Tribunal Criminal Tribunal for the Former Yugoslavia

Page 90

1 Tuesday, 4 October 2004

2 [Motion Hearing]

3 [The accused not present in Court]

4 [Open session]

5 --- Upon commencing at 3:04 p.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-05-87-PT, the Prosecutor versus Milan Milutinovic, Nikola Sainovic,

9 Dragoljub Ojdanic, Nebojsa Pavkovic, Vladimir Lazarevic, Vlastimir

10 Djordjevic, and Sreten Lukic.

11 JUDGE ROBINSON: And may we have the appearances.

12 MR. HANNIS: Your Honour, I'm Tom Hannis, on behalf of the Office

13 of the Prosecutor. I'm here today as an interested observer.

14 JUDGE ROBINSON: Thank you. And for Canada?

15 MS. SWORDS: Mr. President, Colleen Swords. I appear on behalf of

16 the Government of Canada, and I'm assisted today by Janet Henchey from my

17 Department of Justice, John Currie from the Department of Foreign Affairs,

18 and Masud Husain from our embassy here in The Hague.

19 JUDGE ROBINSON: Thank you. For the United Kingdom.

20 MR. RAAB: Your Honours, my name is --

21 JUDGE ROBINSON: Microphone.

22 MR. RAAB: My name is Dominic Raab. I'm the legal advisor for the

23 British embassy here in The Hague, and I'll be making the oral submissions

24 on behalf of the Government of the United Kingdom.

25 JUDGE ROBINSON: Thank you, Mr. Raab, and nothing is to be read in

Page 91

1 the fact that you're all sitting where the accused usually sit.

2 For the United States.

3 MR. JOHNSON: Your Honours, I'm Clifton Johnson and I'm here for

4 the United States and I'll assisted by Heather Schildge and Omar Nazif.

5 JUDGE ROBINSON: Thank you. And for the accused.

6 MR. VISNJIC: Your Honours, Tomislav Visnjic and Peter Robinson on

7 behalf of the General Ojdanic.

8 JUDGE ROBINSON: Thank you. Well, as you all know, this is the

9 second application by the accused Ojdanic pursuant to Rule 54 bis, and

10 I'll ask his representatives to make their opening statement.

11 Mr. Robinson.

12 MR. ROBINSON: Yes. Thank you. Good afternoon, Mr. President,

13 members of the Trial Chamber. First of all, again I want to thank the

14 States for their participation in these proceedings. I think we've been

15 successful in narrowing our request, just judging by the number of States

16 that are now parties to these proceedings, so I think we could say that

17 we're fishing in a smaller pond today.

18 I want to advise the Trial Chamber of what we did since your

19 decision of 23 March 2005. We studied your decision in detail. We

20 essentially extracted every sentence from that decision and concurring

21 opinion which addressed deficiencies in our earlier request, diagrammed

22 those sentences like I was taught in grammar school, and we sat down with

23 General Ojdanic and attempted to comply in full with every single word of

24 the decision and concurring opinion.

25 Our reformulated request, first dealing with intercepted

Page 92

1 conversations of General Ojdanic in paragraph A and intercepted

2 conversations mentioning General Ojdanic in paragraph B, we saw that the

3 decision suggested that we stipulate as far as possible the place and the

4 dates of the intercepted conversation, and so we did that.

5 First with the place: General Ojdanic did spend a few days

6 outside of Belgrade, but by and large for the entire period he was in

7 Belgrade and so we were able to limit our request to conversations

8 occurring while he was in Belgrade.

9 With respect to the dates: Although General Ojdanic can recall

10 some dates of some conversations of -- about Kosovo which are well

11 documented, such as those with General Wesley Clark, his conversations

12 with President Milosevic and with his subordinates during this period were

13 on essentially a daily basis, and during the bombing of NATO, there was a

14 frenzy of activity with many conversations, and so in speaking with him I

15 found it was impossible to limit the request any narrower than the

16 five-month period set forth in our original request, which is a period in

17 which he had almost daily contact regarding Kosovo. So we were unable to

18 narrow the request as to date, but we were able to make another narrowing,

19 and that is as to participants.

20 We came up with the alternative of narrowing the request by

21 listing the other participant to the conversation. In discussing with

22 General Ojdanic, I found that his conversations about Kosovo were by and

23 large limited to a group of subordinates, and so we were able to list

24 those people in Annex A and make our request more specific by limiting the

25 intercepted conversations to those with 23 identified persons.

Page 93

1 Request B presented a different problem because it involves

2 conversations in which General Ojdanic was not a party, and so we decided

3 to limit our request to those conversations in which at least one party to

4 the conversation held a position in the government, the armed forces, or

5 the police in the Federal Republic of Yugoslavia or Serbia. By doing

6 this, we thought that these people were more likely to have relevant,

7 useful information about General Ojdanic's activities and state of mind

8 relating to Kosovo and that we could reduce the burden on the States.

9 Now, both the decision and separate opinion noted that we needed

10 to specify the particular matters in issue in the case to which the

11 documents sought were relevant and how they were relevant, so we did that.

12 For intercepted conversations, we identified four central issues

13 in the case: General Ojdanic's knowledge or participation or lack thereof

14 in the intended or actual deportation of Albanians from Kosovo; his

15 knowledge or participation in the intended or actual killing of civilians

16 in Kosovo; whether the formal chain of command on matters pertaining to

17 Kosovo was respected; and his efforts to prevent and punish war crimes in

18 Kosovo. And so if a conversation falls within any of these four

19 categories, it should be produced. I think this goes to the very core of

20 the issues that will be at the trial of this case. We're not trying to

21 write the history of the Balkans.

22 We set forth how the documents were relevant to these issues. For

23 example, that General Ojdanic contends he had no knowledge of any plan to

24 expel Albanians nor did he participate in assisting or carrying out such a

25 plan, and these intercepted conversations will go directly to that issue

Page 94

1 or else they won't have to be produced. And the same with the killings.

2 And with respect to the chain of command, we noted that the Prosecution's

3 own evidence in the Milosevic trial has indicated that the formal chain of

4 command, which included General Ojdanic, may not have been respected in

5 matters pertaining to Kosovo, and so these intercepted conversations will

6 assist us in determining whether or not General Ojdanic had knowledge of

7 or was a participant in any plan to expel Albanians from Kosovo.

8 And likewise, with respect to failing to prevent and punish

9 crimes, General Ojdanic contends that did he take steps to prevent and

10 punish crimes in Kosovo, and we hope that the intercepted conversations

11 would be -- provide us evidence which could assist us in proving that

12 during the trial.

13 So we feel that we did everything we could to fully comply with

14 the decision and separate opinion with regard to the specificity and

15 relevance and necessity of the intercepted conversations. And perhaps

16 even we narrowed it too much because now States like the United Kingdom

17 and Germany and France and Netherlands, which presumably had responsive

18 information to our wider request say that they have nothing to give to us

19 now that our request is this narrow.

20 We also note that no state now contents that they have been unable

21 to conduct a search of their records because of lack of specificity, and

22 in fact Canada and the United States have acknowledged that they have been

23 able to identify material responsive to these requests.

24 The Trial Chamber in its decision quoted the Kordic Appeals

25 Chamber decision that the underlying purpose of the requirement of

Page 95

1 specificity is to allow a State to be able to identify the requested

2 documents. We believe that that purpose has been accomplished by our

3 reformulated request.

4 With respect to request C, the Trial Chamber was very critical of

5 our request for records of statements by General Ojdanic to

6 representatives of the States, including sources of information working on

7 their behalf. The majority said that it was vague and obscure, and Judge

8 Bonomy said it lacked basic clarity, so we decided to scrap our catch-all

9 approach with respect to request number C and just ask for specific

10 documents that we now know in 2005 are in existence and we have not been

11 able to obtain from the Prosecution or in our own investigation. When we

12 made the initial request back in 2002 we contemplated making subsequent

13 requests once we'd had a chance to see the disclosure in the case and do

14 our own investigation, but we decided now we would just simply include

15 those things that we have now learned are relevant and that we need, and

16 so there will be no subsequent requests, barring unforeseen developments,

17 and we've included the three items that we are requesting under item C,

18 and they're three very specific items.

19 First, the information relating to General Ojdanic's speech to the

20 foreign military attaches in Belgrade in July or August 1998. And we

21 provided the relevance of that by citing to the testimony of John

22 Crosland, the British attache in the Milosevic case, in which he gives an

23 account of what General Ojdanic said, and we have explained in our

24 application that General Ojdanic believes that Colonel Crosland has

25 mischaracterised what he said, so we want to obtain what the other

Page 96

1 military attaches at the meeting reported about that speech.

2 JUDGE ROBINSON: Is this a new request or is it the old request

3 reformulated to respond to the concerns expressed?

4 MR. ROBINSON: That's a very good question. I would have to say

5 it's a new request in the sense that it falls outside the time period of

6 our original request. And should the Trial Chamber also deem this to be a

7 new request, we would ask that you consider it in conjunction with the

8 reformulated requests. I believe that we're not prohibited from making a

9 new request at any time and it would expedite matters if we could have

10 them considered at the same time.

11 JUDGE BONOMY: Mr. Robinson, has General Ojdanic got the text of

12 his speech?


14 JUDGE BONOMY: So what does it matter what anyone else thought of

15 it?

16 MR. ROBINSON: Well, the text of his speech is something that's

17 been in his possession and is subject to disputes as to credibility, so I

18 think the more accurate information we could get from other sources,

19 especially the belligerents from NATO, would enhance the credibility of

20 perhaps the determination the Trial Chamber will have to make between

21 General Ojdanic and Colonel Crosland at the end of the trial.

22 Our second specific item in request number C is concerning the

23 contacts between General Clark and General Ojdanic, and we have again

24 indicated that specific pages of General Clark's book in which some

25 evidence of those contacts could be found. And just to give you an idea

Page 97

1 of what we're talking about, in General Clark's book he talks about a

2 meeting on page 156 with General Ojdanic in December of 1998, and he said

3 that Sainovic, the civilian minister in charge of Serb activities,

4 insisted on being present for the entire meeting. "I figured the Serbs

5 didn't quite trust Ojdanic and probably -- especially not in a room with

6 me." And he goes on to talk about how he made a statement to General

7 Ojdanic about violating the agreements, and General Ojdanic listened and

8 appeared confused. Sainovic spoke to him in Serbian and then he replied

9 that it was permitted for our forces to be there. And again when General

10 Clark responded, the confused appearance by Ojdanic was noted, with

11 Sainovic offering more explanations. And General Clark concludes that:

12 "I realised as the dialogue continued that I was talking to a place

13 holder -" referring to General Ojdanic - "someone who was ambitious enough

14 to want the job and maybe not smart enough to ask too many of the hard

15 questions that had gotten General Perisic in trouble."

