Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17526

1 Monday, 10 March 2003

2 [Motion Hearing]

3 [The accused not present]

4 [Open Session]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE MAY: Yes. This is an application by the Prosecution.

7 Perhaps we could have the appearances, please.

8 MR. NICE: I appear today. Maybe one of my colleagues will join

9 me in due course, I'm not sure. But I'm also assisted by Ms. Milenov who

10 has had a great deal to do with the logging and pursuit of these

11 applications on our behalf. And I don't know how I could have overlooked

12 it: And Ms. Dicklich who is our case manager.

13 JUDGE MAY: Yes. The government.

14 MR. DJERIC: Thank you, Your Honours. My name is Vladimir Djeric.

15 I'm Advisor to the Minister for Foreign Affairs of Serbia and Montenegro.

16 With me today are Mr. Sasa Obradovic, who is the Deputy Head of our

17 International Legal Service in the Ministry for Foreign Affairs, and

18 Mr. Panceski, who is the First Secretary of the Embassy of Serbia and

19 Montenegro at The Hague.

20 JUDGE MAY: Thank you. Mr. Nice, we have had your application,

21 your original application of the 13th of December. We have the

22 government's response of the 7th of February. We have your reply, 27th of

23 February, and we have attached to that a useful document, the schedule of

24 pending requests.

25 MR. NICE: That's the colour-coded --

Page 17527

1 JUDGE MAY: The colour-coded document, very easy to follow, and

2 we're grateful for that. So we have the arguments. It may be helpful if

3 there are matters of detail you want to refer us to, and we can also

4 perhaps limit the argument to the really relevant matters, some matters

5 having been closed, as we see.

6 MR. NICE: Your Honour, I'm not sure if you got an update on the

7 schedule, but if you haven't, can I bring you up-to-date by telling you

8 that other matters genuinely are closed.

9 JUDGE MAY: Yes, the 27th of February is the document.

10 MR. NICE: Yes. And on the second sheet, in blue, RFA number 92,

11 that is now closed.

12 JUDGE MAY: Closed.

13 MR. NICE: Yes.

14 JUDGE MAY: Thank you.

15 MR. NICE: Turning over two sheets to item 207A and B,

16 documentation relating to the FRY investigation at Izbica. I don't know

17 if I'm going too fast. I was getting ahead of myself this morning, I

18 think.

19 There is one where there's been a development, as we understand

20 it, to this extent: That the pathologist who has done the work at Izbica

21 is owed a very large sum of money by the government of Serbia and

22 Montenegro, and until she's paid that money, she's not going to hand over

23 many of the documents that relate to that crime scene. And so if that be

24 right, the documents should be in the possession of the government, but by

25 not paying her bill, they find themselves in the position of not being

Page 17528

1 able to answer our proper request. And the Chamber will see the clear

2 significance of material in relation to Izbica for the Kosovo indictment.

3 The next page, or continuation of the same page of the last part

4 of this, I'm not sure which, but at number 249, we, I think, record that

5 some documentation has been received and there's a balance outstanding.

6 There is some uncertainty. We have not been able to resolve that

7 uncertainty by today. It may be that we have received the outstanding

8 material and, therefore, we must suspend our position in relation to that

9 one. And the same problem arises, of uncertainty, in relation to 279,

10 over the page, request for Republic of Serbia Assembly documentation. We

11 may have received this material pursuant to different numbered RFAs,

12 numbers 311 and 203. And so, obviously, we should suspend our position in

13 relation to that.

14 JUDGE MAY: Yes.

15 MR. NICE: Your Honour, if you are inviting me or allowing me to

16 make a short opening statement to clarify the issues, I really say very

17 little but the following: This application, of course, relates to

18 specific documents but has been used by the government authorities as a

19 way of raising for the first time the issue of access to archives, and

20 you'll find, I think it's in paragraph 9 of their document - I'll just

21 check that - they say, I think, "As a sign of goodwill and despite its

22 general position vis-a-vis the right of access to archives, it's proposed

23 that expert meetings be held to discuss modalities."

24 Well, applications for access to and documents from archives have

25 been being made for whatever it is, a year or 18 months, before that

Page 17529

1 response was filed. And although there may from time to time have been

2 requests for more specificity, it had never been suggested that in some

3 way archives were off limits, and that would be an astonishing proposition

4 to make, for the Chamber may think that cooperation of the type required

5 of states really falls into three potential levels.

6 At the top you could have - and there is absolutely no reason why

7 you should not have - states actively searching their archives and

8 documents to find the materials that they would know better than we ever

9 could would assist this Chamber in bringing these proceedings to a proper,

10 secure, and well-informed conclusion. And indeed if it be the case, as we

11 have reason to believe it may be, that the documentary archives exist in

12 various places and are certainly complete in relation to some if not all

13 of these three indictments, the Chamber may well ask itself just how short

14 these proceedings could have been if a proactive - to use a word I don't

15 particularly like but nevertheless has a meaning - had taken a proactive

16 stance in relation to this trial and had searched its materials to find

17 what would have dealt with the issues in this case. Well, we must bear in

18 mind that cooperation does not mean that.

19 The next level of cooperation which has been manifested in

20 relation to archives by Croatia, the Federation, and the RS, is to permit

21 access to archives for survey purposes and thereafter for specific request

22 purposes which make the doing of the job of the OTP that much easier and

23 more certain of safe, secure, reliable, well-founded success. And success

24 is judged by getting the right answer, not just by getting some answer.

25 Now, it happened that the government represented here today did,

Page 17530

1 for a time, allow that to happen. Over a year or so ago in relation to, I

2 think, the archives of the Ministry of Justice. And so when they say

3 there's a rule against it, it's a rule that either they've forgotten,

4 overlooked or is only of recent creation. But what we know is that this

5 government and in relation to this case is not adopting the attitude that

6 other parts of the former Yugoslavia have adopted. It was slow coming

7 sometimes. Your Honour in particular will remember the position of the

8 authorities in the Bosnian Croat cases and the timing of the opening of

9 their archives brought problems but eventually it came. Well, that's not

10 the level of cooperation we're getting here.

11 The level of cooperation we're getting here is this: If we can

12 identify a document with sufficient clarity that its existence is not or

13 cannot be denied, and if we persist in the application, we get them, or we

14 may get them. But this has to be said when it's being asserted by the

15 government, not just in this court, that they have been cooperative, there

16 is a great deal of a difference between quality and quantity. And it may

17 not harm the government concerned to provide a quantity of materials if

18 they actually retain the documents that are of particular significance.

19 If Your Honour will be good enough to go in the colour-coded

20 document to one example and then I'll provide you with another document,

21 to look at 219, which is to be found, I think, about the third, fourth

22 sheet. This is now the 25th of June outstanding. A hundred and twenty

23 documents, all narrowly focused relating to the testimony of a protected

24 witness, as he then was, the witness in respect of whom there is the

25 outstanding problem over the provision of a waiver that will enable him to

Page 17531

1 come here. You'll see the limited response that we got. Some documents

2 received on the 8th and 30th of August. Cannot provide four, 90 pending.

3 Now, we do not accept that there is not a connection, a connection

4 reflecting, I'm afraid, a determination to keep us from presenting these

5 materials in the attitude towards this particular request.

6 JUDGE MAY: Yes.

7 MR. NICE: And that --

8 JUDGE MAY: There's a statement -- let me interrupt you on this

9 point.

10 MR. NICE: Yes, of course.

11 JUDGE MAY: There's statement here that some of the documentation

12 was destroyed in the bombing.

13 MR. NICE: I think if I'm right, the statement is somewhat more

14 circumspect than that, and I think it says "may have been." The Chamber

15 may -- I'm not sure if you've had evidence of this, but there were in

16 place at the time of the NATO bombing, regulations on the storage and I

17 think duplication of materials to avoid their loss in times of trouble or

18 war, and there is absolutely no reason to believe other than that these

19 documents, most of them, would have been -- and you're quite right, there

20 is a statement -- a letter dated the 30th, received on the 31st of

21 January, coming from the Deputy Minister Nenad Milic, speaking of Kosovo,

22 and VJ documents and other, saying that they do not have the requested

23 documents. But again, that doesn't reflect the existence of copies. And

24 we do not accept that these documents would have existed in a single copy

25 and that all those, if any have been, would have been the subject of

Page 17532

1 destruction in the NATO bombing.

