Case No. IT-02-54-T
IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision:
17 December 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

__________________________________

THIRTEENTH DECISION ON APPLICATIONS PURSUANT TO RULE 54bis OF PROSECUTION AND SERBIA AND MONTENEGRO

__________________________________

Office of the Prosecutor: Amici Curiae:

Mr. Geoffrey Nice Mr. Steven Kay
Ms. Hildegaard Uertz-Retzlaff Mr. Branislav Tapuskovic
Mr. Dermot Groome Prof. Timothy McCormack

Government of Serbia and Montenegro: The Accused:

Mr. Vladimir Deric Mr. Slobodan Milosevic

 

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”),

BEING SEISED of a confidential “Prosecution’s Report on Compliance with Trial Chamber Decisions in Relation to Rule 54bis and Application for Further Orders Pursuant to Rule 54bis”, filed by the Office of the Prosecutor (“Prosecution ”) on 31 October 2003 (“Motion”), requesting, inter alia, the Trial Chamber to (1) set a final date by which the Government of Serbia and Montenegro (“Serbia and Montenegro”) must produce certain outstanding material that is the subject of binding orders for production and (2) issue binding orders for the production of certain other material that is the subject of orders for reporting and further specification ,

NOTING the following:

(1) confidential “Serbia and Montenegro’s Response to ‘Prosecution’s Report on Compliance with Trial Chamber Decisions in Relation to Rule 54bis and Application for Further Orders Pursuant to Rule 54bis, filed 31 October 2003’”, filed by Serbia and Montenegro on 01 December 2003 (“Opposition”), opposing the Motion and requesting the Trial Chamber to deny the relief requested therein; and

(2) confidential “Prosecution’s Reply to Serbia and Montenegro’s Response to the Prosecution’s 31 October 2003 Rule 54bis Report”, filed 08 December 2003 (“Reply”), setting forth forensic material disputing representations made by Serbia and Montenegro in its Opposition, such as Serbia and Montenegro’s inability to locate documents from the Accused’s tenures as President of the Republic of Serbia and President of the Federal Republic of Yugoslavia and documents from the Joint-Command for Kosovo and Metohija,

NOTING the prodigious procedural history of these proceedings, much of which has been conducted confidentially on the request of Serbia and Montenegro,

NOTING, in particular, the Trial Chamber’s “Second Decision on Prosecution Motion for Orders Pursuant to Rule 54bis Against Serbia and Montenegro”, issued 12 June 2003 (“Second Decision”), and subsequent decisions thereto, which , inter alia, denied some Prosecution requests for binding orders for production of documentation,1 granted others, and ordered the Prosecution and Serbia and Montenegro to report to the Trial Chamber with respect to certain aspects of the on-going litigation of these matters, such as Serbia and Montenegro’s progress on the search for specific documentation and the Prosecution’s further specification of certain requests for assistance (“RFAs ”),

NOTING that Serbia and Montenegro has produced to the Prosecution the stenographic notes of meetings of the Federal Republic of Yugoslavia Supreme Defence Council,2 which were the subject of the Trial Chamber’s “Decision in Part on Prosecution Motion for Orders Pursuant to Rule 54 bis Against Serbia and Montenegro”, issued 05 June 2003, and proceedings subsequent thereto,

NOTING, with respect to the Second Decision, the following,:

(1) Serbia and Montenegro has completed production to the Prosecution with respect to the following documentation: Ruling 1 – Item 8, RFAs 117, 219; Ruling 3 – Item 163, RFA 85; Ruling 4 – Items 137-139, RFA 309(1-3); Ruling 6 – Item 71, RFA 219, para. 7; Ruling 11 – Item 101, RFA 219, para . 34, Item 103, RFA 219, para. 35; Ruling 12 – Item 50, RFA 219, para. 4, Item 52, RFA 219, para. 4, Items 60-63, RFA 219, para. 4, Item 66, RFA 219, para. 4, Item 68, RFA 219, para. 4; and

(2) the Prosecution, in its Motion, requests no further action at this time with respect to the following documentation: Ruling 2 – Item 12, RFA 117; Ruling 3 – Item 4(a), RFA 79, Item 5, RFA 79; Ruling 4 – Item 79, RFA 219, para . 18, Item 146, RFA 309(10); Ruling 5 – Items 17-18, RFA 119A, Items 43- 46, RFA 175; Ruling 7 – Item 47, RFAs 203, 279; Ruling 11 – Items 70, 95, 98, 100, 102, 104-107, RFA 219, paras 6, 27, 31, 33, 35, 36-39 (respectively ), Items 108-110, RFA 229; Ruling 12 – Item 51, RFA 219, para. 4, Item 53, RFA 219, para. 4, Item 64, RFA 219, para. 4, Item 67, RFA 219, para. 4, Item 69, RFA 219, para. 5, Item 75, RFA 219, para. 11,