16 And in another passage from the book, at page 165, he speaks of a

17 phone conversation between General Ojdanic and himself in March of 1999,

18 just on the eve of the NATO bombing, and he talks about how General

19 Ojdanic said that he was moving the forces into Kosovo to defend

20 themselves from NATO, not for any actions against the Albanians, and he

21 talk -- says that General Ojdanic stuck to his position and after about

22 half an hour he broke off the call. "From the Serb perspective, the

23 build-up of his forces made perfect sense but it could also be a pretext

24 for building up the forces against the Albanians."

25 So these are conversations between General Clark and General

Page 98

1 Ojdanic that General Clark has made some brief mention of in his book but

2 we feel that the full reports of conversations like this, as well as other

3 information available to General Clark about the chain of command in

4 Kosovo and General Ojdanic's participation would be highly relevant to the

5 issues of the trial and it's a very specific request.

6 Finally, our third request is for information provided by General

7 Ojdanic's predecessor as chief of staff of the Yugoslavian army, General

8 Perisic. And again it's relevant to the same issues; the chain of command

9 and General Ojdanic's participation and knowledge of any plan to expel

10 Albanians from Kosovo. And we cited news articles that General Perisic,

11 after he had left his position as chief of staff, had been arrested for

12 passing classified information to the United States, and we believe that

13 there exists information from General Perisic that is relevant and could

14 -- and necessary to assist us in defending General Ojdanic at the trial.

15 So that's how we've reformulated.

16 JUDGE BONOMY: Mr. Robinson, is General Perisic not available to

17 you?

18 MR. ROBINSON: That's correct.

19 JUDGE BONOMY: He is available.

20 MR. ROBINSON: No, he's not available to us.

21 JUDGE BONOMY: Why is that?

22 MR. ROBINSON: First of all, he is an accused here at the

23 Tribunal, and he is also accused of the crime of passing secrets to the

24 Americans in Serbia. So we do not believe that he is in a position to

25 confirm or to provide us with information that he passed to the Americans

Page 99

1 relating to General Ojdanic. I will tell you I have not specifically

2 asked General Perisic, but I don't believe that he's in a position to be

3 able to do that, and even if he were, I don't think that information he

4 provided would be credible with respect to information that was actually

5 contemporaneously recorded by those who were receiving the information.

6 So we don't believe that there's any prospect of obtaining this

7 information from General Perisic, and even if it were, that it would be as

8 reliable as what we would receive from the States.

9 JUDGE BONOMY: I think, though, that you've jumped ahead with that

10 response, because we're not at the stage of assessing the reliability or

11 credibility of any particular account of events. I was thinking more of

12 the identification of the existence of such material, and you haven't even

13 explored with Perisic the possibility that there is available material in

14 the form of reports or comments that he made which you ought to try to

15 recover from the States to which he made it.

16 MR. ROBINSON: To ask General Perisic to confirm the existence of

17 this material, it seems to me, would be asking him to directly incriminate

18 himself for charges that are presently pending against him. I could go

19 through that exercise and do that if the Trial Chamber thought that was

20 important, but I think in my experience, and probably the experience of

21 the Trial Chamber, that is not likely to be a fruitful exercise.

22 Finally, I want to turn to the efforts that we've made to secure

23 the assistance of the States, which is the last component under Rule 54

24 bis. We've detailed those steps in our application, and the States have

25 also provided evidence of the further steps that were taken since the

Page 100

1 application was filed.

2 As to the United Kingdom, we accepted their representation that

3 they didn't have any records responsive to items A and B, and we relieved

4 them of providing material in item C(1) because we already obtained from

5 it from the Prosecution. So we're only concerned with items C(2) and C(3)

6 from the United Kingdom, and from our correspondence you can see that we

7 have reached an impasse with respect to voluntary production of that

8 material.

9 As to Canada, they conditioned their voluntary production of

10 material on the use of Rule 70, requiring their consent to use it at

11 trial, and we can't agree to that as we've expressed in the previous

12 hearing.

13 As to the United States, they also conditioned their voluntary

14 participation on the use of Rule 70, but they went a step further and said

15 they would not object to the use of the material they were showing us at

16 the trial. However, they're unwilling to provide all of the material

17 covered by the request, so we've taken the position that we'll look at

18 what they want to show us but it cannot substitute for a Rule 54 bis

19 order.

20 I think our correspondence speaks for itself with respect to our

21 efforts to obtain the material voluntarily from the States, and I'd have

22 to say that, after three years of correspondence, we're yet to receive

23 anything and I think the prospects for a successful voluntary compliance

24 with the request are zero.

25 We've shown our good faith not only in efforts with these States

Page 101

1 but in accepting the representations of the other States and withdrawing

2 our applications as to them when they've been able to conduct a search of

3 their records and indicate that they have no responsive documents.

4 JUDGE BONOMY: Can I -- can you clarify what actually you're

5 saying about the United States. I'm not clear about your position.

6 You've taken the position that you'll look at "what they want to show us."

7 Now, you're saying that's historical or is that still the position?

8 MR. ROBINSON: That's still the position. The United States has

9 offered to show us some documents which they've identified as being

10 responsive to our request, and we've accepted that, and the very last

11 thing that was done was we sent them a draft of what we would propose as

12 an order in which we would be allowed to receive those items, but at the

13 same time we acknowledge that this will not result in the withdrawal or

14 satisfaction of our request because the United States is not willing to

15 indicate that all of the materials that will be provided pursuant to this

16 Rule 54 bis request will be done voluntarily.

17 JUDGE BONOMY: Was the draft a document drawn up in terms of Rule

18 70 or --

19 MR. ROBINSON: Yes, it was.

20 JUDGE BONOMY: And when was that sent to them?

21 MR. ROBINSON: On the 22nd of September. The United States had

22 actually sent us a form that they use for Rule 70 and I adjusted it to

23 reflect their agreement that the materials could be used at the trial if

24 in fact we wanted to use it, and that was the last communication we've

25 had.

Page 102

1 JUDGE BONOMY: There seem to be shaking heads behind you but no

2 doubt that will be clarified in due course.

3 MR. ROBINSON: I have the correspondence with me, if there is any

4 question about that.

5 Just to conclude and step back from the minutiae of our

6 reformulated request and look at the broader picture, I think we could all

7 agree that there should be no difference between the obligation of the

8 United States, United Kingdom, and Canada to cooperate with the Tribunal

9 and those of other governments such as Serbia and Montenegro. They were

10 on two sides of the same war. And I think we should all agree that there

11 should be no difference between a binding order sought by the Prosecution

12 and a binding order sought by the Defence, because we're on two sides of

13 the same case and have a right to equal access to the process of the

14 Tribunal.

15 So I think you need look no further than your own binding orders

16 that you issued to Serbia and Montenegro at the request of the Prosecution

17 in the Milosevic case, and you allowed the Prosecution to receive all

18 minutes of the Supreme Command of the Federal Republic of Yugoslavia for a

19 period of 23 March 1999 to 5 October 2000, which is a period greater than

20 that -- the records we're seeking. And you also allowed the Prosecution

21 to obtain all minutes of the Assembly of the Republic of Serbia and the

22 Council for Harmonisation of Positions on State Policy for the period of

23 April 1990 to June 1997, seven-year period.

24 And if anything, it would seem more important that you don't risk

25 denying evidence to General Ojdanic that could help him establish his

Page 103

1 innocence, and it would seem also that it's more important to hold these

2 States that created and fund the Tribunal to a high standard of

3 cooperation, even when they don't want to, so we avoid the perception of a

4 victor's justice in this Court.

5 I thank you for your consideration. I hope our efforts to modify

6 and reformulate the request have met with your approval, and I hope that

7 we can move forward towards obtaining the information we need for a fair

8 trial for General Ojdanic. Thank you.

9 JUDGE ROBINSON: Mr. Robinson, I'm not sure I like the reference

10 to victor's justice. I don't see how that could be at all applicable to

11 this Tribunal.

12 MR. ROBINSON: I'm not saying it's applicable and it's certainly

13 not a criticism of the Tribunal in any way, but I think that it could be

14 perceived that if there was unequal treatment from some States to others

15 and unequal treatment towards the Prosecution against the accused, that a

16 system of victor's justice could be being employed there, but I don't

17 believe that anything has been done to -- to enhance that perception or to

18 validate it.

19 JUDGE ROBINSON: The historic significance of that term doesn't

20 have any application in relation to the establishment of this Tribunal, in

21 my view.

22 JUDGE BONOMY: Mr. Robinson, in relation to call C, you said that

23 you know that documents falling within C exist, but you were no more

24 specific than that and there's nothing in the submission, I don't think,

25 that adds to that assertion. What is it you say you know exists?

Page 104

1 MR. ROBINSON: I believe, Your Honour, that I made that statement

2 with respect to C(2), which is General Clark's reports of General Clark's

3 conversations with General Ojdanic, and I simply believe -- perhaps I used

4 too strong a term of "know," but given the relations of these

5 conversations in his book, it would appear logical that they had been

6 recorded in some official records.

7 JUDGE BONOMY: So I can read the comment as confined to C(2) and

8 your deduction from what you've read in the book that other more formal

9 records do exist.


11 JUDGE BONOMY: Thank you.

12 JUDGE ROBINSON: Thank you, Mr. Robinson.

13 Ms. Swords, on behalf of Canada.

14 MS. SWORDS: Mr. President and members of the Trial Chamber, it's

15 an honour to appear before you again on behalf of the Government of

16 Canada.

17 We had genuinely thought until recently that such a further

18 appearance would be unnecessary. Nevertheless, as the applicant has

19 proceeded with this second Rule 54 bis application at this time, we

20 appreciate the chance to appear before you orally and to suggest some ways

21 for an appropriate and efficient way forward in this matter.