2 Your Honour --

3 JUDGE ROBINSON: Mr. Nice when, it says in the column that the FRY

4 government has stated that it cannot provide four documents, what does

5 that mean, that it is not able to or it is not obliged to or --

6 MR. NICE: It may be that Mr. Djeric will be able in due course to

7 help us further with that. I'll look up the terminology as it came to us.

8 But I should also say this at this stage, because I think it's important.

9 And if Mr. Djeric wishes us to go into closed session, I shall quite

10 understand.

11 There has been given at one or other stages of negotiations

12 another reason why documentation may not be produced, and that reason has

13 also, I think, been given or obliquely referred to at times when it's been

14 suggested to me that I should be prepared to put my name to an application

15 for blanket closed-session testimony for documentation, which I'm plainly

16 not prepared to do. Not only am I not prepared to do it, it would be

17 pretty useless if I did that. I can imagine the response of the Chamber

18 if I said we want to put all this documentation in for some category

19 reason closed session. The Chamber would very smartly tell me that it was

20 nothing to do with that, and we could make an application and if it was

21 individually supportable document-by-document you might review it.

22 There's been another underlying reason for the authorities'

23 concern about the publicity that will be given to this documentation. As

24 I say, if Mr. Djeric, who will inevitably know what I'm referring to,

25 would prefer me to mention this in closed session, I will. Otherwise,

Page 17533

1 I'll mention it in open session.

2 JUDGE MAY: Mr. Djeric, if you follow the point, would you wish us

3 to go into -- it to be a private session, in fact?

4 MR. DJERIC: Perhaps I don't know, Your Honour, whether it would

5 be appropriate that we give some general comments first, because the

6 Prosecution filed its reply in which it raised certain new points, and of

7 course we will be happy to answer specific points in relation to --

8 JUDGE MAY: Let us, from an abundance of caution, let us go into

9 private session since we don't know what the point is. We'll go into

10 private session briefly

11 [Private session]

12 [redacted]

13 [redacted]

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15 [redacted]

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17 [redacted]

18 [redacted]

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21 [redacted]

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25 [redacted]

Page 17534

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3 [redacted]

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6 [redacted]

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8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [Open session]

15 THE REGISTRAR: We're in open session.

16 MR. NICE: Your Honour, this colour-coded document, which I've now

17 been able to update a little bit, of course deals with requests each of

18 which cover many documents. It seems to me it might be helpful for you to

19 have just a snapshot of, say, the first roughly 150 documents. Not rough,

20 the first. The most important, the most valuable 150 documents. We have

21 prepared a little list that are extracted from these. May I just make

22 that available to you.

23 JUDGE MAY: Yes. What would be helpful from my point of view

24 would be a list of what's outstanding. No need to produce it now. I can

25 work it out from your code, which gives it to us, but what I would like to

Page 17535

1 hear about is what is outstanding now and what is the most valuable. It

2 may be that this is it.

3 MR. NICE: This is one way of dealing with it, yes. If you'd be

4 good enough, please, then to look at this, which is priority list. And

5 I'm not going to ask you to go through, I think it's 162 documents, but I

6 can ask you to have a look at a few of them. 162, yes. Just to see both

7 the age of the request and the obvious significance of the document.

8 You can see, of course, on sheet 1 that these requests go back to

9 April of 2001. If you'd be good to turn to page 2, item 8 at the top of

10 the page, requested in August 2001, re-requested under the most -- perhaps

11 the most significant RFA, number 219, the one I've just referred to before

12 we went into closed session, Supreme Defence Council minutes of meetings

13 from the 27th of April of 1992 to the 5th of October, 2000. Interestingly

14 enough, we've been provided with a few from 1992 and 1998, but nothing

15 from that intervening period. Number 9 is the same topic but this time

16 stenographic notes.

17 Another example, number 15. The Chamber will recall the limited

18 amount of written material, printed material, so far available to it in

19 respect to the Supreme Command for Kosovo. Requested on the 15th of

20 August, an inadequate response received on the 26th of December, 2002,

21 pending for over a year since then.

22 If we turn over the page to number 19, that appears to be a

23 request dated the 16th of October of 2002. In fact, that was itself a

24 follow-up to a request made on the 15th of August, 2001. Significance,

25 absolutely obvious: Commands, orders, directives, instructions and orders

Page 17536

1 for security of combat operations for other activities, plans,

2 notifications, reports.

3 Right. I must slow down.

4 JUDGE ROBINSON: Mr. Nice, if you'd just go back to 15.

5 MR. NICE: Of course.

6 JUDGE ROBINSON: The inadequate response to the request.

7 MR. NICE: I'll dig out the response for you.

8 JUDGE ROBINSON: Yes. Just let me know in what way was it

9 inadequate.

10 MR. NICE: But I'm on -- the response that we assert was

11 inadequate said this: "In order to acquire the requested information,

12 this ministry addressed the Yugoslav Army General Staff Commission for

13 Cooperation at The Hague Tribunal which notified us by a note dated the

14 2nd of October, 2002, that the requested documentation was not under the

15 jurisdiction of the Federal Ministry of Defence and the Yugoslav army.

16 This ministry then turned to the military cabinet of the FRY president,

17 which by a note of the 21st of October informed us that the military

18 cabinet and other offices of the FRY president didn't possess documents

19 related to the Supreme Command, nor are provisions on the Supreme Command

20 to be found in the constitution, law of defence, or law of the Yugoslav

21 army."

22 Now, we know that to be incorrect. We have since then had

23 possession of some Supreme Command documents which I think have been

24 provided I think through -- one or two through Vasiljevic and possibly

25 one, I think -- one or more through Rade Markovic. But this is a small

Page 17537

1 tip of the iceberg. The documents exist, and this is rather like the game

2 of Cups or whatever they call it in America. This one doesn't have it,

3 that one doesn't have it, and they don't exist. It's a question of

4 finding where they are. And we say that's an inadequate response. And

5 it's a very important piece of information, because as the Chamber will

6 well understand in Kosovo, central to determination of that part of this

7 case is how the operations were conducted and who was ultimately giving

8 the orders and when plans were formed. The Supreme Command will provide

9 us the answer to that, we believe.

10 JUDGE MAY: These -- so I have the position, these 150 documents

11 are outstanding today.

12 MR. NICE: Oh, yes.

13 JUDGE MAY: Thank you.

14 MR. NICE: And this is only, as it were, the best 150 or, viewed

15 from another perspective, maybe the worst.

16 And I was at number 19, reviewing why its relevance for the Kosovo

17 part of the indictment was so obvious. I think I've really dealt with it.

18 The last three lines. I've dealt with it. One can see its absolute

19 essential relevance to the case.

20 Another perhaps relevant document, just again to select one, would

21 be number 27, a specific request for orders and instructions issued by the

22 Joint Command for Kosovo between the 1st of November 1998 and the 19th of

23 June 1999, to which we received a response in July of last year stating

24 that these documents may have been housed in a building that was destroyed

25 by NATO. That's where the word "may" appears, a response that we,

Page 17538

1 respectfully, find insufficient.

2 If the Chamber would then turn over to sheet 5. We're now in an

3 extensive request, 174A, which is itself a repeat or a refinement of 174,

4 which is issued in April 2002. So the immediate 174A of October 2002.

5 Correspondence between the Joint Command and the MUP staff for Kosovo, the

6 Joint Command and the 3rd Army, the Joint Command and the Pristina Corps.

7 The inadequate response I'll just read to you.

8 The response is as follows: "The Joint Command for Kosovo and

9 Metohija was formed on the order of the president in June 1998 without any

10 specific document. The command operated until October of that year,

11 following which unofficial meetings were held where the current security

12 situation was analysed. According to the military organs' knowledge, the

13 documents from the joint command for Kosovo and Metohija related to

14 military issues were delivered to the incumbent chief of the cabinet of

15 the Federal Republic of Yugoslavia's president on termination of its work

16 late in 1998. The buildings where these documents may have been housed

17 were demolished and destroyed during NATO aggression."

