the
18 Court's order.
19 That the Court direct the government of
20 Bosnia-Herzegovina to identify specific senior
21 officials, probably at the minister level, who are
22 specifically responsible for complying with the Court's
23 order. It appears, and I don't feel terribly strongly
24 about this, but it appears from the information to date
25 that the most likely responsible officials are the
1 Minister of Defence and the Minister of Justice, I
2 would say primarily the former, but because Ministries
3 of Justice tend to deal with legal and other matters
4 reflecting of governments, I think it would be
5 appropriate as well. That in addition these officials
6 be named both by -- well, by the Court and specifically
7 also by the government.
8 That is, the Court, I believe based on the
9 law that I've reviewed, Your Honours, in the
10 jurisprudence of the Tribunal, this Court has the
11 authority to issue an order to the government to
12 identify these people and, secondly, to direct these
13 people to comply with the Court's order. And, further,
14 that this will put the case in the position where, in
15 the unfortunate event that compliance is not
16 forthcoming, it will give the Court maximum leeway to
17 direct further consequences or sanction upon identified
18 individuals as opposed to an anonymous government
20 So that's what we essentially asked for, Your
21 Honour. As I understand it, again, the government
22 itself, the government of Bosnia-Herzegovina, needs to
23 direct to these identified individuals that it is their
24 responsibility, on behalf of that government, to comply
25 with the Court's order and that not to comply would not
1 only violate their own government's orders but
2 obviously ultimately this Court's orders, which then
3 would expose them, in our view, ultimately to sanctions
4 under Rule 77.
5 That's what we would seek, Your Honour.
6 Mr. Nice has asked me -- Your Honour, he has
7 re-entered the room. Could I consult with him for a
8 moment if he has additional --
9 JUDGE MAY: Yes. I think we probably need to
10 know where our authority is for issuing an order to
11 specific individuals.
12 MR. SCOTT: I think that, Your Honour, and I
13 don't have it in front of me, I'm happy to submit any
14 briefs the Court would find helpful, but I think the
15 authority can likely be found in the Appeals Chamber
16 decision in the Blaskic subpoena litigation. I don't
17 think there's authority in the first instance for the
18 Court to subpoena a specific government official, but
19 it's my understanding from that litigation that the
20 Tribunal, the Trial Chamber, has the authority to
21 direct the government, to whom it can issue orders, to
22 identify responsible persons who either have knowledge
23 of the archive or who can be directed to obtain and
24 report knowledge on the archive. The government can be
25 ordered to identify those people, who can then be
1 identified to the Court. That government can order
2 those individuals to comply with the Court's order. If
3 they fail to do so, it's my understanding, they then
4 become subject to further direct inquiry from this
5 Court, because at that point they will not only have
6 violated -- well, they will have violated their own
7 government's order, which I think under the logic of
8 the Tribunal's jurisprudence, means that they then
9 become subject to further consequences from this
11 I think some of this may be under Rule 77,
12 but specifically in terms of binding orders, I think
13 most of this is laid out in the Blaskic appeals
14 decision. But I'm certainly happy, Your Honour, to
15 file any briefs that the Court may find helpful.
16 JUDGE MAY: Thank you.
17 MR. SCOTT: If I might, Your Honour, Mr. Nice
18 has reminded me that if, in fact, part of the answer is
19 that some document -- either the documents exist, in
20 somebody's view, or that some exist and some don't,
21 again I think the Court would agree with us, we need to
22 have some position -- that needs to be stated to this
23 Court in such a fashion that there are some
24 consequences that can be visited upon that person or
25 persons if they provide this Court with false,
1 deceptive, or incomplete information.
2 With all respect to Mr. Tomic, a respective
3 coming in and making a narrative account to the Court,
4 who is not under oath, it is not a certification, it
5 doesn't get us very far. Anyone can come in, and no
6 disrespect to counsel, but anyone can come in and give
7 a narrative account to the Court, but it doesn't really
8 ultimately get us anywhere.
9 So as part of the outlined relief that we've
10 requested, Your Honour, if, in fact, part of their
11 response is going to be, "We think this happened on
12 such and such a date," or, "The archive once were here,
13 but we now understand they've been destroyed or they've
14 been taken to someplace else," that has to be done in
15 such a way that it's a certification or a sworn
16 statement, we believe, to the Court, which the Court
17 can then have, if necessary, the most serious leverage
18 on it, if you will, in case this Court is misdirected.