22 In our oral submissions today, we will make two key points.

23 First, this application is premature and unnecessary, which will be

24 demonstrated through a review of our best efforts to voluntarily identify

25 information potentially responsive to elements of the applicant's

Page 105

1 reformulated request, efforts that have not been made any easier by the

2 approach of the applicant to date.

3 Second, while we do not believe that the order sought by the

4 applicant is necessary or appropriate, today's hearing presents an

5 opportunity to give further direction to the applicant in order to bring

6 the voluntary process to a successful conclusion.

7 I turn first to our most fundamental concern with the applicant's

8 second application, that it is premature and unnecessary and it's a

9 departure from the voluntary procedure ordered by this Chamber in

10 disposing of the first application. In other words, the second

11 application is not a genuine measure of last resort. The mandatory order

12 sought by the applicant is simply not justified.

13 Canada respects its obligations under the Statute and the Rules to

14 act in good faith in responding to requests for assistance, but a party

15 seeking assistance must also act in good faith in accordance with the

16 Statute and the Rules. This means in part that a compulsory order should

17 only be sought when all voluntary avenues of cooperation have been

18 exhausted. This practical and common sense approach is consistent with

19 Article 29 of the Statute of this Tribunal, which is in itself given more

20 detailed expression in Rules 54 and 54 bis.

21 Rule 54 bis (A)(iii) and Rule 54 bis (B)(ii) require that the

22 applicant demonstrate that he has first pursued voluntary measures. And

23 in Blaskic, the Appeals Chamber held that mandatory orders should be

24 sought against States only when they decline to operate voluntarily; that

25 is, only when really necessary. It is for these reasons, we believe, that

Page 106

1 this Chamber ordered on March 23rd that the applicant pursue the voluntary

2 route with respondents.

3 But pursuing voluntary avenues of cooperation requires more than

4 an unfocused and speculative request followed almost immediately by an

5 application for compulsory measures. Given the complex nature of the

6 interests involved, indeed the potential volume of documents requested, it

7 will often also require more than a single exchange of letters between a

8 requesting party and the requested State. What is required is that the

9 requesting party genuinely and fully exhaust voluntary avenues. He must

10 do so first by making appropriate and reasonable requests that meet the

11 requirements of 54 bis; and second, by agreeing, if asked to do so by a

12 requested State, to apply reasonable protections to information provided

13 by that State, protections that are explicitly contemplated in the Rules

14 of this Tribunal. Failing to do any of these things undermines any real

15 possibility of a successful voluntary process.

16 And that, we submit, has unfortunately been the net effect of the

17 applicant's approach to the voluntary process ordered by this Chamber in

18 March.

19 JUDGE BONOMY: Can I just be clear about this argument? It seems

20 to me you're saying that because you regard this second request as not

21 complying with the requirements of Rule 54 bis, you should engage in

22 further discussion. Now, if the applicant takes a different view, that he

23 has complied, then it might be said that any continuing debate on that

24 front is simply a waste of time, and that suggests to me that's the real

25 issue, the relevance of the request. And if we were to decide it did

Page 107

1 satisfy the test, you could hardly complain that he hadn't given you long

2 enough to look through your material; everyone else seems to have been

3 able to do it.

4 MS. SWORDS: Your Honour, as I will come to in my submissions

5 today, we have been able to identify some material in certain cases with

6 respect to his requests, and in other cases we have not. With those

7 things we have been able to identify, we've asked for him to seek a Rule

8 70 procedure and to follow that, and he has declined to do so since the

9 end of June. So we really have two different categories of issues to

10 present to you today. So what I was just about to do was to explain the

11 status of our search so far and the status of our communications with the

12 applicant, which are evident from the attachments and the annexes to our

13 submission, but I would like to summarise them to make it crystal clear.

14 JUDGE BONOMY: Is it -- is it fair to say that you haven't really

15 advanced beyond the 24th of June?

16 MS. SWORDS: We have advanced beyond the 24th of June, Your

17 Honour. With respect to paragraph C(1) of his request, we have identified

18 some information that is responsive to that request. We would like to

19 provide that to the applicant under the protections of Rule 70 but we

20 haven't been able to engage in that discussion with the applicant because

21 he has refused to discuss Rule 70 with us.

22 Does that clarify partly the situation?

23 Basically, to summarise where we are, in the spirit of moving

24 forward cooperatively and getting on with the trial, we looked beyond some

25 of the deficiencies that we thought were in the applicant's reformulated

Page 108

1 request. So, for example, we overlooked the excessive breadth of

2 paragraph A and B of the reformulated request, as well as its focus on a

3 particular method of collection. Through a best-efforts search, some

4 information did turn up that is potentially responsive to the subject

5 matters of paragraph A and B. We offered on June 24th to provide that

6 information to the applicant under the terms of Rule 70. The applicant

7 refused to accept it and has since refused to discuss the matter further

8 with us because his arbitrarily imposed 60-day period for cooperation

9 expired last June.

10 This is all the much harder for us to understand in light of the

11 applicant's recent correspondence with the United States, which we've now

12 seen in the course of this application. That correspondence implies, it

13 seems to us, that the applicant is after all willing to inform -- to

14 receive information from the United States pursuant to Rule 70. The

15 result seems to us to be an unnecessary loss of more than three months in

16 which the applicant could readily have had access to potentially relevant

17 information already identified by Canada.

18 The applicant has tried to justify this rather perfunctory

19 approach by citing an urgent need to prepare for trial. We understand and

20 respect the need for the Tribunal to proceed without delay. However, the

21 applicant's insistence on pursuing a mandatory order is not, in reality, a

22 means of avoiding delay. It has become a cause of it.

23 So in short, the applicant has abandoned, since June 27th, all

24 attempts to resolve the matter voluntarily with Canada, and in our

25 respectful submission that's a clear departure of this Chamber's order of

Page 109

1 March 23rd. The Chamber ordered that we be given a further opportunity to

2 respond voluntarily, but the applicant, as a somewhat deficient

3 reformulation of his request, he's failed to consider our reasonable

4 proposal that Rule 70 be followed, and he has refused to discuss

5 cooperation since June 27th, and in our submission this amounts to a

6 denial of a genuine opportunity for Canada to respond voluntarily.

7 Achieving results voluntarily is possible, however. In fact, in

8 response to Canada's request for further particulars, the applicant did

9 provide additional information to Canada in his June 24th letter, and this

10 has recently allowed us to identify information responsive to paragraph

11 C(1) of the reformulated request. This too is information that we would

12 willingly share with the applicant in confidence, pursuant to Rule 70.

13 This will allow him to examine it and to determine whether he wishes to

14 make use of it in trial. In other words, the voluntary process can work

15 very well if the applicant is prepared to clarify his requests and to

16 agree to protections that were designed in the Rules to facility state

17 voluntary compliance.

18 This givers the Chamber a snapshot of where our cooperative

19 efforts have led to date. In short, we have identified to the best of our

20 ability, given what we think are some deficiencies under Rule 54 bis in

21 his request, some information that's potentially responsive to the subject

22 matter of paragraph A and B, as opposed to its methods of collection, as

23 well as information responsive to paragraph C(1) of the reformulated

24 request. And we are prepared to provide this information to the applicant

25 in confidence and under the terms of Rule 70.

Page 110












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13 English transcripts.













Page 111

1 There also remains some outstanding difficulties with respect to

2 paragraphs C(2) and C(3) of his reformulated request. With respect to

3 paragraph C(2), the most significant difficulty is that it's simply not

4 clear to us what the applicant is now asking for. Rather than clarifying

5 paragraph C of the original 2002 request, paragraph C(2), as reformulated

6 in April, is entirely new. When we asked for more particulars

7 nevertheless to clarify the scope of this new request, the applicant

8 replied to us in June with a description that actually broadened rather

9 than narrowed the request in C(2). Now, in this application for mandatory

10 measures, the applicant has reverted back to asking for the April version

11 of paragraph C(2). As a purely practical matter, this constantly moving

12 target makes it difficult for Canada to know what information and to

13 search for information that the applicant has asked for when he seems

14 uncertain himself of what he wants.

15 In June and again in August, in correspondence with the applicant,

16 Canada identified other difficulties with paragraph C(2), including the

17 possibility that the information sought might be more readily available

18 from other, more direct sources. However, given the applicant's position

19 that the deadline for voluntary responses was June 27, 2005, our questions

20 have gone unanswered. As a result, we have difficulty in even conceiving

21 of how to go about searching for the information sought in the various

22 versions of C(2).

23 With respect to paragraph C(3), our principal remaining difficulty

24 remains the exceptionally broad nature of the request covering nearly

25 seven years of very vaguely described information which may or may not

Page 112

1 exist, may or may not be relevant and necessary, and may in any case be

2 more readily available from General Perisic himself. This strikes us as a

3 clear example of an attempt at discovery rather than production of

4 information.

5 With your permission, I would like to move to how we think this

6 hearing can be converted into an opportunity to cut through some of the

7 causes of delay in order to resolve of this matter voluntarily.

8 As indicated above, we continue to believe that cooperation can

9 produce timely and fair results as long as the parties approach it in good

10 faith without arbitrarily imposed deadlines and in accordance with the

11 scheme for voluntary production envisaged in the Rules. What is required

12 is not a mandatory order requiring Canada to respond to a deficient

13 request for information as submitted by the applicant. Canada has already

14 signalled repeatedly its willingness to provide sufficiently identified

15 relevant and necessary information to the applicant. What is needed is

16 for the applicant to bring his request into compliance with 54 bis and to

17 agree to Canada's reasonable proposal that potentially responsive

18 information be provided under the terms of Rule 70.

19 Canada would invite this Chamber to allow the process it had

20 ordered in March to continue by dismissing the second application.

21 In addition, to ensure that the voluntary process bears fruit,

22 Canada also respectfully invites this Chamber to provide the following

23 directions to the applicant: First, the applicant will receive the

24 information which Canada has identified as potentially responsive to the

25 subject matter of paragraphs A, B, and C(1) of his reformulated request in

Page 113

1 confidence and subject to the provisions of Rule 70.

2 Second, the applicant will demonstrate that it is necessary to

3 seek the information requested in paragraph C(2) and C(3) from Canada

4 rather than from other more direct sources. Assuming he is able to

5 demonstrate this, he will clarify to Canada whether he seeks information

6 as stated in paragraphs C(2) and C(3) of his April reformulated request

7 or, rather, as restated in his June letter to Canada.