CONSIDERING the arguments of the Prosecution and Serbia and Montenegro in the Motion, Opposition, and Reply and the information provided therein regarding the efforts made to locate documentation subject to the Second Decision,

CONSIDERING the provisions of Rule 54bis of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) and the jurisprudence of the International Tribunal concerning the obligation of States to provide assistance ,3

CONSIDERING that, with respect to requested documentation subject to prior orders for production, the Trial Chamber finds that it is appropriate to deny (or otherwise dismiss) the Prosecution’s request for the Trial Chamber to set a final date by which outstanding material must be provided because Serbia and Montenegro has made sufficient efforts to locate the documentation and has thus complied with the Trial Chamber’s orders to the best of its ability (see Annex A attached hereto ),

CONSIDERING that, with respect to requested documentation not subject to prior orders for production, the Trial Chamber (1) finds that it is appropriate at this time to deny (or otherwise dismiss) the Prosecution’s request for the Trial Chamber to issue binding orders for the production of certain documentation because Serbia and Montenegro has made sufficient efforts to locate such documentation ( or because of other reasons); and (2) finds that it is appropriate to issue binding orders for the production of certain other of this documentation, despite Serbia and Montenegro’s past, yet insufficient, efforts to locate such documentation (see Annex A attached hereto),

CONSIDERING that the Trial Chamber, in the public version of its “Fifth Decision on Applications Pursuant to Rule 54bis of Prosecution and Serbia and Montenegro ”, issued 15 September 2003 (“Fifth Decision”), ordered Serbia and Montenegro – in the event that it maintained that the entities designated the “Supreme Command ” and the “Supreme Command Staff”, or any other entity, irrespective of its nomenclature , exercising, through civilian and military leadership, command responsibility and /or control over armed organisations engaged in national defence or security during the state of war in effect in the Federal Republic of Yugoslavia from 24 March 1999 to 10 June 1999, did not exist – to so stipulate by means of a public, written, and inter partes filing with the Trial Chamber; but that Serbia and Montenegro’s response was filed confidentially,4

CONSIDERING that Trial Chamber is unwilling, at this point in time, to grant the Prosecution’s request for “blanket” permission to use as exhibits documents received from Serbia and Montenegro after the deadline imposed by the Trial Chamber’s oral Order of 30 October 2003, i.e., that the Prosecution shall have twenty -one (21) days from 30 October 2003 to produce a final exhibit list; but that the Prosecution may make such requests on a case-by-case basis when and if the need arises,

NOTING Rule 7bis of the Rules, which provides, in relevant part, that the Trial Chamber, where it is satisfied that Serbia and Montenegro has failed to comply with an obligation under Article 29 of the Statute of the International Tribunal in relation to these proceedings, may so advise the President of the International Tribunal, who shall report the matter to the United Nations Security Council,5

PURSUANT to Article 29 of the Statute of the International Tribunal and Rules 54, 54bis, and 126bis of the Rules,

HEREBY ORDERS as follows:

1. The Prosecution and Serbia and Montenegro shall undertake the actions set forth in Annex A attached hereto.

2. Serbia and Montenegro shall file, within three (3) weeks from the date of this Decision and in accordance with the Trial Chamber’s Fifth Decision and “Seventh Decision on Applications Pursuant to Rule 54bis of Prosecution and Serbia and Montenegro”, issued 23 September 2003 (“Seventh Decision”), a public version of its Supreme Command Submission (see, supra, page 4, note 4), with paragraph seven (7) and the prayer for relief on page five (5) redacted.

3. The Prosecution’s request for permission to use as exhibits documents received from Serbia and Montenegro after the deadline imposed by the Trial Chamber’s oral Order of 30 October 2003 is denied without prejudice to the Prosecution making such requests on a case-by-case basis when and if the need arises at a later time.

4. The Prosecution is granted leave to file the Reply.

5. The Prosecution and Serbia and Montenegro are granted leave to file the Motion, Opposition, and Reply in excess of the limit imposed by paragraph C.5 of the “Practice Direction on the Length of Briefs and Motions”, issued by the President of the International Tribunal on 05 March 2002.

Done in both English and French, the English text being authoritative.

___________
Richard May
Presiding

Dated this seventeenth day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]


ANNEX A

Ruling No.