18 JUDGE ROBINSON: You don't question that one, Mr. Nice, because it

19 states definitively that the building was destroyed, but you question when

20 it says the documents may have been housed in a building that was

21 destroyed.

22 MR. NICE: Absolutely. We question it on that basis. And, Your

23 Honour, it's well for us all to remember this is a former communist state,

24 as people have explained to us, where documentation and recording of

25 things was an absolute routine. We do not accept that important documents

Page 17539

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13 English transcripts.

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Page 17540

1 of this kind existed in one copy only and were then stored in one copy

2 only. We say that is just unrealistic.

3 Oh, yes. I'm grateful to Ms. Milenov because I see I signed the

4 document, so I made the request. We requested of them detail of this "may

5 have been housed" assertion, and I think got nothing. Got this much --

6 got nothing, I'm afraid. Just an acknowledgement of the letter.

7 But, Your Honour, this is all, in a sense, if we go on from where

8 we are on page 5, to go to page 6 and to items 48 and 49. We now come to

9 request for assistance number 219. And of course the colour-coded

10 document doesn't necessarily reflect the quantity of materials or the

11 weight of significance of materials underlying any particular request for

12 assistance.

13 48 was a request in May of 2002 followed up on September for

14 minutes of the session of the council for coordination of positions on

15 state policy. And then 219, number 49, picks up with a request for

16 stenographic recordings of these meetings, it being our understanding that

17 such stenographic recordings were made. And you'll now see, over the next

18 four sheets, documents for 219, and I just pick up four of them, I think,

19 or five of them.

20 51, at the bottom of the page, training of volunteers from outside

21 Serbia by special units of the VJ. Over the page. Reports on the

22 cooperation of the Serbian RDB and the VJ in Eastern Slavonia. That's

23 number 52.

24 Number 55, report of the 26th of November 1995 on an award

25 ceremony for members of a unit of anti-terrorist action. These are all

Page 17541

1 quite specific documents, so that even at the low level of cooperation

2 that we say is all that's reflected by the government's approach, there's

3 all the specificity there that's wanted.

4 At the foot, 58, VJ KOS reports on the work of the JSA of 1996.

5 Over the page to page 8, number 62, reports on meetings of Bosnian

6 SDS to discuss conflicts between Karadzic and Mladic, and so on.

7 And, Your Honour, we could go on, but I think that I've taken some

8 time. There are many -- well, 219 just goes on and on. And these

9 specific documents -- for example, look at number 87. An order from

10 Perisic dated the 10th of November, 1993 - fully identified - concerning

11 the creation of the 30th and 40th personnel centres, the significance of

12 which will not be lost on Your Honours, I have no doubt. Or documents

13 further up the page, 76 and 77, which would deal with the accused's direct

14 control of the VS.

15 Over the page to page 11, number 88. Still in the same request

16 for assistance, 219. A letter of the 29th of September, 1995, from

17 Colonel Sinisa Perisic, addressed to the military cabinet of the president

18 of the FRY concerning training of volunteers. Or the next document, 89,

19 response of the military cabinet of the president of the FRY to that

20 letter.

21 Your Honour, we would invite this Chamber to exercise its powers,

22 and it's not just 54(A), it's 54 and all its other powers, and in

23 recognition of the real burden that is on the Chamber, that is on the

24 Office of the Prosecutor to get this case dealt with securely and within a

25 reasonable time, to order the production of these documents. And if I may

Page 17542

1 put it in the vernacular, to have nothing to do with this assertion that

2 in some way archives are off limits. They weren't off limits for Croatia,

3 they weren't off limits for the Federation, they weren't off limits for

4 the RS, and they weren't off limits for this government until they

5 received our application, and they suddenly said that they were.

6 We can't do our job and we can't discharge our duty to the

7 international community without documents. Well, we can; it just takes a

8 lot longer and is a lot harder.

9 JUDGE MAY: You're asking us, therefore, to make an order, are

10 you, today, compelling --

11 MR. NICE: Well, when you've reflected on it.

12 JUDGE MAY: Well, whenever. But that's what you're asking us to

13 do, compelling the production of the documents.

14 MR. NICE: Absolutely.

15 JUDGE MAY: And what about the answer "may have been destroyed in

16 the NATO bombing" or "destroyed in NATO bombing"? What do we do about

17 that?

18 MR. NICE: They haven't made that answer yet. It's always been

19 surrounded by a "may have" and it says nothing of copies. And this is a

20 government that knows it has to cooperate and that should be held to

21 account. And in our submission, if they choose to say at any stage

22 absolutely every copy of a document has been destroyed, that may be one

23 thing. They haven't said it yet.

24 JUDGE ROBINSON: They have -- on one occasion they did say that

25 the building was destroyed.

Page 17543

1 MR. NICE: The building was destroyed.

2 JUDGE ROBINSON: In which documents --

3 MR. NICE: May have been kept.

4 JUDGE ROBINSON: That may have been kept or were in fact kept?

5 MR. NICE: May have been.

6 JUDGE ROBINSON: Because I think you want to be careful, Mr. Nice,

7 about questioning the bona fides of a government, you know.

8 MR. NICE: Simply reading the material as it comes to me very

9 cautiously, and aware of the existence of copies. But I'll just look up

10 that one and come back to it to make that Your Honour is right in that

11 characterisation of the answer.

12 [Trial Chamber confers]

13 MR. NICE: Your Honour, can I just --

14 JUDGE MAY: Sorry. There's a point we want clarified because it's

15 not clear to the members of the Trial Chamber.

16 Are you asking for access to the archives in the sense of going to

17 the archives and carrying out your own searches, or are you asking for the

18 archives to be handed over to you completely or what?

19 MR. NICE: We're certainly not asking for the archives to be

20 handed over. We are asking to be provided with access to the archives

21 sufficient for us to do our work which involves, of course, a staged level

22 of access in exactly the same way as it operated -- or very similar to the

23 way it operated with the other entities, namely, access to the indices,

24 survey of the archive first and then have access to the documents when

25 you've had that approach. Sensible way to deal with it. We certainly

Page 17544

1 don't want the archives handed over, no.

2 And, Your Honour, I am reminded that it's perhaps worth my reading

3 to you what we said in terms in relation to the destroyed archive and to

4 which we received no response.

5 "Further to your --" this is what I said in a letter of the --

6 I've forgotten the date. Thanks very much. 17th of October last year.

7 "Further to your response of the 12th of July in which you state

8 that the buildings in which the 1998 Joint Command documents may have been

9 housed were destroyed by NATO, we would like to know the names of the

10 archives, the names of the custodians responsible for the archives and

11 documents, where those documents were located, the addresses for Joint

12 Command documents --" sorry, "the addressees for Joint Command documents,

13 more precise details on how and when the facility containing the documents

14 was destroyed, log entries or other documentation showing the transfer of

15 the 1998 Joint Command documents, and why you introduced uncertainty into

16 the destruction of the documents by using the term 'may' as in 'may have

17 been housed' in referring to the building that was bombed by NATO."

18 And no response to that.

19 Thank you.

20 JUDGE MAY: Yes, Mr. Djeric.

21 MR. DJERIC: Thank you, Your Honour. Okay, there is a lot of

22 material to cover here today. Mr. Nice had about 40 minutes.

23 Let me just begin with the -- with stressing at the outset that

24 the government of Serbia and Montenegro is committed to meet fully its

25 obligation under the Statute and to provide all the assistance needed to

Page 17545

1 the International Tribunal. There is a strong political will of the

2 authorities in Serbia and Montenegro to cooperate, and it is this will

3 that has crushed the indolence of bureaucracy and resistance from various

4 quarters in order to effect the cooperation. And the will to cooperate is

5 evident from the information about cooperation that we submitted to the

6 Chamber in our written response.

7 What is also evident is that requests for assistance arrive daily

8 and that cooperation is a process and that these requests for assistance

9 are quite big and contain, in fact, requests for assistance for hundreds

10 of documents.