8 And third, to the extent he has not already done so, the applicant

9 will provide to Canada the information sought in its letters of June 24th

10 and August 10, 2005.

11 Mr. President, members of the Trial Chamber, Canada would like to

12 take this opportunity to reiterate its commitment to supporting the

13 important work of the Tribunal and to providing appropriate assistance to

14 parties, both Prosecution and Defence, before this Tribunal in the pursuit

15 of international criminal justice.

16 In closing, for all the reasons set out in our written submissions

17 as well as those outlined today, the Government of Canada respectfully

18 requests that this application be dismissed.

19 Subject to any further questions you might have, this concludes

20 Canada's oral submissions on this application.

21 JUDGE BONOMY: Well, can you clarify for me, then, please, what

22 that additional information is in relation to A and B.

23 MS. SWORDS: I think in this case, Your Honour, it would probably

24 be best if the applicant actually took a look at what we have come up with

25 under A and B. We aren't certain it --

Page 114

1 JUDGE BONOMY: No, no. But you're referring to the suggestion

2 that they should give the information requested in the letters of the --

3 did you say the 24th of June?

4 MS. SWORDS: The 24th of June and the 10th of August. I believe

5 with respect to --

6 JUDGE BONOMY: Now, what is that in relation to A and B? I know

7 what it is in relation to C, but what is it in relation to A and B?

8 MS. SWORDS: Well, with respect to paragraph A and B, we did want

9 to clarify that he's seeking the content of A and B, as opposed to simply

10 one particular method of collection of the content.

11 JUDGE BONOMY: He could have formulated this request without using

12 the word "intercepted," and by doing it, of course, he set all the States

13 off thinking, "Now how do we protect our national security interests

14 here?" rather than concentrating on what the information is that they

15 actually have. He doesn't want to know anything about your means of

16 acquiring the information, he just wants to know what you've got. And it

17 seems to me the word "intercepted" is unnecessary.

18 MS. SWORDS: Indeed, Your Honour. In the previous oral hearing

19 the applicant did indicate that it was the content of the conversations

20 that he was interested in rather than the particular means of collection,

21 and what we've done is search all of our records of all kinds and what we

22 have discovered, and we're not sure it's exactly what he wants. There's

23 not much specificity in it. If he's searching for something in

24 particular, it would help us to have more specificity.

25 JUDGE BONOMY: There's two points there: It's for you to respond

Page 115

1 to what he asks for rather than, I think, seek more information about what

2 it is he wants; but secondly, if you take away the issue of interception,

3 then does that also not remove the issue of ownership, because the

4 question simply is: Do you have a report on this matter or do you not?

5 If you do, it's yours. And the fact that it may have been the result of

6 an interception by the United States rather than by Canada is again a hare

7 that we don't need to chase.

8 MS. SWORDS: That's an issue perhaps that could be put to the

9 applicant. Canada would certainly not disagree with what Your Honour has

10 just suggested.

11 JUDGE BONOMY: But am I right in saying you have given more

12 details about C, but you don't really say specifically that there's

13 anything more you're looking for in relation to B.

14 MS. SWORDS: Well, what we did -- what we did ask in our letter of

15 June 24th with respect to A was if there was specific documents that he

16 was asking for. You will recall he's asking for conversations that took

17 place over a six-month period with 23 different people, and it's -- when

18 you do searches, it's not always possible to key on absolutely everything.

19 We've done what we can, and we're -- we've come up with some things that

20 potentially are relevant. If he believes there is something more specific

21 than that, that's what we're asking for, Your Honour. It's a very broad

22 request and we've done a very broad search. If he has more specificity to

23 give us, we're happy to receive it.

24 JUDGE BONOMY: Thank you.

25 [Trial Chamber confers]

Page 116

1 JUDGE ROBINSON: Thank you, Ms. Swords.

2 Mr. Raab for the United Kingdom.

3 MR. RAAB: Good afternoon, Your Honours. Again it's an honour to

4 appear before you this afternoon. May I at the outset perhaps just

5 express on behalf of Professor Greenwood and Mr. Whomersley their regrets,

6 because they are unable to attend today because of prior commitments.

7 Your Honours, the Trial Chamber already has the United Kingdom's

8 written submission, which was filed on the 27th of September of this year,

9 and I will not replicate them today. I would rather concentrate on the

10 main points that remain in issue between the applicant and the United

11 Kingdom.

12 There is no dispute about what Rule 54 bis requires. It's been

13 carefully explained in the order of the 23rd of March and in this

14 Tribunal's earlier jurisprudence. An applicant seeking an order that a

15 State produce information must meet four requirements: Firstly, the

16 applicant must show there's been a genuine attempt to obtain the

17 information on a voluntary basis and that the attempt has failed because

18 of the conduct of the State.

19 Secondly, the applicant must be specific regarding what is sought.

20 As the Tribunal has repeatedly made clear, Rule 54 bis is not a mechanism

21 for discovery or the means by which to conduct a fishing expedition. It

22 is the means of obtaining clearly specified information.

23 Thirdly, the applicant must show that the information is relevant

24 to the issues in the case and how it is relevant.

25 And finally, the applicant must show that it is necessary for the

Page 117

1 Tribunal to issue an order to the State against whom that order is sought.

2 Your Honours, the Chamber's order of the 23rd of March showed that

3 the original request had failed on all four counts, and the Chamber gave

4 the applicant the opportunity to reformulate his request in order to

5 comply with Rule 54 bis, but it did not give him a licence to go away on

6 come back with a wholly new request. And it is an important consideration

7 here because there has to be some finality in a matter which has now

8 dragged on for well over two years. And we submit respectfully, Your

9 Honours, that the revised request contained in the second application,

10 filed on the 27th of June, needs to be evaluated in light of these

11 requests.

12 Your Honours, the revised request still fails to comply with the

13 requirements of Rule 54 bis and the guidance given by this Chamber and

14 elaborated by Judge Bonomy in his separate and concurring opinion, and it

15 fails in four critical respects:

16 First, despite the applicant's attempt to portray the request as a

17 simple refinement of the earlier request, the reality is that a

18 significant part and the whole of what is in issue as between the

19 applicant and the United Kingdom is new.

20 Second, the request still lacks the requisite specificity. This

21 is evident, for example, from paragraph A of the revised request. The

22 applicant is still trying to mount a fishing expedition, requesting

23 production of all recordings, summaries, notes or text of intercepted

24 communications between himself and any of the list of 23 individuals

25 during a period of six months. And although it is the applicant who is

Page 118

1 best placed to identify what conversations he had, when, with whom, and

2 about what, not a single clue is offered despite the very clear guidance

3 on this particular matter in the order of the 23rd of March and Judge

4 Bonomy's separate opinion of that date.

5 The reality is that the applicant, as he himself has observed

6 today, is still fishing, but contrary to his remarks, is in fact still

7 seeking to drag a very large pond indeed.

8 Thirdly, there is no -- there's still no serious attempt to

9 demonstrate the relevance of important aspects of the request. While the

10 revised request makes some attempt to show what issues parts of the

11 requests might be relevant to, there is still very little attempt to show

12 how they may be relevant to those particular issues. And again, that's in

13 spite of the order of the 23rd of March and the very precise guidance in

14 Judge Bonomy's separate opinion.

15 And fourthly and finally, the applicant persists in trying to

16 obtain an order against the United Kingdom and others for production of

17 material which, if it exists at all, originates from other sources.

18 Your Honours, this particular matter was also raised in argument

19 before the Tribunal in December 2004, although it was not considered in

20 the order of 23rd of March and did not need to be.

21 As counsel for the United Kingdom explained at the December

22 hearing, it cannot be necessary under Rule 54 bis to obtain information

23 from a secondary recipient when the primary source of that material, the

24 originator, is subject to the same obligation. This is especially

25 pertinent where the identity of the originator is clearly known to the

Page 119

1 applicant.

2 The United Kingdom pointed out all of these problems in its letter

3 to the applicant's counsel of the 24th of June of 2005, annexed at pages

4 28 to 30 of the second application.

5 In light of that letter, the applicant's counsel Mr. Robinson

6 informed the United Kingdom by letter of the 24th of June, annexed at page

7 31, that the applicant would not pursue requests A, B and C(1) with regard

8 to the United Kingdom. There was in fact correspondence subsequent to

9 that point in time between the United Kingdom and the applicant. It is

10 not annexed to the second application because that application was filed

11 before the additional correspondence took place and indeed in the lists of

12 ongoing consultations. The UK has therefore attached that correspondence

13 as annexes A, B, and C to its written response.

14 Your Honours, what is striking about this correspondence is that

15 at no point did counsel for the applicant make any attempt to engage with

16 the United Kingdom on the objections about specificity and relevance

17 raised with respect to paragraphs C(2) and C(3). Instead, counsel for the

18 applicant pressed ahead with his application for an order. He then put it

19 on hold while he talked to other States, and then suddenly renewed it.

20 In the United Kingdom's letters to counsel for the applicant of

21 the 24th of June and the 7th of July further details were explicitly

22 sought regarding specificity and relevance of the information under

23 paragraph C. Counsel's reply of the 24th of June failed to address these

24 issues at all. We were therefore somewhat surprised to later learn of

25 counsel's letter to the Government of Canada of the 24th of June, which

Page 120

1 was attached at pages 25 to 6 of the second application, and the applicant

2 responded as follows, and I'm quoting: "With respect to the three items

3 sought in item C of the request, I'm happy to provide you with more

4 information to assist you locating these materials."

5 Your Honours, the further details provided did not cure the

6 shortcomings of the request but at least demonstrated some effort, however

7 inadequate, to address the shortcomings of the requests for information

8 under paragraph C. However, it appears that counsel for the applicant was

9 not happy to extend even this level of cooperation to the United Kingdom.

10 Your Honours, notwithstanding UK cooperation to date and ongoing

11 efforts to engage seriously and constructively with the applicant, it is

12 clear on the face of the application itself that he has failed to take all

13 reasonable steps to seek voluntary cooperation from the government of the

14 United Kingdom in relation to paragraph C(2) and C(3) of the revised

15 request.

16 The point of Rule 54 bis is that it envisages first and foremost

17 voluntary cooperation. But in his dealings with the United Kingdom,

18 counsel for the applicant has not seriously attempted such cooperation.

19 Instead, he has preferred to hold a sword of Damocles over our heads which

20 he considered he could sheath or brandish at will.

