Tribunal Criminal Tribunal for the Former Yugoslavia

Page 743

 1                           Monday, 15 February 2010

 2                           [Rule 54 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.36 a.m.

 6             JUDGE KWON:  Good morning, everyone in the courtroom.

 7             Could the court officer please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Case number

 9     IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.

10             JUDGE KWON:  Thank you, Madam.

11             Your Excellencies, and ladies and gentlemen.  Today we are

12     holding a motion hearing to discuss several binding order motions filed

13     by the accused.  There remain seven of these motions pending concerning

14     Bosnia and Herzegovina, Croatia, France, Germany, Iran, Italy, and the

15     Netherlands.  The accused and the states in question have filed various

16     written submissions in relation to them.  Following a Status Conference

17     held on 28th January, the Chamber determined that it would be helpful to

18     hear from the representatives of these states and the accused at the

19     hearing to be held today.  Representatives of the seven states were

20     invited to attend today's hearing; however, following further submissions

21     from the accused, it was determined that it was unnecessary for

22     representatives of Italy to be present at this time.  Similarly, on

23     10th February, the Netherlands informed the Chamber that of the two

24     outstanding documents to be delivered to the accused, one would be

25     provided before the hearing and that it was making urgent arrangements

Page 744

 1     with regard to the second.  As a result, the Chamber was of the view that

 2     representatives of the Netherlands should also be excused from the

 3     hearing.

 4             Finally, on 12th February, Friday last week, Bosnia and

 5     Herzegovina informed the Chamber that due to "technical obstacles" it was

 6     unable to organise its representatives and send them to The Hague in time

 7     for the hearing.  The Chamber would like to express its disappointment

 8     that this is so and would like to emphasise that hearings such as this

 9     one conducted pursuant to Rule 54 bis are held for the benefit of the

10     states rather than any other party.

11             At such hearings, the states can be heard before a determination

12     is made by the Chamber on whether they should be compelled to disclose

13     documents to any of the parties before the Tribunal.  Given that Bosnia

14     has failed to use this opportunity, the Chamber would proceed to consider

15     the accused's motion concerning Bosnia without hearing from its

16     authorities.  We are, therefore, sitting today in the presence of the

17     accused, the Prosecution, and representatives of Croatia, France,

18     Germany, and Iran.  I would like to thank the state representatives on

19     behalf of the Chamber for their attendance and their contributions to

20     this hearing.

21             Let me first introduce the members of the Trial Chamber to you.

22     I'm Judge O-Gon Kwon from South Korea.  To my right is

23     Judge Howard Morrison from the United Kingdom; and to my left,

24     Judge Melville Baird from Trinidad and Tobago; and to my far right,

25     Judge Flavia Lattanzi from Italy as a reserve Judge.

Page 745

 1             I would now like to ask each of the representatives to identify

 2     for the record who they are and which state they are representing at this

 3     hearing.  I will follow the alphabetical order.

 4             For Croatia first.

 5             MR. PARO:  [Microphone not activated].

 6             JUDGE KWON:  If you turn on the microphone when you speak, and I

 7     was told, Ambassador, this is the first time ever in the history of the

 8     Tribunal that five languages are interpreted at the same time, so to make

 9     a pause between each statement.  Please go ahead, Ambassador.

10             MR. PARO:  I'm sorry.  My name is Josip Paro, and I'm Ambassador

11     of Croatia.

12             JUDGE KWON:  Thank you very much, Ambassador Paro.

13             For France.

14             MR. FLORENT: [Interpretation] Thank you very much, Mr. President.

15     Jean-Luc Florent, deputy director of legal affairs in the Ministry of

16     Foreign Affairs.

17             MS. DE MATHA: [Interpretation] Thank you, Mr. President.

18     Ginette de Matha, Chargee de Mission with the direction of legal affairs

19     in the foreign affairs ministry.

20             MS. RENAULT:  [Interpretation] Thank you, Mr. President.

21     Celine Renault, Chargee de Mission in the defence ministry in France in

22     the direction of legal affairs.

