1 Monday, 31st May 1999
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 2.58 p.m.
5 THE REGISTRAR: Good afternoon, Your
6 Honours. This is case number IT-95-14/2-T, the
7 Prosecutor versus Dario Kordic and Mario Cerkez.
8 JUDGE MAY: Mr. Smith, if I may address you.
9 This is your application, as I understand it, to
10 exclude evidence obtained from a search executed in
11 September of last year in Vitez by the representatives
12 of the Office of the Prosecutor. It may simplify
13 matters if I briefly indicated what it appears to me
14 are the issues in this matter.
15 The Defence argue, on behalf of Mr. Kordic,
16 that there was an illegal search by the Office of the
17 Prosecutor of the premises of a Bosnian government
18 agency and evidence was seized in violation of the
19 rights of the Republic of Bosnia-Herzegovina, and you
20 allege, Mr. Smith, the basic principles of criminal
22 The cooperation and assistance of the Bosnian
23 authorities was not sought as required by Bosnian law
24 on cooperation with the Tribunal and, you said,
25 customary international practice. A search warrant,
1 you say, was executed without regard to the authorised
2 scope of the search in a different location and, you
3 say, without providing a detailed inventory and the
4 document have not been returned. Therefore, you argue
5 that all the documents recovered should be excluded.
6 There seems, in fact, on the evidence to be
7 very little dispute about what happened. Please
8 indicate in due course what you say is in dispute. We
9 have the affidavits of Mr. Zigonjic, the head of the
10 defence office at Vitez, with attached exhibits; the
11 affidavits of Mr. Tadic, the Minister of Justice of the
12 federation; and Mr. Antunovic, the head of the defence
13 administration in Travnik.
14 You also ask, and I don't know whether this
15 is being dealt with by agreement, for an inventory of
16 everything that's been recovered during the search.
17 The Prosecution response of the 5th of
18 February we have, arguing that your client doesn't have
19 the locus to challenge this, his rights not having
20 being affected, only those of the government. They
21 argue that the Prosecutor was entitled to carry out the
22 investigation, Article 18(2) of the Statute saying that
23 the Prosecutor has the power to collect evidence and in
24 so doing she may, as appropriate, seek the assistance
25 of state authorities. Rule 39 of the Rules allow the
1 Prosecutor to collect evidence and undertake such other
2 matters as appear necessary for completing the
3 investigation and seek to that end the assistance of
5 They argue that the Prosecutor wasn't
6 required to act only through the authorities of the
7 federation and, accordingly, the evidence should not be
8 excluded. The investigation, they say, was carried out
9 in a lawful and proper manner.
10 They say they're willing to provide a written
11 list of the relevant documents in relation to the
12 inventory, but they oppose a request for a full
14 We have had their summary of evidence.
15 Mr. Nice, if I may address you for one moment on this
16 topic. The declarations, although it's true that they
17 were summarised in an earlier document which you
18 submitted, didn't reach, speaking for myself, my desk
19 until this morning.
20 MR. NICE: I'm very sorry about that.
21 JUDGE MAY: They were ordered by the 17th of
22 May, were dated the 28th of May.
23 MR. NICE: Our understanding of the order was
24 that the summary was wanted by the 17th. The summary
25 was provided and the detailed documents were provided
1 later. They were certainly filed last week and I'm
2 sorry they didn't reach your desk until today, but that
3 was our understanding.
4 JUDGE MAY: Very well. Mr. Smith, it's for
5 you to begin. As I say, we've had these papers, and I
6 would invite you to deal with the matter as
7 expeditiously as you feel able. Having regard to this
8 fact, I believe there's a witness here, and if there
9 is, we would be anxious to get on with the evidence as
10 soon as we can.
11 MR. SMITH: Thank you, Your Honour. This
12 request, this motion, raises three basic issues, quite
13 fundamental issues, I believe, particularly the first.
14 The first issue is whether the UN Security
15 Council has granted to the Prosecutor direct
16 enforcement authority for armed search and seizure in
17 sovereign states, a matter, I would suggest, of some
19 Secondly, whether, if it has, the Prosecutor
20 has properly exercised that authority in this case.
21 Third, the question of locus standi but in
22 light of the Tadic appeals decision, in our judgement
23 that establishes standing. I will not dwell on this
24 further until the Trial Chamber wishes to go into the
1 Let me state very briefly the relevant
3 JUDGE MAY: Unless they are particularly
4 relevant to your submissions, we have had the chance of
5 reading all this.
6 MR. SMITH: We should proceed directly to the
7 argument, Your Honour. First, the question of
8 authority. Neither the Statute, in our judgement, nor
9 the Rules of the Tribunal grant the Prosecutor
10 authority to take direct enforcement action in the form
11 of armed search and seizure operations within the
12 boundaries of a sovereign state without their consent
13 and/or participation, and we start with the proposition
14 that the Tribunal and the Office of the Prosecutor, as
15 an international organisation, is a body of limited and
16 delegated authority.
17 We point to an ICJ 1996 advisory opinion on
18 the use of nuclear weapons that both we and the
19 Prosecutor have cited, which establishes an earlier
20 decision. And speaking of the European Community, a
21 highly developed organisation "as the European
22 commission" -- this is a quotation: "As the European
23 commission is not a state but an international
24 institution with a special purpose, it has only," and I
25 underline that word because it is in our quote but in
1 the quotation in the Prosecutor's brief they picked up
2 the quotation just after that word, "It only has the
3 functions bestowed upon it by the definitive Statute
4 with a view to the fulfilment of that purpose but it
5 has the power to exercise those functions to their
6 fullest extent insofar as the statue does not impose
7 restrictions upon it."
8 This establishes that the Tribunal is not a
9 state and is not sovereign. It establishes that it is
10 a body of limited and delegated authority but with
11 fulsome right to exercise the authority delegated. In
12 this case, by the Security Council through the
14 Third, it is true, I believe, that in any
15 case, as even a sovereign nation would be, both the
16 Tribunal and the Prosecutor, however independent the
17 Prosecutor may be, are bound to the limitations imposed
18 by international law and that the Security Council in
19 enacting a Statute enacts it, as does a legislature
20 generally, against the background of applicable,
21 binding law, in this case, international law.
22 Insofar as the Tribunal is authorised and the
23 Prosecutor's office is authorised to exercise their
24 functions "to the fullest extent," that must mean to
25 the fullest extent allowed by law, that is to say, the
1 international law.
2 I will not dwell on the principles of
3 international law applicable to the use of force in
4 search and seizure operations upon the territory of a
5 sovereign state because that matter is dealt with at
6 some length in our briefs. But it is clear that under
7 international law, any entity, other than the sovereign
8 state itself, that wishes to exercise what our
9 essentially executive powers of sovereignty within the
10 territory of a sovereign state must have the consent
11 and the assistance of the sovereign state, and there
12 are bilateral and multilateral treaties, as well as
13 model conventions, commonwealth schemes that lay out
14 the mutual judicial assistance provisions which apply.
15 It is important, turning first to the
16 question of the language of the Statute, to note in
17 general that the Tribunal has been granted judicial
18 authority and not executive authority, and it is also
19 important to note that given the general international
20 law prohibiting the exercise of armed search and
21 seizure operations in the territory of a sovereign
22 country, any such power granted by the Statute, the
23 language of which we will examine in a moment,
24 necessarily would need to be express, quite express,
25 because it would run counter to the general thrust of
1 international law and the rights of the member states
2 of the UN that enacted the Statute or that authorised
3 the Statute through the Security Council.
4 I think it might be useful to look at what
5 people have said about this question of the enforcement
6 authority of the Tribunal. We have set out in our
7 brief at page 11 statements in the first report of the
8 ICTY, a statement by the Court in the Blaskic appellate
9 judgement on subpoenas, statements by then President
10 Cassese of the Tribunal, statements by President
11 McDonald during her tenure as recently as November of
12 1998 after the search and seizure in question, and in
13 our brief requesting an inventory and notice, we have
14 also quoted the Prosecutor herself in an interview only
15 days before this search and seizure, all of which stand
16 directly for the proposition that they read the Statute
17 as providing no direct enforcement authority and no
18 authority for armed search and seizure unilaterally
19 exercised in sovereign states.
20 JUDGE MAY: Mr. Smith, let me stop you.
21 Whereabouts in the brief, first of all, are we going to
22 find these comments referred to?
23 MR. SMITH: They're on page 11 and 12, Your
24 Honour. I had planned to read them but decided not to
25 in light of Your Honour's injunction for brevity.
1 JUDGE MAY: Just so that we have a note of
3 MR. SMITH: Yes. At pages 11 and 12,
4 footnotes 22, and then a commentator to the same
5 effect, Mr. Fredereik Harhoff writing in the
6 international view of the Red Cross in footnote 21.
7 JUDGE MAY: You referred also to the
8 application for an inventory.
9 MR. SMITH: Yes, Your Honour, and that will
10 take me a moment because I have it in my bag. May I
11 suggest that I proceed and ask one of my co-counsel to
12 find that quotation in that brief, Your Honour, and we
13 will supply you the page number in a moment.
14 Let me turn then to Article 16, cited by the
15 Prosecutor as a potential basis for authority. Article
16 16 provides that OTP is "responsible for"
17 investigations of war crimes, but that is not a grant,
18 it seems to me, of power in the face of the sovereign
19 rights of countries. It further provides that the OTP
20 shall act "independently," but that cannot mean
21 arbitrarily or lawlessly, and this Trial Chamber must
22 be the forum in which to judge the lawfulness of the
23 Prosecutor's conduct under Article 95 of its Rules.
24 Let me turn then to Article 18, which Your
25 Honour has mentioned in his summary. This provides
1 first in its first subsection that the OTP shall
2 "initiate investigations" and "assess information."