21 Turning to the second application itself, although it makes no

22 formal distinction between the different States to which it is directed,

23 the applicant's letter of the 24th of June makes clear that so far as the

24 UK is concerned, the order sought relates only to paragraph C(2) and C(3),

25 and nevertheless for the avoidance of doubt, I would just like to take the

Page 121

1 opportunity to reaffirm the points as elaborated in the UK's written

2 response that paragraphs A, B and C(1) of the revised request were

3 misconceived and failed to comply with the requirements of Rule 54 bis.

4 Turning to paragraph C(2), Your Honours, this request is

5 essentially a new request, not a reformulation of the older one.

6 Paragraph C of the original request sought an order for production of:

7 "All correspondence, memoranda, reports, recordings or summaries of any

8 statements made by General Dragoljub Ojdanic during the period 1 January

9 through 20 January, 1999, to any representative of your organisation,

10 including sources of information working on your behalf."

11 Paragraph C(2) of the revised request narrows down the scope of

12 the request by focusing on General Wesley Clark, but introduces two

13 important new elements. Firstly, the time scale is now longer by

14 approximately six months. Secondly, the information sought is no longer

15 confined to statements by the applicant but has been extended to

16 assessments and expressions of opinion about the applicant by General

17 Clark. There has been no attempt to be any more specific about the

18 material sought, despite what we earlier heard of the ostensible knowledge

19 of the applicant of specific documents that exist. Furthermore, there has

20 been no attempt to show how the material sought might be relevant to the

21 issues at trial.

22 In particular, it's difficult to see how General Clark's

23 assessments of the applicant have any bearing on those issues at all. It

24 seems to be more of an attempt to establish something about General Clark

25 than about General Ojdanic.

Page 122

1 And finally as regards paragraph C(2), Your Honours, General Clark

2 was not a British officer and did not report to the UK. In the language

3 of paragraph C of the original request, General Clark was not a person

4 working for the United Kingdom. It cannot be necessary, as required by

5 Rule 54 bis, to make a binding order against the United Kingdom in respect

6 of information originating from another state in circumstances where the

7 identity of the originator is clearly known to the applicant.

8 Your Honours, turning to paragraph C(3), very similar

9 considerations apply. Firstly, the request is new and extraordinarily

10 broad as to date, extending from November 1998 to the present day, six

11 years after the events to which the indictment relates. It's not limited

12 to information about Kosovo or even the former Yugoslavia.

13 Secondly, it's not suggested that General Perisic worked for or

14 gave material to the United Kingdom. No attempt has been made to specify

15 what conversations took place between General Ojdanic and General Perisic.

16 And there has been no attempt to show how the material sought would be

17 relevant to issues at trial. And as we've already heard earlier, counsel

18 for the applicant has not even attempted to request the information from

19 General Perisic himself.

20 Your Honours, if what is really sought is evidence of something

21 General Ojdanic said to General Perisic, the request needs to be far more

22 specific. On the other hand, if what is sought is evidence of what

23 General Perisic thought of General Ojdanic, and to the extent that it is

24 relevant at all, which we doubt, the appropriate course must be to ask

25 General Perisic.

Page 123

1 In closing, the United Kingdom respectfully asks the Tribunal to

2 dismiss the application insofar as it concerns the United Kingdom. And

3 unless I can be of further assistance, that concludes my submissions on

4 behalf of the United Kingdom.

5 JUDGE BONOMY: Thank you, Mr. Raab.

6 Mr. Johnson for the United States of America. Yes.

7 MR. JOHNSON: Mr. President, members of the Court, it is an honour

8 to appear again before this Tribunal on behalf of United States. Nearly a

9 year ago Your Honours heard detailed oral submissions from the United

10 States and other NATO members, objecting to the first application of the

11 accused. That application sought access to highly sensitive intelligence

12 not because the Defence had reason to believe that any of the requested

13 States held specific material that was relevant and necessary to the case

14 but because the Defence hoped that by being given broad access to such

15 intelligence it might discover something of use. The Defence rebuffed

16 various efforts of United States to refocus the request to minimise the

17 national security sensitivity, add specificity, and justify its relevance.

18 Moreover, at the time of the first oral argument, the Defence had rejected

19 for nearly two years an outstanding offer of responsive information from

20 the United States.

21 Your Honours denied the first application but allowed the Defence

22 leave to reformulate it to provide another opportunity to remedy its

23 defects and to pursue voluntary cooperation from the relevant States.

24 What has changed in the intervening year between the first oral

25 hearing and the present one? Regrettably, very little. Despite some

Page 124

1 superficial changes to parts A and B of the request, it is of the same

2 discovery character as the original. Part C has not been reformulated

3 but, as counsel for the applicant concedes, has been replaced by an

4 altogether new and different request that seeks information beyond the

5 scope of the original.

6 What remains the same with respect to part C is that, like the

7 original, the request is made without any explanation as to its relevance

8 to the issues at trial. As to the process, the Defence has continued its

9 failure to take reasonable steps to obtain the voluntary cooperation of

10 the United States. I will not belabour the history of our dealings with

11 the Defence prior to the first oral hearing, other than to note that they

12 began with a message from the Defence indicating an expectation, indeed a

13 desire, to bring this matter to litigation, and they have continued in

14 that vein to date.

15 JUDGE BONOMY: Mr. Johnson, you're not the first to suggest that

16 there hasn't been an attempt to explain the relevance of these matters to

17 issues in the trial, but surely the four issues which are set out in

18 subparagraph (3) of both A and B, and they're also incorporated into C,

19 are clearly issues that you can identify as issues at the trial and the

20 state of mind which can often be determined from what is said by a person

21 as well as what he does is surely something that's relevant to each of

22 these issues.

23 MR. JOHNSON: Your Honour, I do think they help focus the request

24 and in a little bit in my submission I will analyse that issue in

25 particular. And if any question remains, I will try to respond again,

Page 125

1 Your Honour.

2 Just as the United States' efforts to work with the Defence

3 cooperatively to narrow the focus of the first request and minimise its

4 security sensitivity were rebuffed our similar efforts to engage the

5 Defence on the revised request were also rejected. Our interactions since

6 the first hearing are detailed in the submission we filed last week but I

7 would just highlight a recent example for you.

8 On August 25th, 2005, at the Status Conference Your Honours held

9 with respect to the request, the Defence agreed that it was premature to

10 proceed with an application for a 54 bis order because it was engaged with

11 discussions with two States, presumably including the United States.

12 On August 29, four days later, and over two and a half years after

13 having first been offered certain responsive information by the United

14 States, the Defence finally accepted our offer to receive it subject to

15 the same conditions to protect the information we had requested

16 originally. But despite the representation at the Status Conference and

17 while we were working out the modalities to provide this information - and

18 I would just note in this respect that the letter counsel referred to of

19 September 22nd was -- we simply never received that by e-mail or fax or

20 hard copy - the Defence without notice to us changed tacks and informed

21 the Chamber on September 6th - this is just a week after it accepted our

22 offer - that it was necessary to bring this matter to judicial decision.

23 In a footnote to its Status Conference report, the Defence

24 apologised "for taking a more deliberative position at the Status

25 Conference," but when dealing with States on a request like the present

Page 126

1 one, a more deliberative position is precisely what I would submit is

2 called for. Working cooperatively with States to refine and focus a

3 request and address their concerns, as my colleagues have outlined, is an

4 essential aspect of the obligation to take reasonable steps to obtain

5 voluntary cooperation. The Defence has failed to do this, and the present

6 application should be rejected on that ground alone.

7 But beyond the failure to cooperate, the request itself remains

8 fundamentally deficient and falls far short of the threshold required by

9 Rule 54 bis and the Tribunal's jurisprudence.

10 In the remainder of my presentation, I intend to address each part

11 of the revised request against the guidelines Your Honours laid out in

12 your decision of March 23rd. I hope to show that parts A and B of the

13 request continue to lack the requisite specificity, and more

14 significantly, fail to establish relevance. I will also show that

15 irrespective of whether you find the necessary specificity and relevance,

16 that portion of the request is moot and should be dismissed because United

17 States has already answered it.

18 We informed the Defence on June 20, 2005, that we had reviewed all

19 information in our possession within the scope of the request to ensure

20 that the United States had no exculpatory information relevant to any of

21 the four issues referred to by Judge Bonomy and identified by the Defence

22 as being relevant to the case. We found no such information. All that

23 remains of this request, therefore, is that portion of it which was

24 over-broad and irrelevant to begin with; namely, information that is not

25 within the potentially exculpatory categories identified by the Defence.

Page 127

1 JUDGE BONOMY: Why do you -- why do you say, both in your written

2 submission and today, that this request is confined to exculpatory

3 material?

4 MR. JOHNSON: Well, my submission, Your Honour, is that the

5 request itself is overly broad because, with respect to those four

6 categories, it encompasses information that would be potentially

7 exculpatory as well as information that is not. And our submission is

8 that, to the extent the Defence is asking the information relevant to the

9 Defence case, would presumably be that which would tend to mitigate the

10 guilt of the accused.

11 JUDGE BONOMY: But you see, that then means that you arrogate to

12 yourself the right to determine what is and what is not exculpatory, and

13 surely that's not the job of any State from whom material is sought.

14 Surely the simple job of the State is to try to identify material which is

15 covered by a request.

16 MR. JOHNSON: Your Honour, my response to that is that we are

17 being placed in that position by the nature of an overly broad Defence

18 request to begin with. If the request itself had been more specific and

19 had identified and focused on specific content, then our government would

20 have been in a better position to respond precisely to those bits of

21 information asked for. The Defence, despite our repeated requests, has

22 been unable to do so, and that puts us in the position of either rejecting

23 it wholesale as an inadequate request, or making the effort we have to try

24 to move this process forward of distilling from that those portions that

25 would seem to be relevant and pertinent to the case.

Page 128

1 I guess the other point I would add is that in the Rule 68

2 context, when you are dealing with parties directly opposed to each other,

3 the Prosecution and the Defence, the Prosecution is entrusted in that

4 context with doing precisely what you stated, making a judgement about its

5 holdings and whether it has information that is potentially exculpatory

6 that must be disclosed. So I would submit that when dealing with a third

7 party State that is not directly involved in an adverse proceeding with a

8 party, it isn't so incongruous for us to take that approach.

9 JUDGE KWON: Mr. Johnson, if you could elaborate on the issue why

10 you say the request A(1) is too over broad.