23             MR. VILLEMAIN: [Interpretation] Jacques Villemain, Legal Advisor

24     with the French embassy in The Hague.

25             JUDGE KWON:  Thank you very much.

Page 746

 1             And then for Germany.

 2             MR. LAUFER: [Interpretation] Mr. President, my name is

 3     Thomas Laufer.  I'm Ambassador of Germany here in The Hague.

 4             MR. TRAUTMAN:  [Interpretation] Mr. President, my name is

 5     Sebastian Trautman.  I represent the Ministry of Justice in Berlin.

 6             MS. ACHILLES:  [Interpretation] Thank you, Mr. President.  My

 7     name is Susanne Achilles.  I'm the second secretary in the legal

 8     department of the German Embassy in The Hague.

 9             JUDGE KWON:  Thank you.

10             And lastly for Iran, please.

11             MR. ESFAHANINEJAD:  Thank you, Mr. President, my name is

12     Mahmoud Esfahaninejad, deputy for legal and international affairs of the

13     embassy of the Islamic Republic of Iran in The Hague.

14             MR. MOKHBEROLSAFA:  Thank you, Mr. President, my name is

15     Ali Mokhberolsafa, legal advisor to the embassy of Islamic Republic of

16     Iran.

17             MR. SABERI ANSARI:  Thank you, Mr. President, my name is

18     Behzad Saberi Ansari.  I'm the legal counsel of the embassy of the

19     Islamic Republic of Iran in The Hague.

20             JUDGE KWON:  Thank you very much.

21             Mr. Karadzic, I see that you are again here on your own and I

22     understand you will not be joined by any of your legal advisors today.

23             THE ACCUSED:  [Microphone not activated].

24             THE INTERPRETER:  Microphone, please.

25             JUDGE KWON:  Could you repeat with your microphone on.

Page 747

 1             THE ACCUSED:  [No interpretation].

 2             JUDGE KWON:  Are we hearing interpretations?

 3             THE ACCUSED: [Interpretation] Yes, it is.

 4             JUDGE KWON:  If you could repeat.

 5             THE ACCUSED: [Interpretation] Yes, I would like to greet all the

 6     Excellencies present here.  As for my presence here on my own, this is

 7     how it should remain until the end of this hearing.  Concerning my

 8     associates, I have two of them at the moment, one of them in The Hague,

 9     and in fact I do not need them for this particular section of our work.

10             JUDGE KWON:  Very well.

11             Can I also have the appearances for the Prosecution.

12             MR. TIEGER:  Good morning, Mr. President, Your Honours.

13     Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid appear for the

14     Prosecution.

15             JUDGE KWON:  Thank you, Mr. Tieger.

16             Before we move into the submissions, there are a few procedural

17     matters that should be addressed.  As you know from the Scheduling Order

18     issued last Thursday, 11th of February, each of the accused's motions

19     will be discussed separately, with only the representatives of the state

20     concerned present in the courtroom, together with the accused and the

21     Prosecution.  That means that following my opening remarks, I will ask

22     the representatives to leave the courtroom, with the exception of the

23     representatives of Germany, who will be heard first.  Following the

24     discussion of the motion hearing and motion relating to Germany, those

25     state's representatives will leave the courtroom and the representatives

Page 748

 1     of France will come in and we will deal in turn with each motion in this

 2     manner.

 3             How the submissions are being made, the representatives of the

 4     states not in the courtroom are free to observe the hearing from the

 5     public gallery.  They will be able to see and hear everything unless we

 6     go into private session to discuss confidential matters, in which case

 7     the audio will not -- will be turned off.

 8             I was also told that there are two witness rooms in the back of

 9     the courtroom where the representatives of the state which is to be heard

10     next can wait until they are asked to come into the courtroom if they so

11     wish.

12             The next matter I want to deal with is any application for a

13     private or closed session hearing.  Given that much of the filing in

14     relation to this hearing are public and that many of the states have made

15     no mention of national security issues in their filings, the Chamber has

16     decided that it will proceed in public session until a specific issue

17     requiring us to go into a private session arises.  It is for the

18     representatives concerned to notify the Chamber when they believe we have

19     reached the point and the Chamber will then consider whether a private

20     session or closed session is necessary.