3 That does not, in our submission, constitute a direct
4 grant of authority to engage in armed searches in a
5 sovereign territory without consent.
6 In Article 18, paragraph 2, we have the
7 language authorising the Prosecutor to conduct "on-site
8 investigations" and to "collect evidence." That, Your
9 Honours, is as good as it gets in terms of language
10 authorising this activity in the Statute.
11 The Prosecutor, in briefs, argues that the
12 activity undertaken constitutes, and they characterise
13 it this way continuously through their brief, on-site
14 investigation and collection of evidence. In their
15 affidavits or in their declarations, however, they
16 refer over and over again to the activity as one
17 involving seizure. Thus, in the declaration by Pantz,
18 the word "seizure" is used to characterise the activity
19 undertaken at paragraphs 30, 32, 37, 47, 48, 49, 55,
20 56, and 57. Likewise, in the declaration by Dornan,
21 the word "seizure" is used, collected and seized, in
22 paragraph 21 and the same thing in the affidavit by
23 Gillissen at paragraph 15.
24 In short, Your Honours, this was not just a
25 consensual collection of evidence and on-site
1 investigation. This was, in fact, a coercive,
2 inclusive search and seizure operation backed up by and
3 expressly authorised to use armed force. What was done
4 here was, therefore, the exercise of direct enforcement
6 JUDGE MAY: Before you leave paragraph 2 of
7 Article 18, perhaps you can help us with the second
8 sentence. It may be we're going to deal with it
9 anyway, in which case I apologise, but it states that
10 in carrying out the tasks, that is, the power to
11 collect evidence and to conduct on-site
12 investigations, "In carrying out these tasks, the
13 Prosecutor may, as appropriate, seek the assistance of
14 the State authorities concerned." Now, your argument,
15 Mr. Smith, is that that should read "must"; is that
17 MR. SMITH: No, Your Honour. I would submit
18 that it must be done, it is appropriate to be done and
19 it must be done, not because of the language here but
20 because of the binding international law obligations,
21 where there is an armed search and seizure action
22 taken, when it is that form of collecting evidence, it
23 must be done. But there are many forms of collecting
24 evidence where it need not be done, at least not in
25 many countries.
1 Now, there is a decision of the French
2 Constitutional Court, their highest court, which is not
3 in our brief and I brought it to the attention of the
4 Prosecutor, in which the search and seizure provisions,
5 the investigation provisions really, of the lone treaty
6 involving the international criminal court were at
7 issue, and the question was whether the French
8 constitution had to be amended before that treaty could
9 be ratified. The French Constitutional Court found
10 that even in the case of a non-coercive investigation,
11 it would violate the French constitution if the
12 prosecutor at that point, the prosecutor of the
13 international criminal court, were to proceed without
14 going through the requirements under French law.
15 I am not making that argument here because in
16 many countries I think it might well be lawful for the
17 prosecutor to undertake the same form of non-coercive
18 investigation that we, as the Defence, can undertake.
19 It is when the Prosecutor takes upon herself the
20 attributes of sovereignty to exercise, through armed
21 force, a search and seizure, which the Defence as
22 private parties could never do in a country, it is at
23 that point that we argue, not because of the may/shall
24 language here but because of the general obligation of
25 this Tribunal and the Prosecutor to comply with
1 constraining international law which the Prosecutor
2 generally ignores in their brief, as we have pointed
4 JUDGE MAY: What was the point of putting
5 that sentence into Article 18? If your argument is
6 right, it's completely unnecessary.
7 MR. SMITH: I think first it alerts the
8 Prosecutor that in many cases, it may not just be
9 appropriate but necessary, because there are a wide
10 range of these types of investigatory activities. So
11 in France, it alerts the prosecutor to do even
12 consensual activities, in effect; they must notify the
13 French authorities. In the case of this kind of
14 aggressive, armed search and seizure, then it alerts
15 them that they must investigate whether they are
16 constrained, and they are constrained to follow
17 international legal requirements, Your Honour.
18 JUDGE ROBINSON: Mr. Smith?
19 MR. SMITH: Yes, Judge Robinson.
20 JUDGE ROBINSON: The second sentence in
21 Article 18(2) doesn't deal with consent, it deals with
22 assistance which is quite a different matter.
23 MR. SMITH: Your Honour is quite correct in
24 that, and it seems to me that it can be explained on
25 those grounds as well.
1 If I might go on to Article 29, Your Honour,
2 which is related, Article 29 provides a duty to
3 cooperate which would not be there, in our judgement,
4 unless it were necessary. Therefore, it confirms the
5 analysis that we make of the Statute. There would be
6 no need for requests of cooperation, nor a duty on
7 states to respond if the Prosecutor had free reign in
8 conducting activities like an armed search and seizure
9 in sovereign territory.
10 JUDGE MAY: Following your argument, the
11 logic of it is that any state that wishes to prevent
12 the Prosecutor carrying out her duties is entitled to
13 do so and as against such a refusal the Tribunal is
15 MR. SMITH: First, Your Honour, that is not
16 the situation we face here, because there is Bosnian
17 legislation and there is a memorandum of understanding,
18 that I will come to in a moment, governing the
19 assistance to be given to the Prosecutor and to the
20 Tribunal, number one. Number two, providing a
21 methodology similar to that employed in bilateral
22 treaties throughout the world for judicial assistance
23 on matters like search and seizure when armed force is
25 In the first instance, I do not think we need
1 to reach that question on these facts.
2 JUDGE MAY: So you're saying that they should
3 have applied to the federation --
4 MR. SMITH: Yes, Your Honour.
5 JUDGE MAY: -- to carry out the search
7 MR. SMITH: Yes, Your Honour. That is the
8 basic methodology applied in bilateral treaties on
9 judicial assistance.
10 JUDGE MAY: What would happen if the entity
12 MR. SMITH: In that instance, Your Honour,
13 the remedy for the Prosecutor and the Tribunal is to go
14 to the Security Council.
15 JUDGE MAY: What would happen to the
16 documents, the other matters which were going to be
17 seized meanwhile?
18 MR. SMITH: They might or might not stay in
19 their original state. That's quite obvious. I concede
20 that as a matter of fact. Nonetheless, it seems to me
21 that what is essentially at stake in the Prosecutor's
22 argument is whether the end justifies the means. The
23 means have simply not been provided on the face of the
24 Statute, other than through the exercise of national
25 sovereignty and consent.
1 For example, I think that if the Prosecutor
2 attempted the same exercise in France, or the United
3 States, or in Germany, the Prosecutor would be in some
4 difficulty and the states involved would not think that
5 they had granted the Tribunal or the Prosecutor the
6 authority to engage in an armed search and seizure on
7 their territory.
8 With Your Honour's leave, I would move on to
9 the Rules.
10 JUDGE MAY: Yes, of course.
11 MR. SMITH: The first thing to say about the
12 Rules is they do not add to the statutory power.
13 Rule 39 allows the Prosecutor, again, to collect
14 evidence and conduct on-site investigations. It also
15 allows, in (ii), the Prosecutor to "undertake such
16 other matters as may appear necessary ..." That
17 language, in our submission, has to mean such other
18 matters as are authorised by Statute and as appear to
19 be necessary because the Rules cannot expand on the
20 statutory authority.
21 In short then, Rule 39 does not and cannot
22 provide the Prosecutor with more authority than the
23 Statute does, and the Statute allows the Prosecutor to
24 obtain a search warrant and to take it to the relevant
25 national government to have it processed in the normal
1 way subject to national law, as I've indicated
3 I would turn now, Your Honour, to Bosnia and
4 Bosnian law. Bosnia does not allow armed search and
5 seizure operations on its sovereign territory.
6 First, it would not matter to this case if it
7 did. It could not grant the Prosecutor's office
8 authority it did not already have under the Statute.
9 Secondly, even if that were not the case, it
10 is useful to look at several documents that we have
11 cited and the Prosecutor has cited in briefs to see
12 whether they provide the basis for the authority to the
13 Tribunal or the Prosecutor to engage in an armed search
14 on Bosnian territory without regard for Bosnian law,
15 indeed, without advanced notice, much less advanced
17 I would start, Your Honours, with the
18 3 December, 1994 memorandum of understanding.
19 JUDGE MAY: Where would we find that?
20 MR. SMITH: It is cited in our brief. I have
21 copies with me if the court does not have access to it
22 and would be happy to pass them out if you like.
23 JUDGE MAY: It may be more convenient if you
24 give it to us now.
25 MR. SMITH: The first thing to note, Your
1 Honours, about the memorandum of understanding is that
2 it is pre-Dayton. The second thing to note about it is
3 that it is a memorandum of understanding only and it is
4 not a treaty.
5 This memorandum of understanding was signed
6 by the Minister of Foreign Affairs on behalf of the
7 government only a mere matter of months after a mixed
8 government had been provided for. There have been
9 efforts by both the Bosnian Croats and the Bosnian
10 Serbs to have it changed because they did not
11 participate in its negotiation or signing. There is a
12 new memorandum drafted and submitted but never acted on
13 by the Bosnian government. As you know, many matters
14 in the Bosnian government are effectively blocked if
15 one or more of the parties objects to the action.
