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  1. 1 Thursday, 20th May, 1999

    2 (Closed session)

    3 --- Upon commencing at 10.05 a.m.

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    13 page 2794 redacted – closed session (ex parte)













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    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

    17 representatives.

    18 The order, as I said, was the 4th of February

    19 of this year for the production of documents within 60

    20 days.

    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.

  4. 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

    10 Chamber.

    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

  5. 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

  6. 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

  7. 1 helpful for the Chamber generally if I say just the

    2 following:

    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

  8. 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

    8 research.

    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

  9. 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

    10 answered.

    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

    23 example.

    24 So these documents would make your task

    25 infinitely easier, would indeed save an enormous amount

  10. 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

  11. 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

  12. 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

  13. 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

    24 Jelavic.

    25 Going to the top of the next page, page 3 of

  14. 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

  15. 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

  16. 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

    13 staff.

    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.

  17. 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

  18. 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

    5 defence.

    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

    21 materials."

    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

  19. 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

    21 archive.

    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

  20. 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

  21. 1 representatives of the Federation, and it may be

    2 convenient to hear from Mr. Ahmic first.

    3 MR. AHMIC: (Interpretation) Yes, Your

    4 Honours.

    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

  22. 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

    6 Tribunal?

    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

    20 Prosecution.

    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

  23. 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

    8 that.

    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

  24. 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

  25. 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

    5 available.

    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

  26. 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

    14 documents."

    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

  27. 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

    9 all.

    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

    25 disposal.

  28. 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

    7 Defence?

    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

    23 Justice.

    24 I should like to conclude that this report,

    25 as one authorised with the Federation, that this report

  29. 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.

  30. 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.

  31. 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

    8 institutions."

    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

  32. 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

    20 institutions?

    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

  33. 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. Price’s 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

  34. 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,

  35. 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

  36. 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

    23 Justice.

    24 You have pointed us to the letter of the 3rd

    25 of June '97 from the Minister of Justice, Mato Tadic.

  37. 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

  38. 1 --

    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

    11 ministry.

    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

  39. 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

    15 Chamber.

    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

  40. 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

  41. 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

  42. 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

  43. 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

  44. 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

  45. 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

  46. 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,

  47. 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

  48. 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?

  49. 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

  50. 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

    19 organisation.

    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

  51. 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

  52. 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

    10 Chamber.

    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,

  53. 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

  54. 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

    10 pursuing.

    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

    17 Prosecution.

    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

  55. 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

  56. 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

    21 decision.

    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?

  57. 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,

  58. 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.

  59. 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

    4 translation.

    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

    12 Prosecution.

    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

    23 nature.

    24 I see that the position of the persons from

    25 whom these documents are required is not even mentioned

  60. 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

  61. 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

    7 Herzegovina.

    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

    17 sense.

    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

  62. 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

  63. 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

    14 adjourn.

    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

    20 course.

    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.

  64. 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

    25 Honour.

  65. 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.



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