21             If the Chamber decides to go into private session or closed

22     session, those watching the hearing in the public gallery will not be

23     able to hear what is being said in the courtroom, nor will the hearing BE

24     broadcast to the public.  In addition, those portions of the transcript

25     that are in private session will not be available to the public.  Indeed,

Page 749

 1     only the parties and the state concerned will receive a copy of those

 2     portions of the transcript that are in private session.

 3             I note also that on 10th of February, 2010, Germany filed a

 4     notice of objection, reiterating its position that the binding order

 5     motion concerning it should not be granted on the basis that the accused

 6     has not satisfied the requirements of Rule 54 bis.  I'm explaining this

 7     in the presence of representatives of all states concerned as a way of

 8     introduction of the structure of the Rule 54 bis procedure.  However,

 9     should the Chamber decide otherwise and grant the motion, Germany

10     requests that it be granted a reasonable period of time to assess which

11     documents, if any, will raise national security concerns.  Once these are

12     identified, Germany will seek a number of protective measures pursuant to

13     Rule 54 bis (F).  Given that these are all measures which are to be

14     considered in the event of the Chamber granting the motion, the Chamber

15     does not consider it necessary to go into private session for the

16     purposes of today's discussion.  Much of that discussion will be

17     concerned with the requirements of Rule 54 bis rather than a detailed

18     analysis of certain documents.  However, as I said above, if the

19     representative of any states are of the view that a specific issue should

20     be discussed in private session, they should inform the Chamber

21     accordingly.

22             If any representatives have any questions about this, please feel

23     free to raise them now.

24             Then there's another matter.  As you know, the Chamber has

25     invited the Prosecution to attend this hearing.  Unless the accused or

Page 750

 1     any representatives request the discussion of a particular issue or

 2     document to be heard ex parte, the Prosecution shall be here throughout

 3     the hearing and have access to the transcript of the hearing.  In this

 4     regard, I would like to know if there are any objections to that from the

 5     representatives of the states or the accused.  I see none.

 6             Finally, before we begin, I would like to note that this hearing

 7     is scheduled to last one morning session only, during which we intend to

 8     hear all the representatives of the attending states as well as the

 9     accused.  Accordingly, I would strongly encourage everybody to focus on

10     the main points of contention rather than outlining all of the arguments

11     already made in the writing -- in the written filings.  All submissions

12     are to be addressed to the Chamber and we will give the appropriate party

13     the opportunity to respond when necessary.  Of course, given that Bosnia

14     has chosen not to send its representative, we can be a bit -- a little

15     more flexible with our schedule issued on 11th February and can allow

16     extra time, if necessary, to the participants in the hearing.

17             I would also like to note that we have decided to start with

18     Germany, as the issues arising from that motion are quite different to

19     the issues that need to be discussed in the remaining motions.  Following

20     Germany, we will hear from France and have a break, and after the break

21     Croatia and Iran will be heard in turn.  During each separate hearing,

22     the accused will be asked to make his submissions relating mainly to

23     whether there have been any developments since the last

24     Status Conference.  After that, the floor will be given to the

25     representatives of the states to make their submissions.  The accused

Page 751

 1     will be given an opportunity to reply and the Chamber may also ask

 2     questions.

 3             We shall have a ten-minute break now in order to escort the state

 4     representatives, other than Germany, from the courtroom; but before that

 5     if there's any question in relation to procedural matter, I will hear

 6     them.  I see none then.  So the representatives of Germany are therefore

 7     free to speak in their own language because we have a German interpreter,

 8     as I said, and then we shall adjourn now for ten minutes for the

 9     arrangement.

10                           --- Break taken at 9.55 a.m.

11                           --- On resuming at 10.06 a.m.