16 Let me turn to the language of the memorandum
17 of understanding itself and, in particular, first to
18 the beginning, which states: "An agreement to cooperate
19 fully and unconditionally with the Prosecutor of the
20 Tribunal in the performance of his rights, duties and
22 That language, Your Honours, provides for
23 cooperation as required and guided under Bosnian law.
24 Thus, any bureaucrat, under Bosnian law, who has
25 discretion to exercise would be required to exercise
1 that discretion so as to cooperate fully and
2 unconditionally within his legal constraints.
3 Secondly, I would point Your Honours to
4 paragraph 11, which deals with documents and other
5 investigative source material. It provides that the
6 Prosecutor may send investigators to examine documents,
7 et cetera, gathered by the authorities of
8 Bosnia-Herzegovina in relation to international
9 potential violations of international war crimes.
10 It provides, again, that the authorities will
11 cooperate with such investigators and allow them access
12 to such documents, indices, and other materials so that
13 they can examine them, copy them, or otherwise
14 reproduce them. It does not provide for their
15 searching and seizing them.
16 If original documents are required there is a
17 provision under which investigators and the authorities
18 make special arrangements for the original documents to
19 be securely transmitted to The Hague. In this case,
20 the original documents were seized and taken
21 unilaterally to The Hague.
22 So that, Your Honours, this paragraph, to the
23 extent that it was intended to cover search and seizure
24 at all, has been violated, and I suggest that it was
25 intended to cover cooperative consensual gathering of
1 evidence, not the unilateral armed seizure of
2 evidence. It does not authorise that.
3 The law that governs --
4 (Trial Chamber confers)
5 JUDGE MAY: Mr. Smith, I'm sorry we
6 interrupted. We were considering a matter. If you'd
7 like to go on.
8 MR. SMITH: Thank you, Your Honour.
9 Paragraphs (v) and (vi) of the memorandum of
10 understanding cited by the Prosecutor speak only of
11 collecting evidence and on-site investigating, not
12 armed search and seizure operations.
13 The law that applies within Bosnia to
14 requests from outside the country for search warrants
15 to be executed is cited in our brief and it is the 1996
16 law on cooperation with the ICTY, which is subsequent
17 to the memorandum of understanding and which is a law
18 and thus it overrides, to the extent of any
19 inconsistency, a prior memorandum of understanding
20 which is not a treaty.
21 In Article 27, which we cite, any final order
22 to collect evidence must be executed by the Ministry of
23 Justice and Administration in cooperation with the
24 Interior Affairs Ministry and the Foreign Affairs
25 Ministry. Article 6 of that law designates the code of
1 criminal procedure of Bosnia to regulate the details of
2 judicial assistance.
3 The code of criminal procedure, in turn, also
4 cited in our brief, contains Articles 518 covering
5 requests for warrants to collect evidence which are to
6 be submitted to the Ministry of Foreign Affairs, and
7 Article 519(1), which requires the Ministry of Foreign
8 Affairs to submit such requests to a competent court,
9 usually a court of first instance, and this is the
10 traditional, time-honoured international law
11 methodology for judicial assistance.
12 It is in stark contrast, I might add, to
13 provisions in the laws of some of -- at least one of
14 the countries involved in the former Yugoslavia which
15 prohibits extradition, for example. That is not this
16 situation. This is a situation that Bosnia has
17 provided the mechanism required by its duties under the
19 There is a similar cooperation provision in
20 the Bosnian constitution which is to the same effect,
21 that officials are obligated to cooperate, obviously
22 within the bounds of legal requirements and, therefore,
23 it governs the exercise of their discretion.
24 JUDGE ROBINSON: Mr. Smith, you refer to the
25 traditional, time-honoured international methodology
1 for judicial assistance. Now, that time-honoured
2 methodology deals with mutual assistance, mutual legal
3 assistance, whatever you wish to call it, between
4 states, inter-state.
5 In this environment, we're not dealing with
6 mutual legal assistance between states. The origin of
7 this entire exercise is a resolution of the Security
8 Council acting on the Chapter VII of United Nations's
9 Charter, an exercise of its enforcement policy.
10 So in my view, the analogy that you keep
11 drawing with mutual legal assistance treaties, and
12 which in my former career I worked for quite a long
13 time, is really inapposite because that's a consensual
14 basis. It must be a consensual basis as between states
15 and you have a treaty. Here the basis of this exercise
16 is not a treaty, it is a resolution of the United
17 Nations, of the Security Council acting on the Chapter
18 VII. I think there is a vast difference that you need
19 to take up.
20 MR. SMITH: I take Your Honour's point, and I
21 would suggest that the procedures applicable under
22 International Law as between sovereigns, when one
23 sovereign attempts to exercise coercive power within
24 the territory of another sovereign is a good guide to
25 what the Security Council would have intended and did
1 intend in enacting the language that we've just
2 examined of the Statute, because the language of the
3 Statute applies to all Member States and a holding that
4 there is power to exercise coercive armed search and
5 seizure in any member state of the UN created by the
6 statute, notwithstanding this normal pattern even among
7 sovereign states.
8 Of course, as I started out, the United
9 Nations and this Tribunal is not a sovereign entity.
10 It is an international entity, as the case law in the
11 ICJ indicates, which in the case of the UN has only
12 the powers authorised by its charter, and in the case
13 of this Tribunal has only the powers authorised and
14 delegated to it under its Statute.
15 So it seems to me the normal pattern of
16 international law goes very strongly, at a minimum, to
17 the intent, the likely intent of the Security Council
18 in granting these powers, and it seems also to me that
19 it provides an international law backdrop to the
20 customary international law. This Tribunal is
21 obligated to follow the rules of customary
22 international law, and the rule of legality is a matter
23 going to procedure as well as substance. So I would
24 link it back into a legal obligation on the Tribunal in
25 that regard as well, Your Honour.
1 But your point is quite well taken about the
2 consensual nature of those bilateral treaties. I
3 believe, however, they reflect, in effect, customary
4 international law.
5 Let me then proceed with the several points
6 that the Prosecutor makes, and I shall be brief on the
7 authority argument now in finishing. The Prosecutor
8 cites the primacy of the ICTY in its jurisdiction over
9 adjudication as a bolster for its exercise of what are
10 essentially executive, non-judicial search and seizure,
11 armed search and seizure operations, and I suggest to
12 you that simply to state that proposition explains why
13 that law is inapposite. It applies to adjudication,
14 and there is primacy there, and it does not apply to
15 this sort of activity.
16 They also cite the Blaskic Appeals Chamber,
17 and I have already indicated the quotation from that
18 Appeals Chamber that reflects directly the fact that
19 search and seizure must be done through the use of the
20 state activities involved, and, in any case, as our
21 brief indicates, that case deals with witness
22 interviews and witness protection, a different matter.
23 The Prosecutor also cites their own Statute.
24 We do, and they reply on that, that it is a
25 treaty-based, consensual matter, not a matter of the
1 Article 7 enforcement authority, but I would argue that
2 what it provides in the way of power for search and
3 seizure reflects the current customary international
4 law, and it requires the consent of the affected
5 state. It also reflects what the Security Council
6 would have intended and did intend for the same reasons
7 I just outlined to Your Honour.
8 Now, the Prosecutor makes several other
9 implicit responses in their brief in the nature of, it
10 seems to me, that when you think you're strong on the
11 facts, try to argue the facts. The Prosecutor says
12 there's a great need in this situation for these powers
13 to be possessed by the Prosecutor, and I go back to the
14 proposition I articulated earlier in response to a
15 question: No matter how great the need, the end cannot
16 justify the means if the means are not granted in the
17 Statute, and we've examined the language.
18 Secondly, they have asserted over and over
19 that they have acted in a polite fashion, as it were,
20 when they undertook this investigation and that the
21 Bosnian Croats who were searched and whose material was
22 seized had offered them coffee. Nonetheless, Your
23 Honours, a polite attitude by a bank robber cannot
24 justify a bank robbery. It cannot overcome the lack of
25 authority, and there was a threat of armed force
1 present. There's simply no question about that. The
2 Bosnian Croats, once they had made a decision that
3 blood should not be spilled on this question, not
4 withstanding sovereignty, proved that they are not
5 nearly as obstructive as the declarations of the
6 Prosecutor's witness indicated.
7 There are several other things that the
8 Prosecutor has argued, that there's been no objection
9 by the Bosnian government officials. Well, they've got
10 the cart before the horse. What is involved here is a
11 violation of the rights of Bosnia in which consent was
12 required. There has been no consent. The fact that
13 there is not an objection lodged since then in any
14 official manner is irrelevant to the question of
15 whether the needed consent was obtained.
16 As I'm sure Your Honours recognise and, I
17 suspect, the Prosecutor recognised in engaging in the
18 search without advance notice, that government tends to
19 be deadlocked on issues that divide the communities.
20 The Prosecutor stresses that what are seized
21 are government documents, not personal documents, but
22 that simply makes the insult to sovereignty, as we've
23 said in our brief, that much more significant. These
24 were not just government documents; these were national
25 security documents. In addition, there were social
1 security documents and pension documents that bear on
2 the rights of individuals.
3 Finally, the Prosecutor has argued that the
4 Bosnian Croats, in general, have not cooperated in
5 making material available to the Tribunal and that that
6 somehow justifies this operation.