11 MR. JOHNSON: Your Honour, I will get to that --

12 JUDGE KWON: I will wait for it.

13 MR. JOHNSON: With your permission, I will get to that. I'm

14 concerned if I try to jump the gun, I'll end up confusing matters more

15 than being clear.

16 JUDGE KWON: Proceed.

17 MR. JOHNSON: To finish my -- to finish my initial overview, I

18 would just note that, as for part C, this request is new, as the Defence

19 has conceded, and no effort has been made by the Defence to respond to the

20 United States' queries and explain its relevance, justify its necessity,

21 or explain why the United States is in the best position to provide the

22 requested information. And I would note, as my UK colleague did, that it

23 wasn't until we saw the Canadian submission of the September 28 and the

24 annexed letters that we realised the Defence had in fact engaged in some

25 back-and-forth with Canada with respect to C. That kind of response never

Page 129

1 occurred in our communication.

2 The failures of the Defence to meet the required standards with

3 respect to all three parts of the request would be enough on their own to

4 warrant dismissal but become all the more significant given the serious

5 national security implications of the request.

6 As we have previously explained, the request as framed is directed

7 at information of the highest national security sensitivity, and at a

8 minimum, this should reinforce the need to hold it to the highest

9 standards of meeting the requisite requirements.

10 Now, let me move, as Your Honours have indicated, to a more

11 detailed review of parts A and B of the revised request.

12 JUDGE BONOMY: I need to be clear on this. You can't tell whether

13 the information is of the highest national security sensitivity, can you?

14 And --

15 MR. JOHNSON: What I would -- what I submit, Your Honour, is that

16 had the request not been phrased, as you have suggested on a number of

17 occasions, to focus on intercepted communications, then this issue would

18 not present itself so directly. But despite the previous argument we had

19 on this issue, despite the suggestions of Your Honour, the second

20 application retained that precise language, and as long as that precise

21 language remains there, a response by us confined to that request would

22 seem to directly implicate these kinds of sensitive national security

23 issues.

24 JUDGE BONOMY: No, Mr. Johnson, it doesn't seem to me that's the

25 way you go about your negotiations. You go about your negotiations, it

Page 130

1 would appear, on the basis that we will see if there is any material and

2 we'll discuss with you, if you're willing to engage, whether we might

3 provide that material on a certain basis. You don't get into the question

4 of how you got the material, do you?

5 MR. JOHNSON: In terms of our dealings with the Defence, you're

6 precisely right, Your Honour, that we try to -- request on the face of it

7 was one that raised these serious concerns and went back to the Defence

8 with suggested ways to rephrase that in a way that would not present

9 these. And in fact, the outstanding request of information that has been

10 outstanding for nearly three years was in response to a reformulation of

11 the original request that had deleted the reference to intercepted

12 communications, but then as that proceeded, that language came back in.

13 But I accept what you are saying, Your Honour, that to the extent the

14 request is not focused on that, we have endeavoured in our dealings with

15 the Defence to change that focus --

16 JUDGE BONOMY: You see, if we make an order to produce material

17 and then you discover something that the production of would lead to some

18 impact on your national security interests, then you can ask us thereafter

19 to do something about that. And equally, you can not only use Rule 70

20 now, but it would appear, from what the Appeals Chamber has recently

21 decided, that you can actually voluntarily provide information and then

22 seek, at the same -- or agree to, and then seek protective measures for

23 that material.

24 So whether national security interests are affected is a matter we

25 can look at later, is it not?

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Page 132

1 MR. JOHNSON: I do think it is an issue that arises later, and I

2 would say, particularly given our position, that we have responded with

3 respect to parts A and B of the request, which I think present the most

4 acute issues in terms of national security, and I would certainly

5 associate myself with the argument made by my colleague from Canada, but

6 one needs to approach this looking not just at Rule 54 but at the other

7 relevant Rules, including Rule 70. It would seem anomalous to us in a

8 Rule 70 context in dealing with the Prosecution we could protect precisely

9 this kind of national security information, but with the Defence, that

10 could be leapfrogged over. And we would take the same view that our

11 colleague from Canada does about the necessity of the use of Rule 70.

12 JUDGE BONOMY: I don't think there is a difference. The

13 Prosecution just happen to accept material from you under Rule 70 but they

14 could just easily refuse to accept it and apply under Rule 54. It just

15 happens to be the case they don't intend to do it.

16 MR. JOHNSON: Well, perhaps we're talking about a theoretical

17 issue, Your Honour, but we would take perhaps a different view of how that

18 issue might turn out.

19 With respect to the parts of requests A and B, I will not -- I

20 will briefly summarise what they are because I think it is relevant to how

21 the United States construed and applied them.

22 Part A seeks copies of intercepted communications that took place

23 during an approximately six-month period between the accused and any one

24 of 23 named interlocutors that he participated in from Belgrade, although

25 as I understand from their earlier submission, since he was in Belgrade

Page 133

1 the whole time, this is hardly a restriction. And that, quote "may be

2 relevant to one of four issues; the first knowledge or participation in

3 the deportation of Albanians from Kosovo or lack thereof; second,

4 knowledge or participation in the killing of civilians in Kosovo or lack

5 thereof; whether a formal chain of command on matters pertaining to Kosovo

6 was respected within the FRY or Serbian governments; and lastly, efforts

7 to prevent and punish war crimes in Kosovo or lack thereof."

8 Part B of the revised request seeks copies of any intercepted

9 communication in which the accused was mentioned took place during the

10 same time period and took place at least partly in the FRY involving at

11 least one party who held a position in the government, armed forces, or

12 police and that may be relevant to one of the same four issues enumerated

13 with respect to A.

14 Now, our pre-hearing submission details how parts A and B of the

15 revised request continue to fail to meet the requirements of 54 bis with

16 respect to specificity, relevance and necessity, but what I would like to

17 focus on now is how they fail to meet the standards that Your Honours laid

18 out with respect to the first application.

19 In your March 23rd decision, you stated that a requesting party

20 must "identify as far as possible the documents and information to which

21 the application relates" and must "identify specific documents and not

22 broad categories." Your Honours also noted that part A of the request did

23 not attempt to state when and where the communications took place and did

24 not mention the issues the communications might relate to.

25 With respect to B, you observed that it did not identify the

Page 134

1 issues to which the documents sought relate. Your Honours further

2 suggested that in order to reformulate parts A and B appropriately, the

3 Defence should also specify "as far as possible, the place and dates of

4 the intercepted communications sought."

5 And Your Honour Judge Bonomy provided further elaboration in this

6 direction, observing that the accused is particularly well placed to make

7 an application for relevant material with respect to part A which seeks

8 information regarding statements made by him and that "he will certainly

9 be able to set out the places, such as an office, where and the sorts of

10 occasions on which he probably had telephone discussions relating to

11 matters which are the subject of the indictment. He is also obliged to

12 specifically identify the matters in issue in the case to which the

13 documents he seeks are said by him to be relevant and to indicate how

14 they're relevant to these matters."

15 In our submission, all of these directives are consistent with a

16 fundamental principle of Rule 54 bis; namely, that it is a tool used to

17 obtain specific relevant and necessary information that an applicant has

18 reason to believe exists and not a means to conduct discovery on

19 governments in the hope of finding something useful. If the Defence is

20 aware of specific relevant conversations about which it seeks information,

21 then it should not be difficult for it to provide the details urged by

22 Your Honours, such as the place, date, participants, and content of the

23 specific conversation sought. But the Defence has done no such thing in

24 its revised request because, despite various minor changes, it remains in

25 essence an attempt at discovery.

Page 135

1 The Defence doesn't refer to specific conversations it is seeking

2 information about because it isn't seeking information about specific

3 conversations. It is instead trying to capture a broad sweep of

4 conversations in a six-month period involving any of 23 participants in

5 the hope that one of them may have useful content. What that content is

6 we don't know because the defendant remains unable to attach specific

7 content to a specific conversation. Indeed, the Defence has not even been

8 able to allege that the conversations are exculpatory. Its request also

9 encompasses, as I discussed before, conversations that show the accused's

10 knowledge or participation in the alleged crimes.

11 In our submission, a properly formulated request would be premised

12 on the content of the information sought. It would describe the content

13 of the alleged conversation and the participants and provide information

14 as to its approximate date. Of the thousands of conversations that are

15 potentially swept up within the scope of the revised request, the Defence

16 has been unable to do this with respect to even one conversation.

17 It is for similar reasons that the revised request continues to

18 fail to meet the relevance requirement. Your Honours stated that under

19 Rule 54 bis and the Tribunal's jurisprudence, the requesting party must

20 indicate how the document or -- the documents or information to which the

21 application relates are relevant to any matter at issue in the case, and

22 "necessary for a fair determination of that matter."

23 While the addition of the four "issues in the case" to which the

24 conversations "may be relevant" provides a clear indication of what the

25 Defence is hoping to find in its discovery mission, it does nothing to

Page 136

1 describe how a particular conversation sought is relevant to the case.

2 The Defence has described theoretical relevance, not actual relevance. In

3 other words, the Defence is saying that if a conversation record is found

4 that touches on one of these issues, then it is relevant. But we would

5 submit that that puts the whole process backwards. The request needs to

6 proceed from an assertion that in a specific conversation the accused made

7 a statement touching on specific relevant matters in the case. If that

8 was the case, then the relevance of the conversations or their lack

9 thereof could be readily established, but the Defence cannot do this and

10 does not do it because to date it has not alleged any such specific

11 conversations that it is seeking to corroborate. But even if Your

12 Honours were satisfied that the revised request met the specificity and

13 relevance requirements of 54 bis, we would submit that it should be

14 dismissed with prejudice because it has been answered in relevant part by

15 the United States and no amount of reformulation will change that answer.

16 In an effort to be responsive both to the Defence and to efforts

17 of this Chamber to bring this protracted saga to a close, the United

18 States took the initiative to apply a reasonable construction to the

19 request and conduct a search for relevant material. The premise of the

20 United States' effort was the directive of Your Honours to the accused as

21 detailed by Judge Bonomy which was "to start by identifying the issues in

22 the case to which the material is relevant."

23 We therefore began with the four issues delineated by the Defence

24 as being of potential relevance to the case. As I noted previously, the

25 Defence described two of the relevant issues as going to the accused's

Page 137

1 knowledge or participation in the deportation or killings or the lack

2 thereof. We focused on the lack thereof because only such information

3 would be germane to the Defence.