12                           FEDERAL REPUBLIC OF GERMANY

13             JUDGE KWON:  Good morning again, Mr. -- Ambassador Laufer.

14             The Chamber notes that the issues arising from the binding order

15     motion involving Germany are somewhat different to the issues we will

16     discuss in relation to other states.  This is because Germany is

17     disputing that it should provide the accused with the documents requested

18     in his motion, as falling under categories 1 to 7 on the basis that they

19     are not relevant and/or necessary to the accused's trial, which is one of

20     the requirements of Rule 54 bis.  In this regard, the accused has

21     submitted in his reply brief of 28th September, 2009, referring to the

22     Appeals Chamber's ruling that a state does not have a standing to

23     challenge relevance of the documents sought.  However, the Trial Chamber

24     is of the view that Appeals Chamber's ruling should be interpreted in

25     such a way that it is ultimately for the Trial Chamber to decide whether

Page 752

 1     or not the specific material sought is relevant and necessary, and that

 2     once the Trial Chamber has determined that the material sought is

 3     relevant and necessary, states are not allowed to challenge the relevance

 4     or necessity of the material.  Therefore, the Chamber is of the view that

 5     it can be assisted by hearing from the states on the issue of relevance

 6     and necessity, until it finally makes its decision on the issue.  It is

 7     for this reason that Chamber ordered the Prosecution to file its

 8     submission on the issue of relevance.

 9             So having said that, I wonder if you, Mr. Karadzic, have any

10     observation to this issue.  If you are of a different view, please

11     elaborate on the point that the Chamber should not hear from Germany on

12     the issue of relevance and necessity.

13             THE ACCUSED: [Interpretation] I do not object to the

14     Trial Chamber hearing the arguments of the state, which is reluctant to

15     provide the necessary documents.  However, the fact is that it is up to

16     the Trial Chamber to be the judge of that.  And my arguments will clearly

17     show that all the documents in question are indeed necessary.  For

18     various reasons they're relevant, they're necessary, because they're

19     going to show not only what happened on the ground and who we were

20     dealing with, who the Serbian side was dealing with and what it had to

21     face, which armed force it had to face, and what the scale of all that

22     was.  They will also show that the state members of the United Nations

23     violated the arms embargo, that they -- that the witnesses from those

24     states, the state members of the United Nations, were very dubious

25     objectivity and impartiality, that impartiality in Bosnia and Herzegovina

Page 753

 1     on the part of many states was also violated, that members and

 2     representatives of the United Nations and members of the United Nations

 3     were on the side of a warring party rather than neutral parties.

 4             I would like to hear His Excellency, the ambassador of Germany,

 5     and I'm very grateful to him and his associates for being here today.

 6     However, I am also prepared to provide arguments about the relevance and

 7     necessity of all the documents that the Defence has requested.  I would

 8     also like to confirm that we wanted to avoid encumbering the

 9     Trial Chamber further, but the fact is that this is of the utmost

10     importance for the entire war in Bosnia and Herzegovina and primarily for

11     the conduct of the representatives of the international community, or

12     rather, some of the states' representatives of the international

13     community.  And there is no way we can establish the truth without such

14     documents.

15             I am prepared to discuss each and every motion and explain why

16     each of the documents is both relevant and necessary.  Thank you.

17             JUDGE KWON:  Thank you.

18             Now we will hear from you, Ambassador Laufer.

19             MR. LAUFER: [Interpretation] Your Honour, indeed on two occasions

20     in our letters dated 25th of September, 2009, and also dated

21     10th of February, 2010, we asked that the submissions of the defendant

22     are not admitted because we believe they do not fulfil the requirement

23     arriving from Article 54 bis of proceedings, and hence it's still not

24     clear to us because Mr. Karadzic is facing the accusation of genocide and

25     other crimes, and it is not clear why it should be required.  And we

Page 754

 1     stick to our position.  We ask that the defendant to limit him to

 2     happenings -- and that we shouldn't go back to political events between

 3     1991 and 1995, because otherwise this trial is going to be political

 4     academy and it's not going to be a Tribunal.  So this is my position as

 5     far as this case is concerned.

 6             Of course, all in all we checked and made sure whether there

 7     should be documents regarding to the demand made by the defendant, but we

 8     did not see that especially in his -- what it says in number 1 to

 9     number 7, that there should be such relevant documents, that they should

10     exist.  Of course there are conferences about -- and meetings about such

11     relevant documents, but the documents that we have pertain to national

12     security or pertain the protection of third states.  And we cannot

13     disclose that without the permission of those third countries.