7 The first thing that I would say is that it
8 is important to focus on the fact that this is a case
9 involving two individuals, not the Bosnian Croats
10 generally. Secondly, the examples of lack of
11 cooperation cited by the Prosecutor involve only one
12 before the date of the search. Three of the ones that
13 have been cited involve a time period after the search
14 and really are not logically relevant to the situation
15 facing the Prosecutor at the time of the search.
16 Finally, we were just aware of the nature and
17 thrust of this argument last Friday when we got the
18 declarations by the Prosecutor. The declarations
19 concerning the lack of cooperation went beyond the
20 summary of evidence, and when we examined them, we
21 undertook an investigation as to the nature of prior
22 cooperation because this is obviously a matter that's
23 been going on between the Prosecutor, the Tribunal, and
24 the Bosnian government. What we found when we
25 investigated the matter was, and we just got this
1 information today and I called my learned colleague and
2 informed him about it, and he's been very helpful in
3 the further investigation of it apparently at some time
4 earlier than the search was executed, and I believe
5 probably in 1997, the Prosecutor at one point sent a
6 representative to the then Minister of Defence in
7 Bosnia, Mr. Ante Jelavic, requesting to see the
8 archives of the HVO, which, of course, at that time
9 after Dayton had become officially the archives of the
10 Bosnian Federation.
11 Mr. Jelavic issued an order authorising that
12 and sent the Prosecutor's people with that order down
13 to, I believe, Grude to examine those records. They
14 found those records in Grude. They were apparently
15 quite voluminous, and the Prosecutor's personnel
16 apparently took the position that the Bosnians should
17 provide the specific information requested, rather than
18 making the material available to them on-site, and
20 That set of events was apparently captured in
21 a letter by Mr. Jelavic to Mr. Blewitt, which I did not
22 have today but the Prosecution has been kind enough to
23 provide to me, I have only one copy, but it is a letter
24 which recites essentially these facts. The Prosecutor
25 may know more facts about this. All I know at this
1 point is the information that we were able to determine
2 over the weekend and what I find in this letter. But
3 apparently, as the letter says, the Minister was
4 informed "that for reasons unknown to me, Silvie Pantz
5 did not want to, that is, refused to examine the
6 available files and did not allow other authorised
7 officials from your office to have access to them
9 Now, I don't fully understand and know the
10 facts of this situation, but it does seem to me that at
11 a minimum, the assertion in Ms. Pantz's declaration, in
12 paragraph 4, that many requests, including some from
13 1997 and early 1998, have been completely ignored and
14 stonewalled by the Bosnian Croats who have provided no
15 assistance whatsoever, represents something of an
17 To conclude on the question of authority,
18 Your Honours, what is at issue here is quite simple.
19 First, the Prosecutor must not act unlawfully and, in
20 our judgement, did. Second, the ends cannot justify the
21 means if the authority to engage in the particular acts
22 in question, armed search and seizure on the sovereign
23 territory of a state, have not been provided by the
24 Security Council in the Statute to the Prosecutor.
25 Third, and I think this is quite important, Bosnia, if
1 it is to develop as a full-fledged, well-run,
2 internationally recognised state, it is that already,
3 but if it is to develop and fulfil its potential,
4 cannot be treated as a UN protectorate of some sort.
5 Its sovereignty must be respected. If the UN expects
6 the people in the country to take the country
7 seriously, the UN must do so as well. Finally, to
8 hold otherwise than to strike the evidence from this
9 illegal search, we submit, would send entirely the
10 wrong message to the world about the Prosecutor, the
11 nature of the Prosecutor's allowed operations, and the
12 nature of the Bosnian entity and state itself.
13 I would turn now, Your Honour, briefly to the
14 questions of the execution of the search warrant.
15 JUDGE BENNOUNA: (Interpretation) Before going
16 on to that particular issue, Mr. Smith, there's a
17 question I would like to put to you.
18 At this point of your arguments, you have
19 shown that you were taking as a basis the need of the
20 obligation for our Tribunal to respect state of
21 sovereignty, and you referred us to the Statute, you
22 referred us to the Rules also, and you have also
23 recognised, however, that the Tribunal was founded on
24 the basis of Chapter VII of the United Nations Charter,
25 a chapter which grants the Security Council the power
1 to take binding decisions, binding on all member
2 nations of the United Nations, as you well know, and
3 even non-member states have to comply with the Security
4 Council's decisions.
5 Then as far as sovereignty is concerned, I
6 would simply like to ask you or, rather, tell you and
7 see how you react to it, tell you that you have
8 overlooked Article 2, paragraph 7, of the United Nations
9 Charter, a very important paragraph as it guarantees
10 the international authority of states. This is what we
11 call an exception to jurisdiction. The United Nations
12 is an international organisation. That's a fact.
13 It's not a sovereign organisation, it's not a
14 superstate, as the ICJ recognises itself and you have
15 reminded us of that particular fact in your brief, it
16 was in 1949, I think, but the United Nations has to try
17 not to go into matters which are directly relevant to a
18 state and to its national jurisdiction. The article
19 quotes in English, and I'll give it to you in English
20 because that's all I have, and I won't do that again,
21 but for once, I will speak in English in order to quote
22 the text right:
23 "... in the present Charter shall authorise
24 the United Nations to intervene in matters which are
25 essentially within the domestic jurisdiction of any
1 state or shall also require the members to submit such
2 matters to settle under the present Charter, but this
3 principle shall not prejudice the application of
4 enforcement measures under Chapter VII."
5 That means that this particular paragraph on
6 national jurisdiction is recognised by the Charter,
7 with the exception that is said very clearly in Article
8 2, paragraph 7, an article which governs the very
9 principles on which the United Nations rests, with the
10 exception of the article of Chapter VII. So the argument
11 of national sovereignty does not resist what is said in
12 Article 2(7). In 1997, we are yet again arguing about
13 Chapter VII as the SFOR who has taken action pursuant
14 to Article 2(7) through a decision of the Security Council
15 which was taken after the Dayton Agreement. Let me
16 remind you that the Dayton Agreement had to be made
17 legitimate by a decision of the Security Council.
18 May I also remind you of what Article 103 of
19 the Charter says? It's a very interesting article
20 because you have reminded us of an agreement which was
21 concluded between the United Nations and a member state
22 or an agreement that is ratified by two different
23 states. Article 103 of the Charter deals with the
24 supreme character of the Charter. It says: "... of
25 the members of the United Nations under the present
1 Charter and their obligations under the international
2 agreement, their obligations under the present Charter
3 shall prevail."
4 That's a crucial article, needless to say,
5 because what does it mean? It means that whatever the
6 agreements reached between states, there is the
7 supremacy of the Charter over any international
8 agreement concluded after the Charter has been
10 That there is an obligation to cooperate with
11 the state of Bosnia, that is quite evident for very
12 practical reasons. We must cooperate with the Bosnian
13 authorities. If we did not cooperate, how could we
14 manage, practically speaking? We have to have the
15 Bosnian authorities as our interlocutors.
16 That this be an exclusive legal obligation,
17 an exclusive obligation to cooperate, that's something
18 I'm not so sure about because we find ourselves in a
19 very specific situation, a situation covered by Chapter
20 VII. Chapter VII grants, in that particular case, the
21 authority to the Security Council to decide, to reach a
22 decision. So you cannot refer to the authority of the
23 state, to the sovereignty of a state. The sovereignty
24 becomes something that is peripheral to Chapter VII.
25 In that particular case, there is priority given to
1 Chapter VII that is stressed in Article 2(7), and the SFOR
2 took action within that particular Article 2(7) and Chapter
4 That is the elements I wanted to introduce in
5 this debate, because I don't think you've raised these
6 different issues in your brief, Mr. Smith, and I did
7 want to bring all this up to see what you had to say on
8 the matter. I don't know if you have something to say
9 on this, but, of course, I would like to hear from you
10 if you have a particular opinion on the matter.
11 MR. SMITH: I do, Your Honour, and I
12 apologise if I have failed to make myself clear. I am
13 not arguing that the Security Council could not have
14 authorised enforcement methods that overrode national
15 sovereignty under these provisions that Your Honour
16 cites. I am arguing that they have not done so and
17 that if they were to do so in the face of customary
18 international law for dealing with these matters, it
19 would have and should have been express and clear as a
20 grant of authority because of the startling reach of
21 the power that it would give the Prosecutor to conduct
22 armed searches in Russia, for example, quite
24 I might mention several other things. The
25 second sentence of Article 18, paragraph 2 that Judge
1 Robinson mentioned seems to me to be required as
2 appropriate, seek the assistance of state authorities
3 language, because without authorisation, member states
4 would have no requirement to respond to the Prosecutor,
5 in particular. They need to know that the Prosecutor
6 is authorised to request their assistance under Article
8 I would also mention that the Statute has
9 been almost uniformly interpreted by the member states
10 of the UN as involving the kind of judicial
11 assistance for armed search and seizure that we are
12 discussing here. There are 22 member states who have
13 enacted special laws on cooperation with the ICTY and
14 all regulate mutual assistance effectively in
15 accordance with the international law bilateral,
16 consensual model that Your Honour has mentioned.
17 So I think that the views of the member
18 states as well as the views that I cited earlier of the
19 Tribunal itself, the Presidents of the Tribunal, all
20 seem to be of one accord on this matter. But I hope I
21 have cleared your question up. I am not arguing that
22 the Security Council could not, if it had chosen,
23 override under Article 7 the sovereignty of countries.