19 JUDGE MAY: Thank you.
20 MR. NICE: Your Honour, what I'm concerned
21 about -- I'm sorry that I have to leave, but as you
22 know, I've been sorting out this afternoon's matter and
23 I was hoping we might find more time, but I think not.
24 What I was concerned about in hearing Mr. Tomic's
25 account, which was semi-narrative, is that perhaps by
1 questions of him from the Bench, were you to decide
2 this was appropriate, the Court could flesh out that
3 narrative account and find out what it's based on and,
4 in that way, chase down the source that we want to tell
5 us what's actually happened to these documents, because
6 there was quite a lot of -- a number of his answers
7 were semi-specific and yet they weren't attributed in
8 any way. But he must be able to attribute them, and
9 he's before you today. I wondered if it was worth
11 JUDGE MAY: Thank you. Mr. Ahmic, I will
12 invite you -- Mr. Ahmic first, please. You've heard
13 what the Prosecution is suggesting. Is there anything
14 you want to say about that?
15 MR. AHMIC: (Interpretation) Your Honours, I
16 have nothing to add. I agree with the proposal of the
18 JUDGE MAY: Thank you.
19 Mr. Tomic, you've heard what the Prosecutor
20 says, that he suggests that in the light of your
21 replies to us earlier, you must be in a position to
22 assist the Court in finding these documents. Are you
23 in this position?
24 MR. TOMIC: (Interpretation) Your Honour, I'm
25 afraid my learned friend from the Prosecution
1 overestimates me. I'm not sure, from the position I
2 hold at present, that I can have any substantive
3 influence in that direction. I shall certainly inform
4 the competent persons in the Federation in detail about
5 the seriousness of the matter.
6 But whether I could, for instance, make a
7 statement under oath, I could not say, because under
8 the legal system with which I acted as a defence
9 attorney for years, the institution of oaths was
10 applied to quite different cases, and I must admit that
11 the institution of the taking of an oath in this case
12 is not quite clear to me. What is clear is that anyone
13 speaking in court must do so on the basis of his
14 conscience and honesty, and there is no doubt about
15 that. But I think that colleague Ahmic will agree with
16 me that according to our legal system, the institution
17 of an oath was applied in quite different cases and
18 only exceptionally.
19 JUDGE MAY: The point, Mr. Tomic, is this:
20 Do you know where these documents might be?
21 MR. TOMIC: (Interpretation) No, Your Honour,
22 at this point in time. May I add, if I say that I
23 don't know where they are, this does not mean to say
24 that I mean that they exist, so I should like to
25 express my reservations in that regard. My answer is I
1 do not know where they are at this point in time.
2 JUDGE MAY: Thank you, Mr. Tomic. We will --
3 MR. TOMIC: (Interpretation) With your leave,
4 may I make a technical remark?
5 JUDGE MAY: Yes.
6 MR. TOMIC: (Interpretation) The
7 representative of the Prosecution proposed that the
8 request be addressed to the government of Bosnia and
9 Herzegovina. I think it would be better to address it
10 to the government of the Federation, because according
11 to the new constitution after Dayton, there is no
12 government of Bosnia-Herzegovina, there is the
13 government of the Federation and the government of
14 Republika Srpska. So I wouldn't like to resort to
15 using these technical errors, because very often even
16 those of us living in Bosnia-Herzegovina are not fully
17 aware of the details, and I'm saying this in good
18 faith. Thank you.
19 JUDGE MAY: Very well. We will consider
20 these matters and, in due course, let you have our
22 That brings us to the second application
23 which is before us.
24 Now, Mr. Ahmic, did you want to ask for a
25 hearing in closed session about this?
1 MR. AHMIC: (Interpretation) Yes, Your
2 Honour. I made such a request, but I have been
3 informed by the Registrar that the session is open, and
4 I now agree that it should be an open session.
5 JUDGE MAY: Mr. Tomic, do you agree?
6 MR. TOMIC: (Interpretation) Yes, Your Honour,
7 I agree.
8 JUDGE MAY: Thank you.
9 This is an application by the Prosecutor,
10 dated the 16th of April, for documents. We have to
11 apply the criteria which are laid down in the Blaskic
12 appeal decision the 29th of October of 1997; i.e., that
13 the documents are specified as far as reasonably
14 possible, that the documents are relevant to issues in
15 the trial, that the production is not unduly onerous,
16 and that reasonable time is afforded for production.
17 The application, I see, is for a binding order to the
18 Federation to produce documents annexed within 45
19 calendar days.
20 Is there anything which the Prosecution wish
21 to add to their written pleading in this matter, which
22 appears to set the case out very fully?