14             There's also the question of the German Parliament.  The

15     German Parliament is a democratic organ of the Federal Republic of

16     Germany and it's autonomous, and you can also see Mr. Altmaier -- you got

17     a letter from Mr. Altmaier where he makes an explanation about this.  The

18     Parliamentary Control Committee is going to convene in about six to eight

19     weeks' time and they're going to deal with this question once again, and

20     we might possibly also have a further notification from that particular

21     body.

22             Your Honour, if in case, if the Chamber accepts the motions under

23     number -- Articles number 1 to 7, we already said in our letter on --

24     dated 10th of February, we need enough time in order to look into the

25     matter as to which documents would be within the remit of the federal

Page 755

 1     government and which would be relevant for a disclosure.  And what we

 2     have seen so far, it does not apply in any of the cases, and we have

 3     also, in as far as the Rules of Procedure and Evidence clause 54 bis is

 4     concerned, we need to talk about this again.  I just want to state quite

 5     clearly that in order to make the proceedings quite quick, that we

 6     believe - also in the interests of the Prosecution - that the disclosure

 7     should be limited to be -- to actual deeds because I don't think we're

 8     talking about the political state of affairs in Bosnia at the time.

 9             JUDGE KWON:  Thank you, Ambassador Laufer.

10             Mr. Karadzic, would you like to respond to this briefly?

11             THE ACCUSED: [Interpretation] Yes, Your Honour.  I absolutely do

12     not agree with what His Excellency, the German Ambassador, has just

13     stated.  The events in Bosnia and Herzegovina were not part of a vacuum;

14     they were provoked by certain circumstances.  Those events were impacted

15     by all the sides and all the parties, and there were at least four

16     parties involved:  Serbs, Croats, Muslims, and the international

17     community.  And within the international community, as the proceedings

18     are going to show, we had individual states which were present there with

19     their troops and their intelligence services that acted independently on

20     behalf of their governments because we, ourselves, did not allow any

21     state to act on its own behalf.  We also had member states of NATO and

22     some of their staff worked for the NATO, not for the United Nations.

23             As far as the issue of genocide is concerned, genocide is mostly

24     linked to Srebrenica, although this has also been extended.  The issue of

25     the smuggling of weapons that arrived through Germany from -- and

Page 756

 1     departed from Ramstein airport in Germany, that is of some significance.

 2     That issue has a lot of significance and will impact on the testimonies

 3     of international witnesses and UN member states that violated the arms

 4     embargo imposed on Bosnia and Herzegovina.

 5             I'm prepared to deal with every issue and with every document.

 6     I'm not going to mention the name of the gentleman from B and D [as

 7     interpreted], I don't want to go into private session, but it must be of

 8     some concern what that gentleman did in the military observers' mission

 9     and at the same time he was a member of the intelligence service of

10     Germany.  These things have to be dealt with.  We don't have to talk only

11     about who killed whom in the civil war.  Those countries knew that, they

12     knew of all that, even when they heard -- before they heard of Karadzic,

13     that even predicted that there would be 250.000 victims.  We have to see

14     now how come that the number of victims was smaller.

15             We can absolutely not arrive at a full picture and have a fair

16     trial and a fair sentence if we do not have all the elements and if such

17     important countries as Germany do not appear.  I'm not saying that I'm

18     going to say what certain American officials did, even unbeknownst to

19     their government during Tito's era.  Not only did those countries

20     predicted what would happen in Yugoslavia and especially in

21     Bosnia-Herzegovina.  Some of them were actively involved in the break-up

22     of the former state of Yugoslavia and contributed actively to what would

23     happen there.  But this is not the issue at hand here.  At this moment

24     these are the most specific things that need to be discussed, and even

25     these things from 1 to 7 and even 8 are very specific requests and the

Page 757

 1     proceedings would not be complete and would not be fair without them.  If

 2     Your Excellency is interested in each particular item, I am prepared to

 3     explain to His Excellency, the German Ambassador, why each of them is

 4     important.