24 They obviously can and do, and the current situation is
25 an example. But on this point, I am arguing that given
1 the breadth of the power being asserted here by the
2 Prosecutor, they have not, and it would be a
3 misinterpretation of their intent based on the slim
4 language of on-site investigations and collecting
5 evidence to conclude that they intended to allow armed
6 intrusions in national territory for searches and
8 I'm prepared at this point to turn to
9 executions of --
10 JUDGE BENNOUNA: (Interpretation) Excuse me,
11 Mr. Smith, but maybe we can spend another minute on
12 that particular issue.
13 Article 18(2) of the Statute, you said that
14 Judge Robinson quoted it, yes, indeed, he quoted it but
15 only to inform you of the fact that the Prosecutor can
16 ask, if necessary, the authorities of the relevant
17 state to lend a helping hand. So, yes, the Prosecutor
18 is authorised to collect evidence, and, yes, it is
19 authorised to go into the country to execute those
20 powers, but only for very practical reasons because the
21 Prosecutor has no police force at its disposal. So the
22 Prosecutor may, indeed, as appropriate seek the
23 assistance of the state authorities concerned.
24 Do you think that the Prosecutor cannot, for
25 example, ask for the assistance of the SFOR, because
1 this is what you're talking about basically. You are
2 pushing us to reach the following conclusion. The
3 Prosecutor, who is responsible pursuant to Article 18
4 to investigate and prepare the indictment has no police
5 force of its own. It has to ask for the state's
6 assistance. You are telling us that it cannot either
7 seek the assistance of an international intervention
8 force. Is that your argument, Mr. Smith?
9 MR. SMITH: No, Your Honour. Again, I fail
10 to be clear enough, and I apologise. I am arguing that
11 they could ask the assistance of SFOR to take actions
12 which are within SFOR's jurisdiction, and we cited in
13 our brief the SFOR power to support activities and to
14 provide for security.
15 SFOR does not, however, itself have the power
16 to engage in an armed search and seizure. It may well
17 have the power to arrest. It does not, it seems to me,
18 have the power of search and seizure, and neither does
19 the Prosecutor. In this case, neither of the two
20 entities involved had the power to override sovereignty
21 of the country of Bosnia.
22 There is a distinction, I think, on the
23 question of arrest in 59 bis. There is no equivalent
24 to Rule 59 bis for purposes of search and seizure, even
25 assuming that 59 bis doesn't expand improperly on the
1 statutory authorities in the area of arrest. But
2 that's not the issue in this case, nor is the refusal
3 of the one state, the Federal Republic of Yugoslavia,
4 to respect the arrest authority and extradition
5 authority of the Tribunal.
6 JUDGE ROBINSON: Mr. Smith, I wanted to go
7 back to the question of mutual assistance treaties and
8 the regime that governs those treaties. In those
9 treaties, the standard formulation is that assistance,
10 and certainly in the case of search and seizure, is to
11 be carried out in accordance with the laws of the
12 domestic state, of the state in which the search and
13 seizure is carried out.
14 Now, a state that enacts legislation to
15 implement such a treaty would, of course, be entirely
16 correct in enacting legislation that requires its
17 consent or, at any rate, requires that the search and
18 seizure be carried out in accordance with its laws.
19 I've been trying to tell you that the
20 situation here is different and for the reasons that
21 Judge Bennouna and I have been trying to explain, the
22 Chapter VII nature.
23 If, for example, you look at Article 29 on
24 cooperation and judicial assistance, Article 29 is
25 itself a derogation from customary International Law.
1 Under customary International Law, states cannot be
2 obliged to cooperate in a judicial manner, particularly
3 in relation to matters that affect them, affect their
4 sovereignty, but Article 29, as the Blaskic judgement
5 itself acknowledges, is a derogation from International
7 A state that enacts legislation, implement
8 Article 29, cannot properly enact legislation that
9 would require its consent for the implementation of
10 Article 29, as one or two states have done, and as the
11 Blaskic judgement itself, and I don't wish to name the
12 states that have done that, but the Blaskic judgement
13 itself says that that is quite improper.
14 I mean, that legislation has no effect at all
15 on the Tribunal in relation to Article 29. The fact
16 that a state has enacted legislation that requires its
17 consent for the implementation of Article 29 is totally
18 irrelevant, because Article 29 delegates from customary
19 International Law and the Blaskic judgement itself says
21 So that I think what Judge Bennouna and I
22 have been trying to explain to you is that the basis
23 for action in this regard is entirely different from
24 the basis for action in relation to the traditional
25 judicial assistance treaty which proceeds on the basis
1 of consensuality. Here it is the Chapter VII of the
2 UN Charter, which imposes a certain regime and which
3 overrides any treaty regime including even the treaty
4 that you referred us to, by virtue of Article 103.
5 I might say that when I pointed to the second
6 sentence in Article 18(2), I think perhaps you
7 interpreted it in the way that suited your ends. I was
8 really trying to illustrate that what the Prosecutor is
9 enabled to seek here is the assistance of the state and
10 not the consent. He may seek the assistance. It does
11 not say that he may seek the consent of the state. I
12 mean, far less does it say that she must seek the
13 consent of the state. It is assistance. It is
14 cooperation, which is quite different from consent.
15 MR. SMITH: Your Honour, what I'm arguing is
16 that neither Article 18, nor Article 29 exercised in
17 the Article 7 powers to require that states waive ipso
18 facto their sovereign rights to object to armed search
19 and seizure operations by the Office of the Prosecutor
20 on their territory.
21 If they had, if it were clear, if Article 18
22 had clearly granted that authority and Article 29
23 clearly reflected that the cooperation intended was
24 that they waived their sovereignty, that would be a
25 quite different case, but 22 countries have construed
1 the cooperation obligations to allow them to grant
2 consent, to withhold consent if they choose to, to
3 require their consent before search and seizure
4 operations are undertaken on their territories. That
5 seems, to me, to be powerful evidence in the face of
6 very little express language that goes to armed search
7 and seizure in Article 18, that the framework is one in
8 which that power was not exercised as to this sort of
9 activity by the Security Council and that is, in
10 effect, the argument that I've been trying to make, and
11 I apologise if -- you are far more schooled than I in
12 these issues involving bilateral treaties, but that is
13 essentially the argument that I've been trying to
15 It may be useful to quote the Blaskic case on
16 this point, which we do at page 11. It says, "It is
17 indubitable that states, being the addressees of the
18 Article 29 Statute to cooperate, have some choice or
19 leeway in identifying the persons responsible for and
20 the method of its fulfilment. It is for each such
21 state to determine the internal organs competent to
22 carry out the order."
23 It follows that if a Judge or a Chamber
24 intends to order the production of documents, the
25 seizure of evidence, the arrest of suspects, et cetera,
1 being acts involving action by a state, its organs or
2 officials, they must turn to the relevant state and the
3 relevant state, in our judgement, would react under its
4 special law on cooperation with the ICTY which
5 provides, in the case of Bosnia, as in most states, for
6 a mechanism similar, by analogy, to the normal judicial
7 assistance mechanism in bilateral treaties which I
8 understand are consensual.
9 One of the points about a consensual
10 bilateral treaty is that it can be consensual. A
11 sovereign has no -- no one has the right, absent the
12 consent of the sovereign, and, therefore, you have to
13 have a treaty for the execution of a search warrant in
14 another country.
15 JUDGE MAY: Mr. Smith, I recognise you
16 haven't had the last hour and a half to yourself but,
17 nonetheless, perhaps we can move on and try and
18 complete your argument before the break.
19 MR. SMITH: Let me do so quickly, Your
21 The second basic argument in the case is the
22 method of execution, and here we're dealing with the
23 factual declarations by the Prosecutor and our
24 affidavits. I would note, in dealing with that factual
25 material first, that the three affidavits we have
1 submitted are first-party material, that is to say, the
2 person involved was present at the time in giving the
3 material that he's describing.
4 The Prosecution's declarations, two of them
5 are not first party. Ms. Pantz was not at the
6 locations of the inspection. She may have been in
7 Sarajevo, but she was not at the locations of the
8 inspection and she is reporting opinions, and legal
9 conclusions, various other things that have been told
10 to her. Dornan apparently, as near as we can
11 determine, is the same thing.
12 It is interesting that the person who was
13 present at the inspection of the Zigonjic premises has
14 not provided an affidavit. I would have normally
15 thought there would be a first-party affidavit by that
16 person that was present, but we note that it was not
18 Issues we raise here, we have not raised the
19 issue of probable cause, Your Honour, because as we
20 indicated in our briefs at page 7 note 10, we cannot,
21 not having been party to the issuance of the warrant,
22 and indeed once we became aware that a search had taken
23 place, we inquired of the defence council office
24 whether we could obtain a copy of the search warrant
25 and the materials leading up to it, and we were
1 informed, after they had made inquiries, that those
2 materials were not available to us. So we have not
3 argued that because we could not.
4 Secondly, a search warrant generally must
5 have a concrete nexus among the places searched, the
6 objects searched, and the alleged offences. This is a
7 remarkably broad order with a number of people listed
8 in the back of it, some of whom are currently in
9 office, at least one of whom, I believe, is in office,
10 and no real indication of the link between the people
11 for whom information is sought and the particular
12 crimes because there aren't any crimes actually stated
13 on the face of the warrant.
14 The Antunovic declaration shows that the
15 Prosecutor is represented. He has seized virtually
16 everything. In effect, a random search, and they
17 simply took large volumes of material, some 44 boxes --
18 I think 45 boxes, perhaps, of material including hard
19 disks and computer floppies that can contain a very
20 large body of material in a very small space.