4 The Defence also described a third relevant issue as being the

5 accused's efforts to "prevent and punish war crimes" or lack thereof. In

6 this case we focused on the efforts and not the "lack thereof" because

7 only the former would be relevant to the Defence.

8 The final relevant issue described by the Defence was whether the

9 formal chain of command was respected. Again, since only information

10 indicating that it was respected would be relevant to the Defence case, we

11 focused on that aspect. We then conducted a search of all information in

12 the possession of the United States that was within the scope of the

13 request and relevant to it the issues as construed -- as I just described.

14 That search did not exclude any types or categories of information.

15 That search turned up no, no responsive information and we reported that

16 in writing to the Defence on June 20, 2005.

17 As I would hope is clear from my description, the only information

18 that was not captured in the scope of our search was information outside

19 the scope of the request or that was either not relevant or incriminating.

20 Such information, by definition, cannot be relevant or necessary to the

21 Defence case. Therefore, because our search and response encompassed the

22 relevant matters in parts A and B of the Defence request, those parts of

23 the request should be dismissed with no any opportunity for reformulation,

24 at least with respect to the United States.

25 Let me now turn to part C of the revised request. As originally

Page 138

1 formulated, the request in part C asked for records of any statements made

2 by General Ojdanic during the period 1 January through 20 June 1999 to any

3 representative of the United States. In the Trial Chamber's March

4 decision on the first application, you rejected the original request

5 because the applicant "had failed to identify as far as possible the

6 documents sought," and had failed "to indicate how they are relevant and

7 necessary." And Judge Bonomy, you elaborated on this conclusion and

8 explained that the principal difficulty with respect to part C was that

9 the applicant had advanced only a "general, vague and obscure description

10 of the material sought" and that the request lacked basic clarity.

11 Part C of the request has been reformulated in the new application

12 but, rather than clarifying the original request, it is -- the applicant

13 has essentially advanced several new requests, as he conceded.

14 All three requests are outside the time frame of the original

15 request in the indictment, and C(2) and C(3) seek for the first time

16 information relating to Generals Perisic and Clark rather than statements

17 of the accused, which was the focus of the original. We did not consider

18 as a preliminary matter that these new requests are appropriate under the

19 Chamber's order of March 23rd which gave the Defence leave to reformulate

20 the original requests rather than leave to file new requests.

21 But leaving aside the issue of newness of part C, it is clear that

22 these requests also fail to meet the requirements of 54 bis. While C(1)

23 and, to a lesser degree, C(2) and C(3) are more specific than the

24 original, they fail completely to make any showing as to how they are

25 relevant and necessary. The Defence does not allege the purported content

Page 139

1 of any of the information targeted in C or explain how third party

2 assessments about the accused are relevant to whether or not he committed

3 the crimes at issue.

4 For example, in C(1), the applicant seeks others' reactions to a

5 speech that he admittedly gave and which we learnt today he apparently

6 also has a copy of. He claims that this is needed to prove what was

7 actually said in the speech and to counter testimony given by Colonel

8 Crosland in the Milosevic trial. The accused has not, however, explained

9 how the speech, let alone its characterisation by third parties, is

10 relevant or necessary to the Defence in this case. Moreover, if he gave

11 the speech and has a copy, he would be best positioned to know what was in

12 it and to make assertions about that.

13 Part C(2) suffers from similar flaws. This is a very broad

14 request seeking general opinions of General Wesley Clark on General

15 Ojdanic. It is not clear how the subjective opinions of General Clark on

16 the accused's "attitude, position and competence" could be relevant to the

17 Defence in this case or how they would be necessary to a fair

18 determination of the matters at issue.

19 Part C(3), which seeks information allegedly provided by General

20 Perisic, likewise lacks a showing of relevance or necessity. As with

21 parts A and B of the request, it also fails to specify the particular

22 content sought. It is instead a broad request for any information General

23 Perisic may have provided in the hope that there is something useful in it

24 for the Defence. And as others have stated before me, it is unclear why

25 the Defence would seek this information from States rather than seeking it

Page 140

1 directly from General Perisic.

2 Not only has the Defence failed to demonstrate sufficient

3 relevance and necessity with respect to these part C requests, but it has

4 also failed to take reasonable steps to obtain this information from the

5 United States. The April 2005 formulation of part C is essentially a

6 series of new requests and the Defence has jumped into litigation with

7 respect to these requests rather than engage in a good faith effort to

8 seek the information on a voluntary basis from the United States. Our

9 letter of June 20, 2005, detailed our concerns about the absence of a

10 showing of relevance and necessity with respect to part C of the request

11 and offered assistance to develop a further request that addressed the

12 concerns raised. The Defence never responded to this offer or sought to

13 address these issues. Instead, its reply and subsequent exchanges of

14 correspondence with us focused exclusively on the information we had

15 offered to make available to the Defence in January 2003. And as I noted,

16 it was not until we saw Canada's filing of September 27th that we realised

17 that the Defence had in fact engaged in such an exchange with that

18 government.

19 Because the Defence has failed to take reasonable steps to obtain

20 the cooperation of the United States with respect to this new request, and

21 because it failed to establish its relevance and necessity of the material

22 sought, we submit that part C of the request should be dismissed.

23 Before I conclude my oral presentation, I would like to reiterate

24 the serious national security implications of the request as currently

25 framed and how they are relevant to your consideration of the application.

Page 141

1 As we have stated before, the United States has a compelling national

2 security interest in protecting information about intelligence sources and

3 methods, including whether or not we possess particular intelligence

4 information. Disclosure of such information may reveal the extent and

5 nature of United States' capabilities and where and how they might be

6 directed. A state's ability to protect its sources and methods, including

7 not to reveal their existence, scope and use, is fundamental to their

8 effectiveness, and when such information is released, it compromises not

9 just the information gathered through the source or method but the source

10 or method itself. These are -- such information is among the most highly

11 protected of national security assets and goes to the heart of state

12 sovereignty and security.

13 The fact that the present request implicates national security

14 information of high sensitivity requires, if not the outright denial of

15 such a request, at a minimum that any effort to compel its production and

16 thereby intrude into aspects of the state sovereignty be held to the

17 highest standards and subjected to rigorous scrutiny.

18 The Blaskic Court contemplated such an intrusion in cases where

19 the information sought by the Tribunal might be "of decisive importance"

20 or "crucial." We would submit that the present request does not approach

21 such a standard. Moreover, the Tribunal recognised the importance of this

22 issue when it established Rule 70 to provide a mechanism for providers to

23 share sensitive information without compromising their sources or methods,

24 and to allow a defendant to have resource to Rule 54 bis without engaging

25 in a Rule 70 process with a provider would, we would submit, vitiate this

Page 142

1 protection.

2 To conclude: Parts A and B of the revised request retain the

3 fundamental flaws of the original. They seek access to a broad category

4 of information in the hope of discovering something relevant rather than

5 seeking specific information that the Defence knows to be relevant. The

6 Defence has failed to establish the specificity, relevance, and necessity

7 of the request. And moreover, A and B should be dismissed with prejudice

8 because the United States has conducted a search that addressed all

9 relevant aspects of the request and located no responsive material.

10 Part C of the request is essentially three new requests. The

11 Defence has not established the relevance and necessity of the information

12 sought nor has the Defence with respect to any parts of that revised

13 request engaged in a genuine effort to work with the United States to

14 address our concerns and obtain information voluntarily.

15 For all of these reasons, as well as those detailed in our written

16 submissions, we request that the second application be rejected. Thank

17 you.

18 JUDGE BONOMY: Mr. Johnson, could you clarify one thing about Rule

19 70 for me. If a party accepts material under Rule 70, how does he then

20 make use of the material or get authority to use it should it turn out to

21 be valuable in his eyes for the presentation of his case?

22 MR. JOHNSON: Your Honour, we've had a fair amount of experience

23 in that respect, and the practice that we have followed with both the

24 Prosecution and with the Defence, we apply equal standards to both, is

25 that when information is shared under Rule 70, if they believe any of it

Page 143

1 is relevant for use at trial, they come to us with a request, they explain

2 and justify why they believe it is -- it is necessary, and then we -- we

3 respond. And if we provide authorisation, then that material is used.

4 I can tell Your Honours that in every case involving both the

5 Prosecution and the Defence that we have received such requests, we have

6 provided the authorisation. We may request that specific protective

7 measures be added to govern the use and modalities of it, but that has

8 been our practice.

9 JUDGE BONOMY: Well, let's assume just for the moment that you

10 don't agree. Are the hands of the applicant then tied because, rather

11 than using Rule 54, he went down the Rule 70 road with you?

12 MR. JOHNSON: In that case we would submit that they would be,

13 because if they weren't, then there would be no purpose, frankly, to Rule

14 70 because any party could then skip over it and go to Rule 54 bis if they

15 didn't like the answer they received.

16 JUDGE BONOMY: That would explain the reluctance of any Defence

17 counsel to go down the route of Rule 70, would it not?

18 MR. JOHNSON: Your Honour, I can understand that, but I think

19 that's also a decision the Tribunal made when it put Rule 70 into place.

20 It recognised that there needed to be a trade-off and that Rule 70 allowed

21 governments a mechanism to share sensitive information that otherwise

22 might not be shared with the Tribunal, and the trade-off of this was to

23 provide some assurance to the governments about how that information was

24 used and protected. We would submit that was the purpose of it, and if

25 Rule 54 bis is allowed to essentially trump it, then information that has

Page 144

1 been shared under Rule 70 with an expectation of its being protected would

2 suddenly become, after it has been shared, stripped away of that

3 protection under 54 bis.

4 JUDGE BONOMY: Mr. Robinson made a point which was picked up

5 earlier, that it is difficult to accept that an organisation comprising a

6 number of States can go to war with another State, that that State's

7 serving soldiers should then be the subject of a criminal proceedings, and

8 the countries that went to war with them then say, oh, well we're not

9 handing over the material that you seek because we have national security

10 interests.