11 We are glad that we have maintained this level of cooperation

12 despite significant changes in the structure of our state due to the

13 establishment of the state union of Serbia and Montenegro. However, the

14 present application of the Prosecution seeks to obtain something which we

15 feel the Prosecution does not have under the Statute and Rules of this

16 Court, and that is an unlimited right to access and survey state archives

17 in Serbia and Montenegro. Therefore, we are glad to come before the Trial

18 Chamber in order to have a legal determination about the extent of our

19 obligation under -- obligations under the Statute, because it is the Court

20 that should pronounce on this issue and not the Prosecution. And we are,

21 of course, going to fully comply with the Court decisions.

22 Your Honours, I would like now to address some of the contentions

23 made by the Prosecution in their reply, if I may, and then I will turn to

24 specific requests for assistance.

25 Your Honours must have been puzzled, as we all are, by

Page 17546

1 Prosecution's submissions in the reply. It is not really clear what the

2 Prosecution want in its final submissions. First, in paragraph 17 of the

3 reply, and that is at the very end of the reply, the Prosecution, pursuant

4 to Rule 54 bis, requests to have, and I'm quoting: "... a hearing with

5 officials of Serbia and Montenegro to discuss the lack of Serbian and

6 Montenegrin official cooperation."

7 At the time the reply was filed, today's hearing had been long

8 scheduled. The question then is: Does the Prosecution request one more

9 hearing in addition to the present one?

10 And furthermore, Rule 54 bis does not envisage a hearing to

11 discuss the lack of cooperation. What Rule 54 bis envisages is a hearing

12 about the application for an order to produce identifiable documents.

13 Secondly, in the same paragraph 17 of the reply, the Prosecution

14 requests, pursuant to Rules 39 and 54, that the Trial Chamber order Serbia

15 and Montenegro, and I'm quoting now, "to comply with the RFAs described in

16 the attached annex."

17 The question here is again: What does the Prosecution really

18 want? Are we in a proceeding under Rule 54 bis, or are we in a proceeding

19 under Rules 39 and 54?

20 Another question is whether this submission of the Prosecution is

21 appropriate at this late stage of the present proceedings, considering

22 that the application filed on 13 December 2000 did not rely at all on Rule

23 39. Two and a half months after the application, the Prosecution decided

24 that it wished to rely on Rule 39. We respectfully submit to the Trial

25 Chamber that it should refuse to consider the reply in this part.

Page 17547

1 Your Honours, notwithstanding our position that the Chamber should

2 refuse to consider Rule 39 in these proceedings, I would still like to

3 respond to the arguments in the Prosecution's reply about the

4 applicability of this provision.

5 The provision of documents by states, as is well known, is

6 governed by Rule 54 bis. Therefore, Rule 39 does not apply in this field.

7 As far as Rule 54 is concerned, it provides for a general power of

8 a Judge or a Trial Chamber to conduct the proceedings or conduct the

9 investigation.

10 With regard to the production of documents by states, this general

11 power has been regulated in detail and exhaustively by Rule 54 bis. And

12 this is appropriate considering the specificity of cooperation involving

13 sovereign states and their interests.

14 Furthermore, how could an implied power of the Chamber to issue

15 search warrants under Rules 39 and 54 override the explicit and carefully

16 formulated power to order production of documents under Rule 54 bis? As

17 is well known, Rule 54 bis was a consequence of the Appeals Chamber

18 decision in Blaskic in 1997, and it is true that before the adoption of

19 Rule 54 bis, orders under Rule 54 were used to facilitate cooperation by

20 states in production of documents. But even then, the Appeals Chamber

21 carefully developed the requirements for such a cooperation and for such

22 orders, and the said requirements were subsequently incorporated in Rule

23 54 bis.

24 Therefore, we submit that first it had been the intention of the

25 International Tribunal to exclusively and exhaustively regulate

Page 17548

1 cooperation of states with regard to documents by Rule 54 bis as lex

2 specialis. As was said in an order of the Trial Chamber in Kordic and

3 Cerkez, dated 4th August, 2000, and I'm quoting: "Requests for order

4 under Rule 54 of the Rules for states to produce documents and information

5 are now -" and I repeat now - "governed by Rule 54 bis of the Rules." End

6 of quote. That's the order for the production of documents by the

7 European Community.

8 Similarly, the Scheduling Order in the present case said, and I'm

9 quoting: "Applications for orders directed to states are governed by Rule

10 54 bis." End of quote.

11 Second point: Even if Rule 54 had been directly applicable in

12 this field, this could have been possible only if orders issued would

13 follow the requirements set by the Appeals Chamber in Blaskic, and this in

14 turn would mean that the Prosecution would in fact have to comply with the

15 same requirements as in Rule 54 bis. And as we demonstrated in our

16 written response, the requests for access to archives fall outside the

17 scope of Rule 54 bis, or in the alternative, they manifestly fail to meet

18 its requirements as well as the requirements set by the Blaskic judgement.

19 In addition, if Rule 39 would apply with respect to states'

20 cooperation in respect to production of documents, this would effectively

21 annul Rule 54, this, and would render it meaningless. First, the

22 Prosecution could circumvent the requirements set in paragraph (A) of Rule

23 54 bis, especially as regards the specificity of the documents requested.

24 Second, if production of documents by states were to be governed

25 by Rule 39, the carefully tailored procedure for the protection of state

Page 17549

1 interests in Rule 54 bis would be rendered meaningless.

2 JUDGE ROBINSON: Could I ask you to just go back to the point that

3 you made that the requests for access to archives fall outside the scope

4 of Rule 54 bis. Could you elaborate on that for me.

5 MR. DJERIC: Yes, Your Honour.

6 JUDGE ROBINSON: Explain exactly why you take that position.

7 MR. DJERIC: We have elaborated in part in our written response.

8 Our basic position is that access and survey of state archives, as

9 requested by the Prosecution, is actually a physical access to archives,

10 and Rule 54 bis is only regulating production of documents by states. The

11 states are supposed to produce documents and not to allow physical access

12 by the Prosecution to the archives.

13 That's -- that's the first point. And as is well known, it is

14 primarily on states to effect the cooperation. That was said in the

15 Blaskic appeal decision. And only in very exceptional circumstances and

16 in relation to on-site investigations and not to the access to certain

17 documentation that the Prosecution could act independently of state

18 organs. And we submit that we do not have such an exceptional situation.

19 I believe that this exceptional situation was related in the Blaskic

20 appeals decision to the cases when the authorities concerned were involved

21 in the -- in committing the crimes or were preventing the cooperation, and

22 we feel that, since October 2000, we have a clear difference between -- in

23 the policy of the government with this significant change of October 2000.

24 JUDGE ROBINSON: Yes. So they could get access but not by Rule

25 54.

Page 17550

1 MR. DJERIC: Sorry?

2 JUDGE ROBINSON: If they could get access to the archives, it

3 cannot be by Rule 54 bis.

4 MR. DJERIC: They cannot. We submit that there is no right to

5 access generally under the Statute, to access to archives except in very

6 exceptional situations. But under Rule 54 bis --

7 JUDGE ROBINSON: Suppose they were to ask for a search warrant.

8 MR. DJERIC: That's the point that I was just about to make. We

9 think that Rule 54 bis is lex specialis and that it exhaustively regulates

10 this field and the search warrant cannot be, under Rule 39, directed

11 against the state archives because it would definitely mean that one state

12 authority searching another state authority, which is highly paradoxical

13 in a way.

14 JUDGE ROBINSON: Yes, please continue.

15 MR. DJERIC: Thank you. So as I said, Rule 54 bis exhaustively

16 regulates this area. And contrary to what the Prosecution contends in its

17 reply with regard to the production of documents by states, the Rules are

18 neither vague nor provide only examples of actions that may be taken.

19 True, the Rules have been subject to frequent amendments, but this

20 does not take away their legal force and the clarity, clarity of Rule 54

21 bis. And as the Rules now stand, we submit the Prosecution must fulfill

22 the requirements set forth in 54 bis. And we think that in relation to

23 general access to archives, and that is the requests which are, I believe,

24 in Part I of the annex to the application in these proceedings, so in

25 relation to these requests for assistance, the Prosecution cannot possibly

Page 17551

1 meet the requirements of Rule 54 bis.