21 As to the things seized, we note that weapons
22 were seized and confiscated. They were not covered in
23 the search warrant. We could understand their
24 sequestration during the search, but it is not at all
25 clear to us the legality of their confiscation and
1 their retention the search was over. This was, of
2 course, a defence office, and it was quite natural that
3 one might find weapons at such a location.
4 The inventory that was left was, in our
5 judgement, too general. It was not in a language that
6 could be understood by the person who had to sign it.
7 There is some slight deviation in the accounts between
8 our affidavits and the Prosecutor's declaration, but I
9 remind Your Honours that ours is first party and except
10 for the Antunovic search theirs is not on that point.
11 We suggest without a detailed inventory, and
12 none has been produce almost eight months later, this
13 is a significant issue about the chain of custody and
14 the validity of materials, and the owner can't tell
15 what it was that has been taken in a case involving
16 social security and welfare benefits for individuals.
17 Finally, the materials, eight months on, have
18 never been returned, nor has a copy been made even to
19 return to those offices so they can proceed in their
20 normal course of business. I suggest that this
21 violates principles of International Law requiring the
22 return of such materials when they are seized found in,
23 for example, Article 6 of the European Convention on
24 Human Rights, and there are similar provisions in the
25 UN model convention on mutual assistance and the
1 Commonwealth mutual assistance scheme.
2 We believe that this was, in these regards,
3 an improperly executed search and an illegally executed
4 search, and that these materials should be, under
5 Rule 95, excluded either on the grounds that they
6 cast -- that the method of their acquisition,
7 particularly given the broad inventory, the very
8 general inventory, casts substantial doubt on the
9 reliability of the evidence or, alternatively, that the
10 method of the execution of the warrant and, in our
11 judgement, the lack of the power to exercise an armed
12 search and seizure operation without going through the
13 requirements of Bosnian law is antithetical too or
14 seriously damages the integrity of the proceedings were
15 the Tribunal to allow this sort of evidence to be used
16 by the Prosecutor.
17 If the Tribunal is to control the exercise of
18 investagatory powers by the Prosecutor so that they are
19 lawful, we submit that the exclusion of evidence,
20 generally the rule in most jurisdictions, is the
21 effective tool for doing so.
22 With, that Your Honour, I will conclude.
23 Thank you.
24 JUDGE MAY: We'll take the usual break,
25 quarter of an hour.
1 --- Recess taken at 4.30 p.m.
2 --- On resuming at 4.50 p.m.
3 JUDGE MAY: Yes.
4 MR. NICE: I don't believe Mr. Kovacic wants
5 to add anything. I'm not sure. Apparently not.
6 I can deal with the points raised shortly.
7 The potential for these powers contended for by the
8 Prosecution to have been granted is conceded. We say
9 they have been granted explicitly. The lack of
10 complaint by the state in relation to this warrant, as,
11 indeed, in relation to earlier warrants executed on its
12 territory is not insignificant. It shows a recognition
13 by the state of the legality of what's done, they
14 neither seeking to arrest removal of materials by any
15 domestic intervention, nor complaining, as they are
16 entitled to, to this Tribunal under, I think, Rule
18 Dealing with a few of the points Mr. Smith
19 raised and in the sequence in which he dealt with them,
20 for the most part, non-cooperation has been dealt with
21 just not in Ms. Pantz's affidavit but also extensively
22 in the Prosecutor's brief at pages 9 and 10, where in
23 the footnotes, there is reference to the annual reports
24 to the Security Council which sets out extensively the
25 history of non-cooperation.
1 Mr. Smith relies today heavily, and I think
2 more heavily than in the original motion, on the notion
3 that this was an armed search. That is not the case,
4 as is known, I'm sure, to the Court from its reading of
5 the papers in this application. This was a search
6 authorised by the warrant of the Court that SFOR
7 attend, as they are obliged to do, to ensure the
8 security of people whose presence on the territory they
9 are aware of. It was their judgement and theirs alone
10 what level of security was required. They took no part
11 in the search.
12 The example of the same powers being capable
13 of exercise in France or the United States of America
14 is worth perhaps the following four points: At the
15 beginning, of course, when these powers were granted,
16 the territory was in a state of war, and what's being
17 contended for now might have been wholly inappropriate
18 and would be completely different from what would apply
19 in relation to a friendly and peaceful state.
20 In any event, it may be, and it doesn't fall
21 for determination today, but it may be that there is
22 some limitation in the powers to affect search warrants
23 in the phrase or words "on-site" in Article 18(2). But
24 to deal, and it may be conclusively, with the problem,
25 if there is any problem, in the example raised of
1 France or the United States of America, the Prosecutor
2 has in respect of search warrants always sought, as she
3 can, an order of the Tribunal, and it may be that any
4 application to exercise powers of search in respect of
5 a country with which cooperation could be fully
6 expected would be refused.
7 Can I deal with the memorandum that was
8 distributed? It, of course, in many ways is not in
9 point at all. It is a memorandum about something
10 entirely different and sets out quite a specific
11 regime. But on page 10, paragraph 7, the Chamber may
12 find something of interest where it says as follows,
13 page 10, paragraph 7: "Investigators may take
14 possession of documents and other pieces of physical
15 evidence provided to them by witnesses during
16 interviews, this is within the setting of the regime of
17 interviews dealt with by this memorandum, but shall not
18 exercise without a warrant or other order of a judge of
19 the International Tribunal seek to exercise any powers
20 of search or seizure," which all seem to acknowledge
21 there and then the ability for such warrants to
22 exercise such powers being granted.
23 I turn from the memorandum just to make a
24 couple of points about the Bosnian law referred to at
25 page 17 of the defendant's motion, and it's their
1 paragraph 32. As one of their witnesses first reveals
2 and which has been possible for me to discover but only
3 very recently, the citation is not as precise as the
4 Chamber might have hoped for. In paragraph 32, there
5 is reference to the Bosnian law on cooperation with the
6 ICTY, and footnote 33 identifies the Statute of 1996.
7 That Statute is apparently and exclusively a statute on
8 the laws of extradition. It is not a statute headed
9 and titled, as I am informed but I'm afraid only now
10 informed today, on cooperation.
11 When it goes on to say that Article 27
12 requires any final order to collect evidence should be
13 executed by the Ministry of Justice and administration
14 and so on, the position is that Article 27 refers to
15 the regime appropriate to the return of somebody being
16 extradited and Article 28 makes a reference to the
17 production or collection of property and says that the
18 regime for that material must be the same as Article
20 Finally, when it is said that Article 6 of
21 the law of cooperation explicitly designates the code
22 of procedure as the law that regulates the judicial
23 assistance procedures, my understanding is that the
24 code of criminal procedure is invoked as a residuary
25 code to be applied where things are not otherwise
1 specified but this all in a statute that deals with
2 extradition. So that whatever value it is that may be
3 diminished by its precise terms, in any event, as I
4 think has been made plain, unilateral laws are not to
5 the point if, as we contend, quite explicit powers of
6 the type required have been given to this Office of the
7 Prosecutor by the Statute.
8 I think that we've set out at our page 7 a
9 relevant quotation from the Blaskic decision which sets
10 out how on-site activity may require to be done
11 unilaterally and without notice, and that fits entirely
12 with the reasoning that lies behind the powers that we
13 say are granted.
14 So far as Article 18 and Article 29 are
15 concerned, we say that this matter is governed by
16 Article 18. I needn't repeat the section and further
17 identify the distinction between the first and second
18 sentence. Article 29 deals with cooperation. This was
19 not a question of seeking and obtaining acts by
20 cooperation. It's true that notice was given
21 simultaneously with execution of the warrants, and so
22 it could be said that at that stage and from that
23 moment, cooperation was required and was granted, but
24 we rely on the quite clear and precise terms of Article
1 I turn briefly to deal with the matters of
2 fact. I've explained to Mr. Smith, and I'm sure he
3 accepts, the only reason why the affidavits produced do
4 not include an affidavit from the investigator who
5 dealt with the particular site and who read the correct
6 but left the wrong warrant is because he's the
7 investigator who sadly died earlier this year, having
8 contacted, I think, a tropical disease in the course of
9 the winter. That's the only reason that you don't have
10 the first-hand affidavit.
11 This warrant and its breadth reflect the fact
12 that it was not, of course, solely restricted to an
13 investigation into these two defendants. This was
14 wider than that. So far as weapons seized were
15 concerned, that was entirely a matter for SFOR. It had
16 nothing to do with the search warrant, and as I
17 understand it, SFOR, in different locations, may have
18 made different judgements in relation to weapons that
19 they discovered were found. But it was a matter for
20 them and had nothing to do with the search warrant.
21 The material sought was wide and, of course,
22 its breadth was approved by the Court when the warrant
23 was granted, and there's no challenge to the
24 appropriateness of the Court making the decision it did
25 on the material available to it.
1 The inventory preparation was necessarily an
2 extensive exercise. Statistics revealing how extensive
3 are, I think, contained on the last page of Ms. Pantz's
4 affidavit. The Defence were provided on the 1st of
5 April with an extract from the full inventory still
6 then in the process of preparation, and the extract of
7 some 88 pages related to documents identified as
8 particularly appropriate or potentially appropriate to
9 the defendants. The process of completing the
10 inventories continued, and the full inventories were
11 sent out not to the defendants but to the custodians on
12 the 14th of May of this year. Some have, as I
13 understand it, and some have not yet reached the final
14 custodians, it being an administrative matter to make
15 sure they find the right office or person.