 5             Not only did we defend ourselves from the entire world or from

 6     the Western part of that world, to be more precise, because they had

 7     their troops within the Bosnian army, not only were many resolutions

 8     violated, particularly the arms embargo --

 9             JUDGE KWON:  Mr. Karadzic, let's deal with it one by one.  Let's

10     start with item 8 you just referred to.  Germany submitted that it

11     couldn't find any item in relation to item 8.  Do you have any say to

12     that?

13             THE ACCUSED: [Interpretation] Well, if we're talking about the

14     same thing, you're referring to the transcripts of the statement and the

15     intercepts of my conversations.  Well, I assume that Germany should have

16     them because they have done -- worked a lot on this.  They should have

17     something, some intercepts on my activities related to Srebrenica, in

18     view of the fact that they also had intelligence personnel on the ground.

19     So they should have some knowledge as to what was happening.  I did

20     manage to find one intercept which is actually of exculpatory nature,

21     which was provided by Croatia.  But I would like to know what else there

22     is out there because I'm sure that I haven't received all of it.  In

23     other words, I have to assume that Germany must have such documents

24     because there was a lot of German presence there, both in the UNPROFOR

25     and on the ground.

Page 758

 1             JUDGE KWON:  Do you have any substantive material that would

 2     substantiate your allegation that Germany should have more -- any

 3     material in relation to that category?

 4             THE ACCUSED: [Interpretation] In this particular case, item 8, I

 5     don't have any such substantial evidence, but it would be very unlikely

 6     that Germany, as one of the main actors in the events in the Balkans,

 7     does not have any documents.  But as for the other items, of course I do

 8     have such supporting documents -- evidence.

 9             JUDGE KWON:  One of your arguments on relevance is that these

10     documents are relevant to your count, Count 11, of taking hostages.  What

11     can you say about the claim that whether the UN personnel was combatants

12     or civilians is irrelevant to the charges under Count 11?  What is your

13     observation to this?

14             THE ACCUSED: [Interpretation] Your Excellency and Your Honours,

15     the Defence will dispute the position that armed representatives of

16     international forces, whose commander is -- whose commander is the

17     commander who issues orders for bombing, that such personnel should be

18     considered civilians.  In -- also the participation of such personnel in

19     fire correction, in fire control and so on, who were on the ground, we

20     will show that they were there.  They were present.  But what I would

21     like to say is that the taking of hostages, which is charged under

22     charge 11, was not something that had been ordered; it was done

23     spontaneously and in panic.

24             What I'm trying to say is that people perceived these

25     representatives, these armed representatives, of the international

Page 759

 1     community as biased.  It's not only their perception; they were biased.

 2     So it isn't just that the people perceived them as combatants of one of

 3     the sides in the hostilities.  They actually were part of the hostilities

 4     and they did side with one side in the conflict, and that is what we are

 5     going to show.  And of course there was such a perception, but if that

 6     perception among the people was actually grounded, if we can show here

 7     what all the things that were -- all the measures that were taken on

 8     behalf of one side and taking one side, that cannot be considered as

 9     being unbiased.  That is in flagrant violation of international law.

10             JUDGE KWON:  Your last comment leads me to the issue of the --

11     next issue of the credibility of international witnesses.  When you are

12     saying that these documents are relevant in assessing -- to the

13     assessment of credibility of international witnesses, do you have

14     specific witnesses in mind?

15             THE ACCUSED: [Interpretation] Your Honours, I would not here name

16     the witnesses, but two of them are ambassadors, for instance, the two

17     US ambassadors, and the US supported the violation of the arms embargo

18     that was imposed on Bosnia and Herzegovina.  They were in contact with

19     the Bosnian and Croatian governments as well as the Iranian government

20     via Croatia.  They took an active role in providing a huge amount of

21     weapons and military equipment and provided support, significant support,

22     to one of the sides in the conflict.  So how can we consider their

23     representatives to be unbiased when their states were biased?