2 Now, I will now go to a point that was made in the reply but also

3 by Mr. Nice today as illustration of the alleged authority to have access

4 and to survey state archives. The Prosecution invokes example from Bosnia

5 and Herzegovina, and today Croatia was mentioned. But this is done

6 without much detail and without crucial information about these searches,

7 such as who conducted the search, what was its scope, and pursuant to what

8 kind of authority, whether an order or a search warrant, if any, these

9 searches were conducted. So we are not in a position to comment these

10 examples, but we would like to make two general observations.

11 First, these examples concern only one state, Bosnia-Herzegovina,

12 and no other state either in the former Yugoslavia or elsewhere.

13 Second, this state, Bosnia-Herzegovina, has a unique

14 constitutional structure under the Dayton-Paris peace accords, and there a

15 large civil and military presence, international presence, has quite

16 significant legislative, law enforcement, and executive powers. However,

17 the Chamber will recall that the Chamber in the Simic case on 18 October

18 2000 issued an order to the SFOR in Bosnia-Herzegovina to produce

19 documents pursuant to Rule 54 bis and not pursuant to Rule 39 and 54.

20 And in conclusion, we respectfully submit that the Prosecution's

21 contention that Rule 39 is applicable should be rejected. We also submit

22 that the Prosecution cannot meet the requirements contained in Rule 54

23 bis.

24 Now I will go to the requests for assistance contained in the

25 application, if the Chamber allows. And I'm not going to repeat what we

Page 17552

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2

3

4

5

6

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8

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10

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13 English transcripts.

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15

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24

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Page 17553

1 already said in our response. I would like to summarise and then, if

2 there are specific questions, then we could turn to Mr. Obradovic who will

3 have specific information about them.

4 I have already said in response to your question, Your Honours,

5 with regard to access to archives, the application is outside Rule 54 bis,

6 or in the alternative, manifestly fails to meet the requirements set forth

7 therein. The Prosecution now contends, and today as well, and I'm

8 quoting: "The OTP has never demanded general access to archives but has

9 sought to survey archives in order to establish what document, if any, may

10 be pertinent to Tribunal proceedings." That's in the reply, paragraph 3.

11 Honestly, Your Honours, we fail to see any difference. The quote,

12 the sentence is a description of what the Judges of this Tribunal have

13 rightfully called a fishing expedition. What the Prosecution wants is to

14 survey the archives. What is it other but access, physical access? Then

15 the Prosecution wants to establish what documents may be pertinent to

16 Tribunal proceedings. What is it else than access to all documents

17 contained in a particular archive? And that's nothing else but fishing

18 for documents. And we respectfully submit that the Chamber should refuse

19 to entertain such a request.

20 Now with regard to 32 requests for assistance contained in Annex

21 II to the application. We have demonstrated in our written response that

22 the great majority of these requests have been responded to. However, we

23 think that five of them can be subsumed under general access to archives

24 as well or, in the alternative, could be -- should be regarded as too

25 general. And I'm going to go, in a moment, into detail of these five

Page 17554

1 requests.

2 For the remaining requests, the current situation, according to

3 our data is as follows: We responded to 18, partially have been -- I'm

4 sorry. Six have been partially responded, and only five are still in

5 process and have received no response at all.

6 As the Appeals Chamber said in the Blaskic case, the Tribunal

7 should reserve its mandatory powers only as a matter of last resort, to

8 cases when this is really necessary. We submit that the application is

9 premature and not necessary. Of course, should the Chamber see fit, we

10 could go request by request.

11 At the very end, Your Honours, I would like to say that we

12 respectfully submit that the application should be rejected, but I would

13 also like to reiterate the willingness of Serbia and Montenegro to

14 cooperate with the International Tribunal not only as a matter of

15 international legal obligation that we have but also as a matter of moral

16 obligation, compelling us all to search for the truth and to bring to

17 justice those responsible for horrible crimes committed on the territory

18 of former Yugoslavia.

19 And now if I may, I could go --

20 JUDGE ROBINSON: Just a second. Why would you say the application

21 is premature when in some cases the requests have been pending for over a

22 year?

23 MR. DJERIC: Your Honour, we have to see exactly which requests

24 are these. Some of the requests that have been pending for quite long,

25 admittedly, are requests for general access to archives, requests that we

Page 17555

1 feel are general access to archives. Some requests are really huge, such

2 as request 219, and the period of time of, I believe, eight months since

3 the -- the request number 219 was transmitted to us has allowed us to

4 respond to certain --

5 JUDGE ROBINSON: I'm sorry. Just hold on a second.

6 [Trial Chamber confers]

7 JUDGE ROBINSON: I wanted to find out if you have this document

8 that we have, the priority list of documents requested. It's a document

9 from the Prosecutor.

10 MR. DJERIC: Yes.

11 JUDGE ROBINSON: I consider it important for you to identify in

12 this list those requests that relate to archives so that we can separate

13 those from the others.

14 MR. DJERIC: Sure. Okay. We have first the requests that are

15 straightforward requests for access to archives. Do you wish me to also

16 identify these?

17 JUDGE ROBINSON: Yes. Are you reading from a document that you

18 now have or --

19 MR. DJERIC: I'm just trying now to get -- get it in order. Just

20 a second. I'm sorry. Just a second. Okay.

21 Now, I don't think that what we regard as plain access to archives

22 requests are really here, but I will for the record just repeat. These

23 are requests number 76, and 95, and 106. And they are --

24 JUDGE ROBINSON: 76, 95, and --?

25 MR. DJERIC: And 106. They're not on the priority list submitted

Page 17556

1 by the Prosecution today, but they are part 1 of the Annex to the original

2 application submitted by the Prosecution.

3 Now, going to the requests that we feel are actually nothing else

4 but requests for general access to archives or, in the alternative, are

5 way too general, the first would be request number 110, which is number 7

6 in your -- in your table.

7 JUDGE ROBINSON: This is archival.

8 MR. DJERIC: Yes, we consider it.

9 JUDGE ROBINSON: Yes.

10 MR. DJERIC: And I will quote the relevant part of the request so

11 the Chamber would immediately know what its content is. I'm quoting:

12 "Copies of all orders issued by Colonel General Nebojsa Pavkovic or those

13 orders issued on his behalf by the staff of the 3rd Army concerning the

14 engagement or use of the VJ, Yugoslav army, and Serbian police forces in

15 combat operation during the 1999 conflict in Kosovo."

16 First point here, if I may explain.

17 JUDGE ROBINSON: Yes. Yes.

18 MR. DJERIC: You want me to go request by request. So first point

19 is this: We feel that this request is over-broad, because it relates not

20 only to actions related to civilians and combatants on the ground that

21 might have involved violations of humanitarian law but also relates to

22 orders concerning all actions of Yugoslav forces, including those related

23 to NATO during the bombing. That time was the time of the NATO

24 intervention and bombing of the Federal Republic of Yugoslavia, and this

25 request would actually mean that we will have to hand over all the orders

Page 17557

1 related to that -- to that conflict and not all the orders related to the

2 actual actions on the ground which might have involved violations of

3 international law.

4 So the content and subject matter of the documents requested must

5 be in some ways indicated here. And furthermore, this requires -- request

6 involves hundreds of documents. So it's too burdensome without further

7 specification, of course.

8 If I may go further. The request number 117, which is in your

9 table at point 10 to 12. Page 2, points 10 to 12. This request is a

10 clear example of a general over-broad request. It relates to a period of

11 almost ten years; from April 1992 to 5th October 2000. Not only that, it

12 relates to the documentation of the Supreme Defence Council, which is the

13 Commander-in-Chief of the Yugoslav armed forces. And the request

14 includes, I'm quoting: "Laws, conclusions, decisions, orders, reports,

15 other communications, minutes, stenographic notes of minutes of meetings,"

16 all that for a period of almost ten years. So it's way too over-broad, in

17 our view, and it is actually a request for the archive of the Supreme

18 Defence Council, nothing else. Or at least 90 per cent of this -- of this

19 archive. So it's too broad in terms of its subject matter, in terms of

20 time period, and in terms of events and places it covers, because it's not

21 focused on the -- neither on the possible violations of the laws of war.

22 It's not focused neither on events that are mentioned in the indictment,

23 events in Kosovo, Bosnia and Herzegovina, and Croatia.

24 JUDGE ROBINSON: So you're saying, firstly, it is essentially a

25 request for archival material.