16 In summary, we say, as we said in the motion
17 and have nothing much further to add, nothing further
18 to add, the powers were explicitly envisaged and
19 given. This warrant was correctly granted. Its
20 execution, as revealed by the material, the evidential
21 material before you, was entirely proper, and there is
22 no grounds here whatsoever for excluding admission of
23 any of this evidence on the grounds that it was
24 obtained pursuant to the search warrant.
25 I can simply add that material from the
1 search warrants has already been admitted in other
2 cases. Before entering premises, it would not be
3 possible to know the quantity of potentially useful
4 material that might be revealed, but it was possible to
5 forecast and SFOR so forecast, as it were, that there
6 would only be the potential for one day's work. So
7 everything had to be accommodated within one day. Any
8 overnight pause was unacceptable -- sorry, overnight
9 continuation was not possible, so far as SFOR was
10 concerned, and a pause overnight would render the
11 following day's exercise potentially valueless. It all
12 had to be dealt with in one day. That explains the
13 hierarchy of inventories that had to be prepared. It
14 simply wouldn't be possible to prepare a detailed
15 inventory of the amount of material that was, in the
16 event, found to be of potential value, given the
17 resources and the time available.
18 Of course, surprise was necessary, though I
19 don't think it's dealt with specifically in the
20 evidence. One can give examples within these very
21 searches, not necessarily this particular one that
22 concerns Mr. Smith, but searches on the same day are
23 the sort of events that can happen at computers if
24 there is any advance notice given that a search is
25 going to take place.
1 I return briefly to the legal argument that
2 has been advanced in relation to the granting of an
3 exercise of warrants generally. If the Defence
4 argument is right, then even assuming ground forces
5 enter Kosovo while it remains part of Serbia, it would
6 not be lawful for any force of the Office of the
7 Prosecutor following the armed forces to search
8 premises for documents, because they would still have
9 to operate through the state. With great respect, that
10 simply isn't right.
11 These powers were granted to deal with a
12 particular known situation. They have been properly
13 exercised, and, in our respectful submission, the
14 evidence should be admitted.
15 JUDGE MAY: Thank you. Mr. Smith?
16 MR. SMITH: I will be quite brief, Your
18 First, the citation of the statement by
19 Louise Arbour which is comparing her powers to those
20 that the Nuremberg Tribunal had: "They ruled over the
21 territory. I can only imagine how quickly we would
22 finish in the former Yugoslavia if we could enter any
23 ministry and take documents that we need." That is on
24 page 4, footnote 2 of our motion for advance notice.
25 That's the first matter.
1 Secondly --
2 JUDGE MAY: Sorry. Let me find that. Where
3 is this?
4 MR. SMITH: Page 4, footnote 2 of the second
5 set of briefs relating to this matter, that is,
6 relating to the motion for advance notice of the
7 Prosecutor's intent to offer evidence, dated 8 March,
9 JUDGE MAY: Well, that's presumably a purely
10 factual comment, comparing the position at Nuremberg
11 with the position here. It's not any comment about the
12 powers or legality.
13 MR. SMITH: I had read it and taken it as
14 having an implicit predicate which was that she could
15 not enter any Ministry and take any documents, and if
16 she could she would. I may be incorrect on that
17 matter, Your Honours. That's for you to decide.
18 JUDGE MAY: It's a pure matter of fact, it's
19 not a matter of law.
20 MR. SMITH: Your Honours, on the question of
21 lack of complaint, I've addressed that already. That's
22 not at issue. It's lack of consent that is at
23 question. But on that point and the question of
24 whether this was an armed search, I think that the
25 affidavits we have submitted leave no doubt. SFOR was
1 present for security purposes, but the search warrant,
2 in paragraph 8, expressly authorised the use of force
3 and that was handed to the persons at the search site.
4 In the paragraphs of the affidavits, Mr. Zigonjic,
5 Mr. Antunovic both indicate that the presence of the
6 armed troops made them afraid to resist. It was
7 clearly under threat of force and that when they
8 checked up the line of authority, they were told that
9 they had no choice but not to oppose the search.
10 I can, if you like, take the time to point
11 out the particular paragraphs, otherwise, I will simply
12 leave Your Honours to see the testimony by the persons
13 against whom the threat of force in the search and
14 seizure was applied. Indeed, the Minister -- Your
15 Honours indicated earlier that he was now the
16 Minister. He is not. He is the former Minister of
18 In paragraph 6 of his affidavit, he says, "I
19 contacted the Ministry of Defence to see what course to
20 take. They said that they had also been visited by the
21 representatives of the Prosecutor and were given
22 warrants. They were also surprised by such act because
23 the SFOR was armed and had deployed armoured vehicles.
24 We," the Minister of Justice and the Minister of
25 Defence, in other words, "decided not to react in order
1 to avoid shooting. On top of that, there was no point
2 in our resisting the execution of the search as it had
3 already been commenced."
4 Indeed, the seizure of the weapons indicates
5 that SFOR disarmed the persons being searched. I think
6 it is not possible to call this anything but an armed
7 search and seizure. If the U.S. Prosecutor went into a
8 location with the aid of police that, it seems to me,
9 under threat of force, is, in effect, exactly what has
10 happened here.
11 On the question whether this power could be
12 or would be asserted against the U.S., or Russia, or
13 France, or any other major power, I think the
14 suggestion was made that the U.S. Would simply refuse
15 but that is not the issue here. The power asserted,
16 they would have no opportunity to refuse. What is
17 asserted is the unilateral power without advance notice
18 or consultation by armed force to seize evidence
19 anywhere in the United States, the United Kingdom,
20 France, or Russia, and I suggest to Your Honours that
21 those countries would be startled, as would China, for
22 example, to find that power asserted by the Prosecutor
23 even subject to a search warrant.
24 A search warrant was issued here. It is the
25 execution of the search warrant without the consent of
1 the sovereign nation which is at fault, not the search
2 warrant itself. The search warrant perfectly was, in
3 that regard in terms of power, properly issued. I'm
4 the not conceding probable cause or any of the
5 specifics, but the point is it is the execution
6 unilaterally in a sovereign country that we believe is
7 clearly not authorised by the Statute.
8 On the memorandum of understanding, the
9 Prosecutor has cited the provision dealing with
10 evidence, as he properly indicates, supplied by a
11 witness during an interview. First of all, that is not
12 what has evolved here. This is in a section of the
13 memorandum of understanding that deals with witnesses.
14 That is not the situation.
15 In any case, that language notes that even
16 with a warrant, the Prosecutor must seek to exercise,
17 he must go and request consent under the laws relating
18 to cooperation with the Tribunal. Seek to exercise.
19 Furthermore, in that same section dealing
20 with witnesses, in paragraph 5 it provides that
21 investigators will not be armed. This is just a
22 provision which is not applicable in this situation.
23 On the question of the Blaskic opinion, we
24 have read to Your Honours the language dealing with
25 search and seizure. That is the relevant language, not
1 language dealing with on-site activity, as the
2 Prosecutor terms it.
3 As to the statistics in the declaration by
4 Ms. Pantz, the statistics are 45 boxes, formats with
5 large acetate coverings, as I recall.
6 On the question of question of the
7 inventories and the return of the materials, I suggest
8 to Your Honours that whatever may be the difficulties
9 in providing a detailed inventory, which has now
10 apparently been provided eight months on, there simply
11 is no excuse for not copying 45 boxes of materials and
12 returning the originals to the office so that the
13 persons whose social security benefits and other
14 benefits could be provided by the office and its
15 activities are not brought to a halt.
16 If you will look at the affidavits by
17 Zigonjic and Antunovic, you will see that they both say
18 that having the material taken away from them, and even
19 now, even with the inventory provided, no copy
20 apparently, no original back to the working office in
21 charge of social security benefits for individuals just
22 seems to us to be unlikely to be well-received by the
23 persons in the country in question. Finally on the
24 question --
25 JUDGE MAY: Could you slow down a bit,
2 MR. SMITH: Yes. On the question of the
3 powers in Kosovo, I am by no means an expert on the
4 laws of conflict, but I suggest to Your Honours that if
5 NATO occupies Kosovo, the power to -- and does so under
6 Article 7, enforcement powers, that it becomes, in the
7 effect, in some sense an occupying power, and if the
8 Prosecutor looked carefully at the law, he would find
9 that he did not require the consent of the Yugoslav
10 government or the Serbian government, particularly when
11 it is that government which has, in the context of Rule
12 59 bis, clearly enacted legislation to prohibit
13 exercise of powers by this Tribunal. That is not the
14 case in the situation that we're dealing with or would
15 be the case in any other country -- virtually any other
16 country, particularly the 22 that have enacted these
17 statutes, laws, dealing with cooperation with the
19 Because I can't read the Croatian, I request
20 Your Honours leave to have my colleague, Ms. Turkovic,
21 dealing with the provisions in the 1996 law and the
22 code of procedure that the Prosecutor was citing. If
23 she could be allowed to do that very briefly.
24 MS. TURKOVIC: Your Honours, I will be very
1 JUDGE MAY: One moment for the
3 MS. TURKOVIC: Yes.
4 JUDGE MAY: Yes.
5 MS. TURKOVIC: Yes. It is true, as the
6 Prosecutor has asserted, that the title of the law is,
7 and I will read in Croatian so that the interpreter can
8 interpret, not myself in English, (As read)
9 (Interpretation) "Decree on the proclamation of the law
10 on extraditing criminals accused, at the demand of the
11 International Tribunal."
12 (In English) However, the title in section 3
13 is: (Interpretation) "Extraditing individuals and
14 objects, handing over."