23 MR. SCOTT: Only one, Your Honour. That is
24 that in light of a response received from another
25 government recently, and it's under seal, Your Honour,
1 but it relates to a matter that the Court will be
2 taking up tomorrow, we would seek -- I think maybe if I
3 say it this way, it will become evident. We would seek
4 to add two paragraphs. We would make an oral motion,
5 Your Honour, to add two paragraphs to the annex, which
6 would become annex 42 and 43, and if those could be
7 provided, if not already distributed. One of the
8 stacks I put out this morning was, I think, I hope, was
9 an annex. Did you distribute those? Okay.
10 JUDGE MAY: Mr. Scott, I don't know to what
11 you're referring.
12 MR. SCOTT: Yes, Your Honour. Sorry. The
13 annex to our application, which was previously numbered
14 paragraphs 1 through 41. I'm sorry, Your Honour.
15 JUDGE MAY: This one. Here we are.
16 MR. SCOTT: In light of recent developments,
17 which if the Court cares to, we can go into in ex parte
18 session because the matter is under seal by another
19 government, we would seek to add simply paragraphs 42
20 and 43, which are new. We would not add anything
21 further or comment further on our application, save for
22 the Court's questions.
23 JUDGE MAY: Now, who wants to deal with this
24 first, Mr. Ahmic or Mr. Tomic? Well, I invite one of
25 you to start off with your objections.
1 MR. TOMIC: (Interpretation) If I understood
2 you correctly, Your Honour, you're asking my objections
3 regarding the annex. I didn't quite catch the full
5 JUDGE MAY: I'm asking for your submissions
6 in relation to the application by the Prosecution for
7 this order in relation to the production of documents.
8 Of course, if you want to say anything about the
9 additional matters which are asked for in the annex, we
10 will hear your submissions on that. But we would like
11 your submissions generally on the application by the
13 MR. TOMIC: (Interpretation) I was a little
14 hasty a moment ago, and I apologise for that now. When
15 I mentioned that I had objections regarding the request
16 itself, I was thinking of the annex rather than the
17 order of the Trial Chamber, so I owe you an apology.
18 I have nothing in particular to add to what I
19 have already said. I think that the request is onerous
20 because it requests all documents, recordings, letters,
21 so it imposes maximum demands.
22 I would have certain objections of a minor
24 I see that the position of the persons from
25 whom these documents are required is not even mentioned
1 as a courtesy, and I feel that the high level of this
2 International Tribunal requires a minimum of courtesy.
3 If we do not wish to indicate "XY", the president of
4 such and such a state, but we merely say "Franjo
5 Tudjman", as an attorney I could say we don't know the
6 father's name, we don't know who you mean. There are
7 15 citizens with the same first and last name.
8 Therefore, in strictly formal terms, the identification
9 is not adequate.
10 I do not insist on this objection, but it is
11 illustrative of a certain position.
12 JUDGE MAY: Mr. Tomic, it is well that you
13 don't insist on that objection, because there can be
14 nothing in it. Now, if you have serious objections,
15 point them out, by all means.
16 MR. TOMIC: (Interpretation) Regarding the
17 definitions given by the counsel for the Prosecution,
18 it is my submission that it would be useful for the
19 Trial Chamber to bear in mind that my position is that
20 the expression -- the "Bosnian Croat forces" is a
21 pluralism, it is redundant and unnecessary, because on
22 the previous page the Prosecutor has correctly
23 explained what the HVO is, and that expression is quite
24 sufficient. That term is quite sufficient to explain
25 what the Croatian forces in Bosnia-Herzegovina are. I
1 think that the Prosecutor has skilfully introduced this
2 term merely in order to be able to introduce other
3 expressions such as "the Bosnian government forces."
4 We feel that this expression is not adequate, not
5 appropriate, and it does not contribute to a proper
6 understanding of the situation in Bosnia and
8 With all due respect for the President of the
9 Trial Chamber, let me quote a great Englishman, Bertram
10 Russell. "If you say 'nephew', then the uncle is
11 somewhere close by. If you say 'government forces',
12 then the government is nearby."
13 The Prosecutor, interestingly enough, does
14 not define the government of Bosnia-Herzegovina.
15 May I add, in passing, that the army of
16 Bosnia-Herzegovina never existed in the formal legal
18 It is a shame that the Prosecutor does not
19 request the official gazettes of the Republic of
20 Bosnia-Herzegovina. I shall take the liberty of
21 providing Your Honours with some relevant decisions.