Page 17558

1 MR. DJERIC: Yes, exactly.

2 JUDGE ROBINSON: Which, in your submission, does not fall under

3 54.

4 MR. DJERIC: 54 bis, yes.

5 JUDGE ROBINSON: And even if it did fall under 54, you contend

6 that it is -- it is too general.

7 MR. DJERIC: Yes. It is too general, and it will be too

8 burdensome. So it will not meet the two requirements of Rule 54 bis,

9 paragraph (A).

10 Now, of course, as I said, these documents involve matters

11 completely unrelated to the proceedings. And another point is that the

12 burden of this request is not only related to a number of documents but

13 must also be seen in relation to the sensitivity of documents, because the

14 burden should not be taken only as a number but also a sensitivity of

15 documents.

16 And finally, of course, these are highly sensitive information

17 involving our Commander-in-Chief, and it is hard to imagine that any state

18 would disclose this information, at least not unless and until very strict

19 protective measures are determined.

20 JUDGE KWON: So that must be your practical reason for not

21 allowing the OTP's access to the archive. I think I understand your point

22 that -- your point is that access to archive is not possible under the

23 regime of Rule 90 -- I'm sorry, excuse me, 54 bis.

24 MR. DJERIC: Yes.

25 JUDGE KWON: I wonder whether it's possible in practical terms,

Page 17559

1 whether there's some specific reason why there is some consensual under

2 the goodwill arrangement made possible to allow them to make a search.

3 MR. DJERIC: As you said first, Your Honour, it's a point of law

4 and point of principle. Second, it is obviously related to national

5 security. And third, you mentioned whether it could be subject to some

6 arrangement. Yes, perhaps. I'm not authorised to say that it could, but

7 I can say that we, in vain, tried to find a modality with the Prosecution

8 in order to meet their demands and in order to meet our concerns.

9 And I wish to stress here that we never proposed that documents be

10 withheld from this Trial Chamber. What we proposed only is that certain

11 protective measures be adopted. However, in relation to -- generally to

12 the access to archives and in relation to these other requests, we had, I

13 have to say, trouble in receiving a workable proposal by the Prosecution.

14 We proposed first meetings. That's mentioned in our written response.

15 These meetings were held. Mr. Nice was in Belgrade. That was the

16 beginning of November 2002. But after these -- and these meetings, I'm

17 sorry, involved the heads or staff of all the relevant archives in Serbia

18 and the federal ones.

19 Now, after these meetings, what we received in a couple of weeks

20 was -- were the requests which were completely the same as the ones that

21 we received before. Only now, I believe a couple of weeks ago, we

22 received a proposal from the Prosecution that we immediately put into a

23 consultation process within our government, and we are hoping to have an

24 answer rather soon. But I have to say that we have waited for such a

25 proposal for months, if not a year.

Page 17560

1 So we are very open to consultations with the Prosecution, but we

2 can get the response from the Prosecution only after months and only with

3 a lot of effort. And what happens sometimes, as we mentioned in our

4 written response, is that we have a confidential content of our

5 negotiations made public, as the Prosecution did in the application. And

6 it's not right to say, as the Prosecution says, that we wanted to withhold

7 the content of our consultations with them from the Trial Chamber. That's

8 not the point. The point is that it's the usual rule of negotiations in

9 diplomatic practice that the content of the negotiations is not made

10 public. And the whole matter could have been resolved only if the

11 Prosecution filed its application confidentially. But that's -- that's

12 another story related to this process of consultations that we have with

13 the Prosecution which we are not satisfied with, I have to say, but we

14 hope to have progress on that.

15 JUDGE MAY: Just help us with this: Suppose that we were not

16 inclined - and I'm just speaking for myself and I'm merely thinking aloud

17 - supposing we were not inclined to make any orders today but accept your

18 assurance that you were in good faith pursuing such documents as you think

19 you can produce, how long do you think it would take to produce the

20 documents, such documents as you can, on this -- the latest document, this

21 latest extract we have, said to be the priority list? How long would you

22 want to access that and to see whether you can produce these and produce

23 what you would?

24 MR. DJERIC: Well, I can only talk hypothetically, of course. We

25 have now sort of reorganisation of our government, so that would take some

Page 17561

1 time. Not -- I'm talking about perhaps months or several weeks, rather.

2 But we, in any case, feel that this application is unnecessary, because I

3 personally signed a lot of responses to the Prosecution every day, and

4 there are a lot of them, I can assure you.

5 JUDGE MAY: Let me interrupt. They've now come to us and asked us

6 to do something about it. So we are under an obligation to consider it.

7 As I say, it's a possibility. One possibility is to say, well, we would

8 adjourn the application or we would take no action providing efforts are

9 made, for some months, for you to make further efforts to access such

10 documents as you can. That's what I'm inquiring, as to what sort of time

11 you would ask for.

12 MR. DJERIC: As I said, I'm not in a position --

13 JUDGE MAY: Just a second.

14 MR. DJERIC: Sorry.

15 [Trial Chamber confers]

16 JUDGE MAY: Yes, Mr. Djeric. We interrupted you.

17 MR. DJERIC: Yes.

18 JUDGE MAY: How long would you be asking for to deal with the

19 other matters?

20 MR. DJERIC: I could say weeks, perhaps --

21 JUDGE MAY: Very well.

22 MR. DJERIC: -- up to a month and a half. But there is one more

23 thing, and that is there are different requests here. Some of the

24 requests plainly cannot be fulfilled by Serbia and Montenegro. You have

25 yourself discussed this response that the documentations may -- the

Page 17562

1 documentation may have been destroyed. But there are other documents

2 requested that plainly are not in the archives, or plainly do not exist

3 after good faith searches that were conducted by our authorities. So I

4 cannot commit in respect to those documents.

5 I also cannot really commit in respect to the access to archives,

6 and not because we --

7 JUDGE MAY: That's matter which we're going to consider, this

8 point about the archives. We're not persuaded, I can tell you at the

9 moment, that they should have access to the archives, but it's the other

10 documents which you can produce which we are concerned about.

11 MR. DJERIC: Okay. If we -- Your Honours, if we go to these

12 requests that we consider are subsumed to the general access to archives

13 that I started to discuss, you will see that -- I think that in respect to

14 them, we could -- we could have consultations with the Prosecution.

15 You also have to consider, when taking your position, that some of

16 these requests, such as request 309, which is in your table at the very

17 end, probably.

18 JUDGE KWON: Page 15.

19 MR. DJERIC: Yes, at page 15. This request was actually sent to

20 Serbia and Montenegro only on 6 November 2000 [sic], and so the

21 application could not wait five weeks. And the Prosecution could not wait

22 even five weeks and included this one in the application. I'm sorry, 6

23 November 2002. So this is request 309 at page 15. That's number 144 --

24 143, 144, 145, 146. It's plainly no reasonable steps have been taken.

25 [Trial Chamber confers]

Page 17563

1 JUDGE MAY: Yes.

2 MR. DJERIC: Well -- so that was request 309. Then request 119/B

3 and /C, which is in your table at page 2 and 3, point 17 to 23. These

4 requests are, for instance, also quite new. They were sent only, I

5 believe, in October, 16 of October, 2002. So we also had maybe two or

6 three months -- three months before the application to process these

7 requests. And as you see, they cover almost everything in a six-month

8 period, for six months of 1999 and relate to all possible orders,

9 directives, instructions, plans, notifications, reports, decisions, et

10 cetera, et cetera, of all the units involved in the Kosovo conflict. And

11 this is also something that we consider over-broad. Also we consider it

12 quite burdensome. And finally, we consider that no reasonable steps have

13 been taken.

14 It is very interesting to know that request 119/C refers to war

15 diaries, operation logs, incoming and outgoing message logs from the

16 General Staff of Yugoslav army, et cetera. It's a very similar request to

17 the one that needed further specification in Kordic and Cerkez Chamber

18 order in relation to the Defence request to the Netherlands. That order

19 was dated 27th January 2000, and then the Chamber said that the party

20 should further specify its requests, and I'm quoting, "... for

21 contemporaneous diaries, journals, et cetera, kept by Dutch army or

22 intelligence personnel." This is quite similar what the Prosecution is

23 asking from us now.