15 (In English) And I will read Article 27: (As
16 read) (Interpretation) "A decision to hand over, based
17 on the law, be executed by the Ministry of Justice of
18 Bosnia-Herzegovina in cooperation with the Ministry for
19 Internal Affairs of the Federation of
20 Bosnia-Herzegovina and the Ministry of Foreign Affairs
21 according to the rule regulating the handing over of
22 individuals and objects which together be brought by
23 the competent Ministers.
24 "These rules and regulations shall be enacted
25 within 15 days from the day that they come into being,
1 become effective, from the day this law becomes
3 Article 28.1 states that: (As read) "Objects
4 for which or with the help of which a criminal act has
5 been committed or objects which can serve as evidence
6 and are requested by the International Tribunal shall
7 be handed over to the International Tribunal in keeping
8 with the rules from Article 27 of this law."
9 (In English) I have to point out that these
10 rules have never been enacted. Maybe you know it's
11 really difficult in Bosnia today to actually obtain the
12 consent and to enact quite a number of the laws,
13 especially those that are sensitive and related to the
15 As related to the Criminal Code, I will just
16 read the title of the section which is: (As read)
17 (Interpretation) "Proceedings for Giving International
18 Legal Assistance."
19 (In English) So it's not extradition, it's
20 legal assistance, and Article 518, which says: (As
21 read) (Interpretation) "Requests by domestic courts for
22 legal assistance in criminal proceedings shall be
23 sent follows."
24 (In English) Throughout the whole Article and
25 Article 519 they talk about (Interpretation)
1 "International legal assistance."
2 We can provide the Articles if you want.
3 MR. SMITH: To conclude, Your Honour, this
4 is, as I believe Your Honours appreciate, a matter of
5 grave consequence to powers asserted by the Prosecutor
6 in this situation, and that is why the Defence has
7 raised the matter. I think I indicated at a proceeding
8 some time ago the seriousness with which the Defence
9 viewed the nature of the search and seizure operation
10 and the way it was conducted. We submit that these
11 powers, as exercised by the Prosecutor, are not granted
12 by the Statute, are not covered by the Rules, are,
13 therefore, unlawful and were improperly executed.
14 Thank you.
15 JUDGE MAY: Why would one -- one final point,
16 Mr. Smith. Even if you were right about your
17 submissions, you would also have to show that the
18 admission would cast doubt on the reliability of the
19 evidence, and that is documentary evidence, remember,
20 or to admit it would be antithetical to and would
21 seriously damage the integrity of the proceedings.
22 Now, the proceedings must mean the trial.
23 MR. SMITH: Yes, Your Honour.
24 JUDGE MAY: Now, why would it seriously
25 damage the integrity of the trial if we admitted this
1 evidence, even if we accepted your earlier argument?
2 MR. SMITH: Your Honour, for a very
3 fundamental reason, and that is that if the behaviour
4 is lawless, if it is beyond the legal power of the
5 Prosecutor, this Tribunal cannot, in our judgement, and
6 should not be party to the use of that evidence. It is
7 morally incongruous for the Tribunal both to argue that
8 criminals tried before it should have obeyed the law
9 but that the Prosecutor need not. Point number one.
10 Point number two, respect for the rule of
11 law, in our judgement, demands that the evidence be
13 Third, the fairness of the system is
14 fundamentally dependent on lawful behaviour by the
15 Prosecutor. The legitimacy of the verdict is of very
16 great importance, and a verdict based on evidence
17 admitted which was unlawfully seized, seized outside
18 the power of the Prosecutor, would, it seems to me, be
19 seen in many quarters as an illegitimate verdict.
20 Finally and most fundamentally, the ends
21 simply do not and cannot justify the means. This court
22 needs power to operate effectively. I have no doubt of
23 that, but it's our submission that it cannot be seen,
24 particularly at this embryonic stage in its development
25 and at a time at which it is taking indictments of
1 major international significance and attracting
2 attention to itself, it simply seems to us that it
3 must, it must provide for the exclusion of illegally
4 seized evidence and call the shots as they may fall.
5 (Trial Chamber confers)
6 JUDGE ROBINSON: Mr. Nice, I really wanted to
7 ask you how you respond to Mr. Smith's contention that
8 in a matter of this kind one would expect to find an
9 explicit provision in either the Statute or the Rules
10 providing for search and seizure. He says there is no
11 such explicit provision.
12 MR. NICE: We answer that quite simply by
13 saying this is both explicit provision and the explicit
14 delegated but effectively delegated power for the
15 Judges to make further provision. 18(2) is wide enough
16 and does cover exactly what happened. I repeat -- I
17 don't repeat, because I never set it out. Taking it as
18 read: "To collect evidence and to conduct on-site
20 The court will also have in mind
21 Article 19(2) that: "Upon confirmation of an
22 indictment the Judge may, at the request of the
23 Prosecutor, issue such orders and warrants for the
24 arrest, detention, and surrender," and so on, as may be
25 required for the conduct of the trial.
1 Whether or not that further amplifies the
2 position, Article 18(2), in our respectful submission,
3 is quite explicit. Article 54 may also be worth
4 consideration. Rule 54, I beg your pardon. Rule 54
5 again we've referred to. It's quite broad, and
6 intentionally so: "At the request of either party or of
7 its own motion the Judge may issue orders, summonses,
8 subpoenas, warrants, and transfer orders as may be
9 necessary for the purposes of an investigation or the
10 preparation or conduct of the trial."
11 There can be no doubt, in the setting of this
12 history and this Tribunal, that these powers are
13 necessary. They're not optional. They are absolutely
15 The Chamber must be under no illusions in
16 light of its comparatively recent encounters in this
17 case with the need for documentary material, the
18 difficulties of obtaining it, whether by cooperation or
19 otherwise, and thus its dependence on the search
20 warrant provision, a provision that has been executed
21 already, as I say, unchallenged on several occasions.
22 But my answer remains that it is allowed for. It may
23 not be spelt out in the words "search warrant," but it
24 is allowed for by specific provision.
25 JUDGE ROBINSON: Thank you.
1 JUDGE MAY: Two minutes.
2 MR. SMITH: Less than that, Your Honour.
3 Rule 54 authorises a Judge or a Trial Chamber to issue
4 an order, and that is not a question here. There was a
5 search warrant issued. The problem is that it was
6 improperly executed in a way that the Prosecutor had no
7 power to do, a unilateral execution without going
8 through the provisions of the law of the state which is
9 sovereign and on whose territory it was executed, and
10 that is not required by the search warrant itself.
11 There is nothing in the four squares of the search
12 warrant that authorises that or that purported to
13 authorise it. The Trial Chamber and the Judge issuing
14 it did not face that issue when he issued it. It was
15 the steps taken by the Prosecutor subsequently. Rule
16 54 is of no assistance on that point.
17 JUDGE BENNOUNA: (Interpretation) Mr. Nice,
18 part of what Mr. Smith has said you have not answered
19 to, the part dealing with the possibility of returning
20 some of the documents which were seized by you within
21 the framework of that warrant, search warrant. Can you
22 answer that part of his argument, that possibility of
23 returning some of the documents which were seized?
24 MR. NICE: Two answers. First of all, I
25 doubt with whether, as a matter of principle, what
1 happens after a lawfully executed search warrant is
2 executed can render the execution itself unlawful, and
3 the remedy of an offended party would be either
4 directly to the Chamber for relief, or if the party
5 were a defendant at trial, an argument objecting to the
6 admissibility of the evidence.
7 In this case, we know not only that there has
8 been no official complaint from the government about
9 the execution of the search warrant, but save for the
10 statement in an unofficial capacity of a former office
11 holder, no complaint of any kind. So that as a matter
12 of law or mixed law and fact as it affects your
13 decision on this application, I would respectfully say
14 it has no effect.
15 Second part of the answer, a practical one,
16 the decision about preparing inventories and returning
17 material is not one directly within the power of the
18 lawyers in the Office of the Prosecutor. As I have
19 already explained, this material was sought not just
20 for this trial and, therefore, the decision as to when
21 it should be returned falls to those who have a wider
22 brief than the lawyers in just this trial.
23 Having said that, no doubt, now that the full
24 process of preparing inventories has been completed,
25 decisions about return of material can and presumably
1 will be made, but it seems to me that that is a
2 practical matter as opposed to one that really affects
3 your decision here today or whenever.
4 MR. SMITH: I would simply refer Your Honours
5 to Article 7 of the UN model treaty on mutual
6 assistance in criminal matters, which deals with return
7 of material to the requested state and states: "Any
8 property, as well as original records or documents
9 handed over to the requesting state under the present
10 treaty, shall be returned to the requested state as
11 soon as possible unless the latter waives its right of
12 return thereof." I suggest to you that that is the
13 accepted international practice, and it's no answer to
14 say that it has not been complied with and there is no
16 JUDGE MAY: The Trial Chamber will take these
17 matters under consideration. We will announce a
18 decision in due course. We will adjourn now until
19 tomorrow, half past two.
20 --- Whereupon the hearing adjourned
21 at 5.35 p.m., to be reconvened on
22 Tuesday, the 1st day of June, 1999
23 at 2:30 p.m.