Item Nos. with Corresponding RFA Reference(s)

Disposition of the Trial Chamber

Ruling 3(a)(i)

Items 121-125: RFA 291, paras a-e
Item 134: RFA 291, para. 9
Item 136a: RFA 291, paras 11-15

Documentation relating to the Guards Brigade of the Yugoslav People’s Army (JNA) during events in Vukovar in 1991

The Trial Chamber hereby DENIES the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, on the basis that Serbia and Montenegro has complied to the best of its ability.

Ruling 3(a)(ii)

Item 164: RFA 85

Documentation relating to agreements between the armed forces of the Federal Republic of Yugoslavia and Republika Srpska after May 1992

The Trial Chamber hereby DENIES the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, on the basis that Serbia and Montenegro has complied to the best of its ability.

Ruling 3(a)(iii)

Item 165: RFA 85

Description of the role and function of the 30th Personnel Centre of the Army of the Federal Republic of Yugoslavia (VJ)

The Trial Chamber hereby DENIES the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, on the basis that Serbia and Montenegro has complied to the best of its ability.

Ruling 4(a)(i)

Item 87: RFA 219, para. 22

Order from General Momcilo Perisic, dated 10 November 1993, concerning creation of the 30th and 40th Personnel Centres for the Bosnian Serb Army (VRS) and the Army of the Republic of Serbian Krajina (VRSK)

The Trial Chamber hereby DISMISSES as moot the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, based on the representations of the Prosecution and Serbia and Montenegro that production was completed on 21 November 2003.

Ruling 4(a)(ii)

Item 99: RFA 219, para. 32

Document from General Momcilo Perisic, dated 28 May 1998, concerning introduction of a state of emergency and the political situation in Kosovo and Metohija

The Trial Chamber hereby DISMISSES as moot and without prejudice the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, based on the representations of Serbia and Montenegro that (1) General Momcilo Perisic has informed Serbia and Montenegro that he possesses a copy of the document and (2) General Momcilo Perisic has been granted by Serbia and Montenegro a waiver to disclose the document to the Prosecution.

Ruling 8(a)

Items 13-16: RFA 118

"Supreme Command" documentation

The Trial Chamber hereby DENIES the Prosecution’s request for binding orders requiring Serbia and Montenegro to locate the Federal Republic of Yugoslavia Presidency Archive for the relevant period and the documents therein, on the basis that Serbia and Montenegro has made sufficient efforts to locate the requested documentation.

Ruling 9(a)

Items 19-23: RFA 119B-D

Documentation relating to the General Staff of the Army of the Federal Republic of Yugoslavia (VJ) and other headquarters and military units pertaining to the state of war declared on 24 March 1999

The Trial Chamber, with respect to the documentation of the General Staff of the Army of the Federal Republic of Yugoslavia (VJ), hereby (1) DISMISSES as moot the Prosecution’s request for a binding order for the production of the requested documentation according to specific modalities, on the basis that the requested documentation is already the subject of (a) a pending Prosecution request for a binding order and (b) the Trial Chamber’s Fifth and Seventh Decisions and confidential "Tenth Decision on Applications Pursuant to Rule 54bis of Prosecution and Serbia and Montenegro", issued 15 October 2003 ("Tenth Decision"); and (2) DIRECTS the Prosecution and Serbia and Montenegro to comply with paragraphs two (2) through five (5) of the Tenth Decision forthwith.

The Trial Chamber, with respect to the documentation of the other headquarters and military units, hereby DENIES the Prosecution’s request for binding orders for production of the requested documentation according to specific modalities, on the bases that the requests are (1) overbroad and unduly onerous and (2) in effect applications for search warrants, but that there are insufficient grounds for the grant of such warrants in the present circumstances.

Ruling 10(a)

Items 128-132: RFA 291,

paras 3-7

Documentation relating to the Guards Brigade of the Yugoslav People’s Army (JNA) during events in Vukovar in 1991

The Trial Chamber hereby DENIES the Prosecution’s request for the Trial Chamber to set a final date by which the outstanding material must be provided, on the basis that Serbia and Montenegro has complied to the best of its ability.

Ruling 11(a)

Items 111-120: RFA 229

Financial documentation

The Trial Chamber hereby ORDERS Serbia and Montenegro to produce to the Prosecution the requested documentation within two (2) months from the date of this Order.

The Trial Chamber hereby ORDERS Serbia and Montenegro, in the event that it is unable to comply with the above Order, to report within two (2) months from the date of this Order the reason(s) for its inability by means of a public, written, and inter partes filing with the Trial Chamber.