24 I would also wish to mention request number 118, which is another

25 request that we consider amounts to a general request for access to

Page 17564

1 archives. That is points 13 to 16 at page 2 of your document. Also, it's

2 way too broad in terms of subject matter, in terms of events and places it

3 covers. It is also a request related to Kosovo conflict which involved,

4 of course, bombing of the Federal Republic of Yugoslavia, and we don't see

5 how all these documents can be related to the proceedings.

6 It furthermore involves thousands of documents, and basically the

7 whole archives of the Supreme Command for that period. And it involves

8 highly sensitive information for which we might have national security

9 concerns.

10 Now coming to request number 174, and that is the request at

11 points 25 to basically point 42. That is pages 4, 5, and 6 of your

12 document. We have a report that this documentation was destroyed during

13 the bombing. I really cannot accept the contentions of the Prosecution

14 that there is a reason not to believe the government when the government

15 produces an information that something does not exist or has been

16 destroyed. You will see a similar situation in respect to the request

17 number 219. And I am again inviting you to consider the last couple of

18 years in Serbia whereas we had a complete change of government in October

19 2000, and many of the documents just were not found after the change. And

20 as the Prosecution well knows, many of the documents might -- may be found

21 in private hands of private individuals.

22 Also, in some cases, archives documents, records, were not kept.

23 JUDGE ROBINSON: Let me just have a point clarified about your

24 contention in relation to archival material. You make the point that the

25 Prosecution has no right to access archival material, no right to physical

Page 17565

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Page 17566

1 access to archival material under 54 bis, and I understand that argument.

2 But on the other hand, when you go through the list, you point to some

3 request that you say essentially relate to archival material. So I gather

4 the Prosecution is not requesting physical access to that material, but in

5 your assessment the material is archival. But it doesn't seem to me that

6 logically you can make the same argument, because all they're requesting

7 there is that you provide documents or information from that material,

8 even though you may wish to characterise it as archival. They're not

9 requesting physical access to it.

10 On that score, you'd have to confine yourself to the general

11 objections based on the Blaskic decision, the burdensome nature, and the

12 others that you have cited.

13 MR. DJERIC: Thank you. Well, I'm trying to, when I go request by

14 request, basically to give objections in relation to the criteria that

15 were in the Blaskic decision and 54 bis. But the point about the archives

16 is sort of a preliminary point. One thing is to request physical access

17 to archives, and that is what the Prosecution does in respect to certain

18 requests for assistance.

19 Another point is that the Prosecution, in some cases, wishes to

20 have basically all the documents in a particular archive, and that is

21 nothing else for us than the access to archives. If the Prosecution

22 wishes to have all the documents of the Supreme Defence Council for the

23 period of 1999 up to 2000, including stenographic notes, decisions,

24 orders, et cetera, et cetera, et cetera, et cetera, that is nothing else.

25 What is then, in other words, left in the archive?

Page 17567

1 JUDGE ROBINSON: I think the proper basis, following Blaskic, is

2 that the request is too general and broad, not that it is archival.

3 MR. DJERIC: It is indeed. Yes. Yes. Indeed it is also general

4 and too broad, and in the alternative, we argue that these requests do not

5 fulfill the Blaskic criteria and do not fulfill Rule 54 bis criteria.

6 JUDGE MAY: Mr. Djeric, I'm going to have to ask you to come to a

7 conclusion because of the hour and a half being up and the interpreters

8 needing a break.

9 Just give me one moment and let us confer for a moment.

10 [Trial Chamber confers]

11 JUDGE MAY: Let me say what we have in mind and give the parties a

12 few minutes to comment on it. What we have in mind, Mr. Djeric, is this:

13 That we have here this priority list, and it's a starting point and it

14 concentrates the minds on particular areas. What we have in mind is to

15 give you two months to respond to this priority list. You would do that

16 by very briefly indicating with a box, as it were, at the end your answer

17 over-broad, or whatever it is, archival, where it can be produced,

18 producing it if you can, complying as much as you can, obviously, but

19 indicating that or when you can comply with it.

20 In that way, the Trial Chamber will have before it all the

21 arguments. You will also have more time to comply.

22 And also, we would invite the Prosecutor, at this stage, if they

23 can be -- the Prosecution, if they can be more specific, to be more

24 specific on any of these particular archives as they're referred to.

25 Mr. Djeric, is there anything you would want to say about that?

Page 17568

1 MR. DJERIC: Your Honour, did you say two months?

2 JUDGE MAY: Two months, yes.

3 MR. DJERIC: Yes indeed, I think that two months is sufficient. I

4 think we would be able to provide you with brief answers or with a similar

5 list commenting on this paper in less than two months. Therefore, then we

6 could see what are the response that have been completely out of the

7 agenda and what remains.

8 JUDGE MAY: Just a matter of practicality, if you could do it on

9 this document.

10 MR. DJERIC: Yes.

11 JUDGE MAY: Putting another box on the end, that would be very

12 helpful, to make it much easier to follow.

13 MR. DJERIC: Indeed.

14 JUDGE MAY: Mr. Nice, we recognise that this is your priority, but

15 it does give us a document to work on, which at least has the advantage of

16 being a specific document. We recognise it's not all of them. But we are

17 minded to give the government some more time to consider the matter and to

18 comply as far as possible. And we would then have the issues clarified,

19 as far as we're concerned. The purpose being, of course, that as much as

20 can be done by cooperation should be done and only ultimately should

21 orders be made.

22 MR. NICE: If Your Honour is inviting me to speak, I see

23 Mr. Djeric may not have concluded what he wants to say.

24 JUDGE MAY: I think for the moment there's nothing he wants to add

25 on that, as I understand it. Bearing in mind, I'm afraid, the

Page 17569

1 interpreters.

2 MR. NICE: Yes. And, Your Honour, I'm grateful for the

3 indication. Can I make this perhaps obvious point: Given the time limits

4 on us, this may be the critical hearing for determining how much

5 documentary material of a highly important nature we can get before you.

6 I'm afraid that our -- and I have to say this. Our experience is that

7 granting time, or the government obtaining time, is usually a preface to

8 them getting more time from us. And although I'm grateful for the very

9 constructive approach that Your Honour is taking by saying give time and

10 produce these documents, which is I think what Your Honour is saying, Your

11 Honour will have in mind that 219, outstanding since June of last year for

12 simply no good reason, is the very documents we would be wanting to call

13 to put through witnesses whom, if we are to meet either the present time

14 scale or any extended time scale, are witnesses who we've got to start

15 having within the next couple of weeks, three weeks. We can't -- we

16 cannot afford any more time.

17 Of course, we've asked, you can consider the position of time at

18 the moment and I've said that it may be, in due course, I'll have to apply

19 for more time, but we are running up against the time. And what's

20 happened is that the government concerned has taken its time.

21 And you know, I was going to make this point amongst the few that

22 may be allowed to me in the time available. One of the questions is what

23 is an archive? Now, it's true that in an early stage in 1991 when we were

24 looking for complete archives -- not looking for, we approached the

25 authorities absolutely on the basis that there might be discussions about

Page 17570

1 the mechanism of having access to them, by discussion with archivists and

2 things of that sort. It was never the suggestion we should have the whole

3 archive, it was always a question of assessment, which is the route that

4 had been pursued with such success with the other entities. And it got

5 somewhere with the Ministry of Justice, but once the documents became as

6 critical as these, it was simply silence, no provision, no suggestion that

7 what we were asking for was archives until the response to this

8 application. And it's only this application, and a public application,

9 that's flushed out a new defence.

10 And when I say What is an archive? and deal with the Chamber's

11 suggestion that archives might in some way be non-available to us, take

12 the SDC. Now, there weren't actually very many meetings of it, it may be,

13 because the accused, if our case is right, exercised control in other

14 ways, and he exercised control on the SDC. You take all the SDC documents

15 and you put them into a container and you say, "This is an archive." We

16 say the SDC did operate. Critical to our case is to see how it operated

17 because its very operation was reflective of the accused's criminality and

18 guilt, and the fact that those documents are not available to us is

19 indicative of the fact that there is something to hide. The authorities

20 say, "Ah, but that's an archive." And if I may say so, the Chamber's

21 approach to that may be somewhat unhelpful because it will encourage the

22 categorisation as archives of documents that were never archives at all.