11 MR. JOHNSON: Well, Your Honours, I mean, first I would point out

12 the United States nor any of these other States are involved in these

13 particular proceedings, and unlike other States that the Prosecution and

14 others have dealt with in the region, our approach and that of other NATO

15 governments, we would submit, has been consistently to cooperate with the

16 Tribunal and with requests from both the Defence and Prosecution. There

17 isn't an absence of good faith in that respect. There is not a record of

18 my government, or I would submit, any of these others, abusing the

19 protections offered by the Tribunal and not responding to legitimate

20 requests. And as has been reflected in some of the decisions of this

21 Tribunal, there is a basis to view governments such as ours in a different

22 stead from those that have been resistant to and, frankly, have on

23 occasion obfuscated efforts by the Tribunal to proceed.

24 The other point I would emphasise, Your Honour, is that we are --

25 we are sensitive to that concern and that is why our consistent practice

Page 145

1 has been to find ways and to work with counsel, both on the Defence and

2 the Prosecution, to make relevant information available, and we have been

3 very successful in that respect with the exception of this case before

4 you.

5 JUDGE BONOMY: I understand the point particularly in relation to

6 C(3) where it actually takes you up-to-date, but in relation to the rest

7 of it, it's largely historical. And I certainly for one, speaking for

8 myself, can see the reason for reluctance on the part of any Defence

9 counsel in not going down the Rule 70 route.

10 MR. JOHNSON: I would submit, Your Honour, that that's a decision

11 for Defence counsel to make in a particular case, but that if they decide

12 not to go down that route, the alternative shouldn't be to compel the

13 governments to expose sensitive information that otherwise under Rule 70

14 could be protected, because again that would make Rule 70 purposeless.

15 JUDGE KWON: Let me ask one question before we break. Let me go

16 back to the issue of specificity. You said several times that materials

17 should be specifically relevant. So I'm of the impression that you, by

18 using the term "specific relevance," are trying to combine two

19 requirements, specificity and relevance, together, thereby making the

20 requirements more restrictive.

21 Speaking for myself, I take specificity as being identifiable, as

22 was -- as is provided by Rule 54 bis (A)(i). So the Chamber, as well as

23 the separate and concurring opinion of Judge Bonomy, didn't raise the

24 issue of -- I'm sorry, I beg your pardon, the issue of specificity in

25 relation to request A(1). So what mattered was relevance. But the Rule

Page 146

1 doesn't say it should be specifically relevant or whether it should be

2 exculpatory or not. So I don't think it is for the State to assess the

3 material to be specifically relevant or exculpatory.

4 Of course it is a separate matter if that job is too onerous or

5 overly burdensome for the State. It's a different matter.

6 MR. JOHNSON: Judge Kwon, I take your point, and I may

7 misrecollecting this, but it may be in Judge Bonomy's concurring opinion

8 he spoke of the different requirements being to some degree intertwined.

9 Or at least, that's in one of the Tribunal's decisions. And I think to

10 some extent that that is true. So it may that be some of these arguments

11 are being made with respect to one word are better attached to another but

12 I don't think that the net effect is to create a higher standard than is

13 otherwise required by the Rule.

14 Our principal concern with a lot of this reformulated request, and

15 particularly A and B, is that it does not proceed from seeking specific

16 content, a specific conversation, something like that, where, if that were

17 shown, it would be easy for Your Honours and anybody else to assess

18 whether it was relevant or not. Instead, what's happening is a broad

19 basket of information is being sought and there is an element of it being

20 onerous to searching for thousands of -- potentially thousands of

21 conversations and then the idea is to sift through those and maybe one of

22 those is relevant to the four issues identified in the request. We don't

23 think that that's -- we think that puts the process under 54 backwards.

24 And it's because the Defence has done that that we feel we are in a --

25 that we feel are we are in a position where we are confronted with a

Page 147

1 request that is overly broad and that does not have the necessary

2 specificity attached to the content. There is no assertion of specific

3 content here. If that was the case, then the United States would not be

4 in the position that you have suggested, of making some assessment as to

5 whether something is exculpatory or not. We could look for records of a

6 particular conversation and, if those existed, an assertion was made as to

7 why it was relevant, we would be in a position to provide that or to

8 explain why we would not provide it.

9 But that's not what we're confronted with here, and it's because

10 we are confronted with something different where that type of specificity

11 and relevance has not been made with respect to the specific content, that

12 we constructed, we construed the request as we did in an effort to move

13 this process forward. And again, we didn't do it making up our own

14 categories of what's exculpatory or not. We took the categories as

15 described by the Defence itself and, as with any search, it's up to the

16 requested party to conduct that search, so we don't feel that involved any

17 more of a judgement by us in focussing on that aspect than otherwise.

18 I'm not sure if that answers your question.

19 JUDGE KWON: Thank you.

20 JUDGE BONOMY: Thank you, Mr. Johnson.

21 Mr. Robinson, if you can give your concluding remarks in ten

22 minutes, then we can go on without breaking. I understand, for technical

23 reasons, we would have to break in ten minutes.

24 MR. ROBINSON: I can do that, Mr. President. That's not a

25 problem.

Page 148

1 JUDGE ROBINSON: I thought you would be able to.

2 MR. ROBINSON: I don't need to keep you longer than necessary.

3 Well, the first thing about Rule 70 and Rule 54 bis, I think, is a

4 very important issue before this Tribunal and one that hasn't been

5 addressed directly in the jurisprudence: Can a party be compelled to go

6 through Rule 70 instead of Rule 54 bis? And I would simply point out, as

7 Judge Bonomy has, the reasons why we do not feel we can be compelled. And

8 it's just a question of control. We want the Trial Chamber to control the

9 decisions about whether evidence can be used or not rather than the State

10 against whom -- who went to war against General Ojdanic. And that's as

11 simple as that. If the Trial Chamber has that control, we're happy. And

12 you can use Rule 54 bis (G), (F), (I) to exercise the control in a way

13 that's very consistent with the national security interests of the State,

14 and that Rule 54 bis provides for that. So we don't think we can be

15 compelled to use Rule 70 and we don't want to use Rule 70 because it will

16 leave the control in the hands of the United States or another State.

17 Going to Judge Bonomy's question about intercepted conversations

18 and can we exclude the word 'intercepted.' If we did that, we would

19 broaden considerably the communications that would be subject to this

20 request. We would have media reports of General Ojdanic's public

21 statements would be communications from General Ojdanic during this

22 period. We could have speeches made by General Ojdanic that were reported

23 by the attaches or the other people who were inside Yugoslavia at the

24 time, so it would broaden rather than narrow the request to take out the

25 word "intercepted."

Page 149

1 Secondly, what would we get in terms of the result? What's

2 important and what makes the evidence of an intercepted conversation

3 particularly probative is the fact that it came from an interception, that

4 it was an unguarded conversation between General Ojdanic and some other

5 person at a time contemporaneous with the events, not some piece of paper

6 that comes into evidence with no foundation as to where it came from or

7 how it was obtained that says that General Ojdanic on some occasion said

8 something. So the fact that it's an intercepted conversation is part of

9 the foundation for which we would seek to use and admit the evidence and

10 it's a necessary and reliable aspect to the fact finding process that

11 would go on at the trial.

12 The government doesn't want to confirm or deny that it intercepts

13 conversations, yet at the hearing in December I played for you General

14 Powell's comments to the United Nations while the whole world was watching

15 in which he played an intercepted conversation between Iraqi soldiers that

16 had been intercepted just one week before his speech. So it's not very

17 convincing that the United States doesn't want to confirm or deny that it

18 intercepts conversations when it's being requested for use in a criminal

19 trial and they're happy to do it when it's being used to convince people

20 that they should go to war in Iraq.

21 Now, turning to the United Kingdom's point that there was -- that

22 this is a new request. Again, I don't think that should make any

23 difference. We've narrowed the request. We've tried. If it's considered

24 new, we're entitled to make a new request. So I believe that it doesn't

25 really advance anything to say whether this is a new request or not. It's

Page 150

1 now before the Trial Chamber. We're entitled to bring that and we did it

2 and with the goal of narrowing the issues in this request as opposed to

3 broadening them, and I think we've been successful to do that.

4 JUDGE ROBINSON: It has no substantive implications whether it's

5 new or not. It's just a procedural matter.

6 MR. ROBINSON: Yes. With respect to the United Kingdom's

7 objections with respect to specificity and relevance as to paragraph A,

8 it's incongruous because at the same time they went and searched and

9 they've represented to us that they made a thorough search and were unable

10 to find any items responsive to the request, and so obviously it was

11 specific enough for them to do that, which is the point of the specificity

12 requirement. They say that material originating from other sources

13 shouldn't be -- they shouldn't be compelled to produce items in its

14 possession that came from other sources. And it may very well be that if

15 we obtain the information from other sources, we don't have to ask the

16 United Kingdom to provide it.

17 But I don't know if you're aware of the letter that was filed by

18 NATO today, but we received something on our e-mail before we came to

19 Court, a letter from NATO saying that they don't have General Clark's

20 material that we've asked for in item C(2), and they in general object to

21 our request. And so if NATO doesn't have item C(2), then perhaps they

22 share or they disperse their information to the other States and perhaps

23 the United Kingdom may be one of the originating sources or the only

24 sources from which we could get this information. And there's no

25 authority that I know of that says that if -- when you ask for an order or

Page 151

1 subpoena for something in someone's possession they're not excused from

2 providing it simply because it's also in someone else's possession. I

3 don't think there's any law that I've seen on that.

4 Finally, with respect to the question of content and Mr. Johnson's

5 point that you should look to the content, that somehow we're required to

6 provide the content of every conversation before we're entitled to seek

7 evidence of intercepted conversations, I would point out that when you

8 allowed the Prosecutor to get the minutes of the Supreme Command of

9 Yugoslavia, or when you allowed them to get the minutes of the Assemblies,

10 you didn't require them to specify the content of any particular meetings

11 over that seven-year or one-year period because the nature of the -- of

12 the evidence itself showed you that it was relevant and it was specific

13 enough that the government of Serbia and Montenegro could find it.

14 The same thing is here. Intercepted conversations of General

15 Ojdanic's contemporaneous conversations about the four issues that we've

16 laid out is clearly relevant and it's specific enough that they could find

17 it. That's all that's needed, and I think that if you look at it that

18 way, then our request should be granted. Thank you.

19 JUDGE ROBINSON: Thank you very much, Mr. Robinson, and I thank

20 all the parties for their submissions, and the Trial Chamber will give a

21 decision shortly.

22 We are adjourned.

23 --- Whereupon the Motion Hearing adjourned

24 at 4.58 p.m.