22 Therefore, there never existed the government
23 of the Republic of Bosnia-Herzegovina. Why is this
24 important? Because the premise of the Prosecution is
25 based on a conventional State, with a government, with
1 an army, with a general staff, with the armed forces.
2 If you review the decision of the presidency of the
3 Republic of Bosnia-Herzegovina, dated the 20th of June,
4 1992, on the proclamation of a state of war, you will
5 see that even the government is not mentioned in that
6 decision. Why is it not mentioned?
7 With the President's permission, may I
8 continue this analysis?
9 When you say "the government", you have to
10 take the next step and assess that government on the
11 basis of four criteria; the ability to exercise
12 authority over the whole territory of the country; the
13 question of the population and what is happening to it;
14 three, the ability to implement international
15 treaties. So at that point in time you already had the
16 proclaimed Republika Srpska, the Croatian Community of
17 Herceg-Bosna. Later on, you had the autonomous
18 province of Western Bosnia, headed by Fikret Abdic, one
19 of the Muslim leaders.
20 So a government, in the conventional sense,
21 does not exist, and therefore "government forces", as a
22 term, is inappropriate. "Muslim forces" would be more
23 appropriate. I do not wish to impose any term,
24 regardless of the fact that in all armies, that is, the
25 HVO, of which I was a volunteer, since my personal name
1 was mentioned, let me say that I opened my own private
2 attorney's office, and as Thomas Mann says, if you are
3 German, you have to suffer the same fate as Germany.
4 As a Croat, I was with my people, with bakers, taxi
5 drivers, and others, and I take pride in that,
6 regardless of the fact that the tendency of this
7 Tribunal to demonise the HVO; therefore --
8 JUDGE MAY: That was not a proper comment,
9 and you should not be making it. Now, have you got
10 anything further to say, relevant --
11 MR. TOMIC: I do apologise.
12 JUDGE MAY: -- relevant not to a political
13 speech, but to this application? If not, we shall
15 Now, is there anything you want to add?
16 MR. TOMIC: No, no, I do not wish to add
17 anything else. Thank you for hearing me out.
18 JUDGE MAY: Very well. We'll consider this
19 application, too, and give our reasons and order in due
21 MR. AHMIC: (Interpretation) Mr. President?
22 JUDGE MAY: Mr. Ahmic, you want to say
23 something? I thought you had had -- no, I'm sorry, you
24 didn't have a go. Of course, we will hear you.
25 MR. AHMIC: (Interpretation) thank you.
1 Mr. Tomic and I are authorised representatives of the
2 Federation at this hearing, so I thought that I should
3 also make my voice heard on this occasion.
4 As one of the authorised representatives of
5 the Federation, I fully support the Prosecutor's
6 request. I think there are no legal obstacles when it
7 comes to the legislation in my country, and I also
8 believe that the legal regulations underlying the
9 International Tribunal also make it quite lawful for
10 such an order, for such a request to be addressed to
11 the Federation of Bosnia and Herzegovina.
12 So I have no objections whatsoever; I fully
13 endorse the Prosecutor's request. And as for
14 Mr. Tomic's ten-minute-long speech, I think you were
15 quite right in cutting it short, because I do not
16 really think that this is the proper place for it.
17 Thank you very much.
18 JUDGE MAY: Can we make sure, Mr. Ahmic, that
19 we have all the documents which you handed in today? I
20 have one -- perhaps at the end of the hearing you could
21 check with the registry to make sure they have the
22 documents. I have one which I will hand over now to
23 the registry.
24 MR. AHMIC: (Interpretation) Yes, Your
1 JUDGE MAY: Yes, thank you.
2 MR. SCOTT: Your Honour, just a housekeeping
3 matter --
4 THE INTERPRETER: Microphone, please.
5 MR. SCOTT: The same type of housekeeping
6 matter, Your Honour, that the Court was just
7 addressing: If the Court -- just for the purposes of
8 the record, in case there is any possible future
9 consideration or what have you, can I propose -- and
10 really the numbering doesn't -- whatever the registry
11 is happy with is fine with me. I would simply propose
12 offhand that the summary chart, for purposes of
13 identification, be Prosecution 1; that the packet of
14 exhibits be Prosecution 2; and that the confidential
15 report that was tendered only to the Court be
16 Prosecution 3. And again, only for the purposes of
17 having no dispute about what these items were, for the
18 record. Thank you.
19 JUDGE MAY: Very well, we'll adjourn now.
20 We'll sit again to hear the next matter in an hour and
21 a half, 10 past 2.
22 --- Whereupon the hearing adjourned at
23 12:40 p.m., sine die.