23 The whole VJ army. Yes, that record is an archive and would need a

24 different approach. But the meetings of the SDC, not at all.

25 For example, when Mr. Djeric was speaking of the over-broadness of

Page 17571

1 request number 117, contained within 117, which was made as long ago as

2 August of 2001, was the Rules of Procedure of the Supreme Defence Council.

3 That's a two-page document. There are two versions, different dates. I

4 think it's about a two-page document which has now been provided in 2003.

5 Item 2 was minutes of some meetings between April 1992 and 5th of October

6 2000, and the stenographic recordings of those meetings. Those meetings

7 will exist. They will reflect how that Supreme Defence Council operated,

8 and they will be highly reflective of the truth that underlines our case

9 against this accused.

10 So that, A, when there were archives, we were entirely

11 straightforward about the desirability of going through archivists and

12 assessments. We never got beyond that, and we have never sought

13 possession of or generalised access to archives. And the word has been

14 used in this response as a way of defence. And Your Honour will have

15 noticed that --

16 JUDGE ROBINSON: Mr. Nice, that's why I made the distinction.

17 MR. NICE: Yes. I noticed Your Honour did.

18 JUDGE ROBINSON: Because there is, to my mind, a clear distinction

19 between the point being made about physical access to archives on the one

20 hand and the question of the acceptability of a request for documents or

21 information which may be found in something that is called an archive.

22 That's an entirely different matter, and that has to be determined on the

23 basis of the general criteria.

24 So I don't think you should take it that the Chamber has accepted

25 that point.

Page 17572

1 MR. NICE: Well, I'm grateful for that. And it's very a helpful

2 line, as it were, for us to have held because otherwise this would be

3 probably used against us time and again as a ruling that barred us even

4 making certain types of requests.

5 Mr. Djeric says, you know, that they're anxious to see the

6 solution to these terrible crimes, and so on. If I may say so, why are we

7 here? We aren't here to burden ourselves with more material than we want,

8 believe us. We are here simply to try and get the best material to help

9 you, and that material lies with the authorities. And we have done the

10 best we can to focus our requests, to repeat them and to explain their

11 necessity, and we respectfully suggest that our outstanding requests

12 should be the subject of a positive order but that certainly, as an

13 interim measure, the priority list should be ordered, but two months is a

14 very long time for things that have been outstanding, and it may be that a

15 staggered order would be appropriate, and that is that all of those, and

16 in particular all of 219, which is so important for upcoming witnesses and

17 which are all outstanding then now for nine months, effectively, that

18 those should be ordered in a far shorter space of time to enable us to put

19 them through the witnesses we hope to call.

20 So that, Your Honour -- those are probably my prime points. I'll

21 see Ms. Milenov has been picking up the various requests, as they've been

22 referred to by Mr. Djeric. No. The fundamental point is -- about

23 archives is it's been a proper approach by us -- oh, there was something I

24 was going to tell you, inform you about.

25 Again, this hasn't been challenged. We received a proposal last

Page 17573

1 year. I've got to check with Mr. Djeric because I'm not really a diplomat

2 and I don't know about these things. I don't believe there's any

3 objection to my mentioning what proposals were made by the authorities for

4 the production of archival material insofar as the Supreme Defence Council

5 material may now be being said to be archival. I see not.

6 The proposal was --

7 MR. DJERIC: Your Honour, I'm --

8 JUDGE MAY: We'll go into private session and then the matter is

9 covered in that way.

10 We must be coming to a conclusion too.

11 [Private session]

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16 [Open session]

17 THE REGISTRAR: We're in open session.

18 JUDGE MAY: Let Mr. Djeric finish, but very briefly, Mr. Djeric.

19 MR. DJERIC: Yes, very briefly. So we are asking you to reject

20 the application in respect of the requests for assistance contained in

21 part 1 of the application, and these are those requests that explicitly

22 relate to archives. We think that we can meet your suggested time frame

23 for the provision of the -- of the information about the pending requests

24 for assistance. And in respect to 219, we are certain that we could

25 provide information in a quite short time.

Page 17577

1 As regards just one more sentence. As regards the proposals that

2 we made to the Prosecution, I'm not going to go to the details in respect

3 to 219, I would just like to repeat that these were legitimate

4 consultations between the government and the Prosecution, that there was

5 no intention to withhold anything from the Chamber, and that the

6 Prosecution, according to our proposal, would be able to review the

7 documents before we ask for protective measures in respect to those

8 documents that the Prosecution wishes to have. Thank you very much.

9 JUDGE MAY: Thank you. Yes, Mr. Nice. Five minutes, please.

10 MR. NICE: Your Honour, I am probably not going to be that long.

11 I've dealt with the history of references to archives which were through

12 requests for assessment by contact with archivists to reflect the

13 procedures with other entities.

14 Any order that's made would, in our respectful submission, be much

15 assisted by an order that the government makes absolutely clear its

16 position in relation to the consequences of the bombing. There are duties

17 on the state to preserve and to keep copies of documents. It must have

18 either a good or very, very good view of exactly what was there, what

19 didn't have copies elsewhere, and what did have copies elsewhere that we

20 haven't yet been able to track down by a specific request; and a full and

21 detailed answer from them on that is what would be appropriate, in our

22 respectful submission.

23 It appears that 219 is more available than the two months would

24 require. We would invite it to be ordered forthwith. We cannot believe

25 that those documents, having been the subject -- having been such

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Page 17579

1 obviously important documents, sought now for nine months, haven't already

2 been found, located and waiting for determination as to whether they

3 should be handed over. They should be handed over forthwith.

4 Issues of national security may arise with this problem as with

5 any other. They should be dealt with at court or possibly by preliminary

6 motion to the Court on a case-by-case basis. We all know the Chamber will

7 be sympathetic but it is not appropriate to muddle issues of national

8 security with issues of holding back or providing documents of this kind.

9 I certainly do not regard the government as an adversary. I

10 regard them as a body having duties of compliance with this Court which I

11 have to ensure they perform insofar as it's up to me to do so by request

12 and, where request fails, by application to the Court. That is all I've

13 done, and that's all I'll do with them as with any other body.

14 And, Your Honour, I think that's probably all I desire to say.

15 Can I just check one thing? No, there are various -- various detailed

16 pieces of information coming to me about matters that have been said, but

17 I'm not sure that I'm in a position in the time available to summarise

18 them.

19 Can you just give me one moment, though?

20 Your Honour, for the avoidance of any doubt or to avoid any

21 confusion, there were requests about archives, that's the archives of the

22 Yugoslav army, these are all back in 2001 and were at the time of the

23 requests for meetings to get on with archivists and see what could be

24 done.

25 And as to the earlier assertion by Mr. Djeric that following the

Page 17580

1 meeting that I was at in November of last year, there's been nothing but

2 requests since then, that simply, as I understand it, isn't true. There

3 were follow-up meetings of Mrs. Tromp, and I think Mr. Patrick Treanor in

4 Belgrade within a few weeks of that and many other negotiations of a like

5 kind. I repeat the point: We are only here because the efforts to get

6 these materials by consent and by negotiation when we know they exist have

7 foundered. And we understand, as I'm sure the Chamber does, that this

8 material is critical to the best resolution of this case.

9 If I can just read one more e-mail I have.

10 JUDGE MAY: Mr. Nice, I think we must get on. Thank you.

11 MR. NICE: That's all I have to say.

12 JUDGE MAY: We've considered the submissions. For reasons which

13 have been advanced during the course of argument, at the moment we think

14 that a final determination of this matter would be premature and that a

15 more productive course would be to adjourn it to allow the government to

16 respond to the priority list of documents produced by the Prosecution

17 today within two months, to comply with the requests in it as far and as

18 soon as possible or to indicate the ground of objection where it's taken

19 to any request.

20 Having received that response, the Trial Chamber will consider

21 what action is necessary, if any, and whether a further hearing is

22 necessary.

23 The Court will rise and sit again 9.00 tomorrow morning.

24 --- Whereupon the Motion Hearing adjourned

25 at 5.00 p.m.