Ruling 12(a)(i)

Items 24-42: RFAs 174, 174A

Documentation relating to the Joint-Command for Kosovo and Metohija

The Trial Chamber hereby ORDERS Serbia and Montenegro to (1) continue its efforts to locate the requested documentation and (2) produce to the Prosecution the requested documentation within two (2) months from the date of this Order.

The Trial Chamber hereby ORDERS Serbia and Montenegro, in the event that it is unable to produce to the Prosecution the requested documentation within two (2) months from the date of this Order, to report within two (2) months from the date of this Order the reason(s) for its inability by means of a public, written, and inter partes filing with the Trial Chamber.

Ruling 12(a)(ii)

Items 54-59, 65: RFA 219, para. 4

Military intelligence documentation

The Trial Chamber hereby DENIES the Prosecution’s request for the Trial Chamber to issue binding orders for production, on the basis that Serbia and Montenegro has made sufficient efforts to locate the requested documentation.

Ruling 12(a)(iii)

Items 76-77: RFA 219,

paras 12-13

Novi Sad Corps documentation

The Trial Chamber hereby ORDERS Serbia and Montenegro to (1) continue its efforts to locate the requested documentation and (2) produce to the Prosecution the requested documentation within two (2) months from the date of this Order.

The Trial Chamber hereby ORDERS Serbia and Montenegro, in the event that it is unable to produce to the Prosecution the requested documentation within two (2) months from the date of this Order, to report within two (2) months from the date of this Order the reason(s) for its inability by means of a public, written, and inter partes filing with the Trial Chamber.

Ruling 12(a)(iv)

Item 84: RFA 219, para. 21

Letter, dated 27 October 1995, from Radovan Karadzic to Zoran Lilic concerning the dismissal of generals of the Bosnian Serb Army (VRS)

The Trial Chamber hereby ORDERS Serbia and Montenegro to (1) continue its efforts to locate the requested document and (2) produce to the Prosecution the requested document within two (2) months from the date of this Order.

The Trial Chamber hereby ORDERS Serbia and Montenegro, in the event that it is unable to produce to the Prosecution the requested document within two (2) months from the date of this Order, to report within two (2) months from the date of this Order the reason(s) for its inability by means of a public, written, and inter partes filing with the Trial Chamber.

Ruling 12(a)(v)

Items 88-89: RFA 219, para. 23

Documentation relating to the training of volunteers in special units of the Army of the Federal Republic of Yugoslavia (VJ) in 1995

The Trial Chamber hereby ORDERS Serbia and Montenegro to (1) continue its efforts to locate the requested documentation and (2) produce to the Prosecution the requested documentation within two (2) months from the date of this Order.

The Trial Chamber hereby ORDERS Serbia and Montenegro, in the event that it is unable to produce to the Prosecution the requested documentation within two (2) months from the date of this Order, to report within two (2) months from the date of this Order the reason(s) for its inability by means of a public, written, and inter partes filing with the Trial Chamber.


1 - Rulings 13 and 14 of the Second Decision denied the Prosecution’s requests for binding orders and thus are not relevant to the matter presently before the Trial Chamber.
2 - These documents were identified in Item 9 of the Office of the Prosecutor’s “Priority List of Documents Requested from Serbia and Montenegro for the Case Against Slobodan Milosevic”, which was attached to the “Prosecution Response to the 6 May 2003 Submission by Serbia and Montenegro Regarding Outstanding Requests for Assistance”, filed 20 May 2003.
3 - See, e.g., Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A R108 bis, “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, 29 October 1997, para. 32 (holding that any request for order for production of documents issued under Article 29, para. 2 of Statute of International Tribunal must identify specific documents and not broad categories, set out succinctly reasons why such documents are deemed relevant to trial, not be unduly onerous, and give requested State sufficient time for compliance).
4 - Confidential “Submission of Serbia and Montenegro Pursuant to Paragraph 3 of the Trial Chamber’s ‘Fifth Decision on Applications Pursuant to Rule 54bis of Prosecution and Serbia and Montenegro’ dated 15 September 2003”, filed 09 October 2003 (“Supreme Command Submission”).
5 - See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A R108 bis, “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, 29 October 1997, paras 33-37 (“[T]he International Tribunal is not vested with any enforcement or sanctionary power vis-à-vis States. It is primarily for its parent body, the Security Council, to impose sanctions, if any, against a recalcitrant State, under the conditions provided for in Chapter VII of the United Nations Charter. However, the International Tribunal is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules. It also has the power to report this judicial finding to the Security Council. . . . [A]part from the cases provided for in Rule 7 bis (B), the President of the International Tribunal simply has the role of nuncius, that is to say, he or she shall simply transmit to the Security Council the judicial finding of the relevant Judge or Chamber”.).