24             The Excellencies here will speak or testify to the guilt of the

25     Serbian side based on words, not an deeds.  But ambassadors of a country

Page 760

 1     that was actually involved in the violation of the arms embargo and was

 2     an interested party in the outcome of that war, the length of that war,

 3     and its intensity, how can we expect them to be unbiased witnesses here,

 4     the representatives of such states?

 5             JUDGE KWON:  I leave the matter there.

 6             Finally I would like to touch upon the issue of Srebrenica --

 7     just a second.  Oh, yes, Ambassador Laufer.

 8             MR. LAUFER: [Interpretation] Mr. Chairman, if you allow me, I

 9     would like very briefly to comment on the conduct of the defendant here

10     because what he's just said is typical for the way he assesses documents,

11     numbers 8 and 11, items 8 and 11 of the motion, which we've just heard

12     explained in somewhat greater detail.  He's working on the basis of

13     assumption.  He's simply claims that certain people whose names obviously

14     he's obviously reluctant to give us had precise knowledge of certain

15     events.  Nobody can possibly check up on this, but he uses such an

16     assumption as the basis for instigating research in all sorts of archives

17     which a country has which cost a lot of time and effort is something

18     which I find very inappropriate under the circumstances.

19             I'd also like to point out that item number 11 where it's talking

20     about a parliamentary investigation, which also pertains to the behaviour

21     of German intelligence officers, is an issue on which the German

22     Bundestag, the parliament, has decided that there are no documents that

23     have ever existed on this and that, if possible, there may only be a sort

24     of result of an internal discussion ever put on paper, and that, of

25     course, is to be seen as strictly confidential, highly confidential

Page 761

 1     document concerning the rules governing confidentiality of documents in

 2     Germany.

 3             I would also like to mention that the way the defendant has

 4     explained himself is not exactly helping us to motivate us to accede to

 5     his demands.

 6             JUDGE KWON:  Ambassador Laufer, to be just clear, when you refer

 7     to number 11 it refers to the paragraph number of the accused's motion,

 8     not the item number itself.

 9             MR. LAUFER:  It was number 8.  Your Honour, just a second.

10             [Interpretation] Mr. Chairman, it is 7, indeed, I was wrong, you

11     are right.  It is 11, not 7.  I had another document and made the

12     mistake.  Sorry.

13             JUDGE KWON:  Thank you, Ambassador Laufer.

14             Now I turn to the issue of Srebrenica.

15             THE ACCUSED: [Interpretation] Your Excellency, could I say a

16     word, please?

17             JUDGE KWON:  Very briefly, Mr. Karadzic.

18             THE ACCUSED: [Interpretation] I would not confine my request to

19     item 8.  Much more significant are items 1 through 7.  The Austrian

20     government actually pointed to the Government of Germany and they told us

21     that the German government actually conducted investigations at the TWRA,

22     which was actually a company that was a mask for the arms sales to Bosnia

23     and Herzegovina.  We've never disclosed anything that wasn't relevant.  I

24     would appreciate it if we could look at all the previous seven items,

25     they're very significant, and they deal with very important information;

Page 762

 1     and without them, it could not be considered that the accused was

 2     actually given an opportunity to defend himself.

 3             JUDGE KWON:  I take it the German government is well aware of

 4     your request.

 5             Now back to Srebrenica.  In this regard I would like to ask the

 6     Prosecution the following four questions.  Although they submitted in

 7     their prior submission, so I wonder whether Prosecution is in the

 8     position to answer the following questions, whether the Prosecution

 9     challenges the following four facts:  Number 1, Srebrenica was not

10     demilitarised; 2, ABiH forces in the Srebrenica enclave launched attacks

11     from the -- from inside the enclave; 3, arms were smuggled into the

12     enclave; and finally 4, the ABiH -- ABiH forces in the Srebrenica enclave

13     were legitimate military targets.

14             Mr. Tieger.

15             MR. TIEGER:  Thank you, Your Honour.  Your Honour, to the best of

16     my knowledge, the Prosecution has addressed these issues in its previous

17     submissions, alluding to the pre-trial brief, perhaps to the opening

18     statement, to the adjudicated facts that were submitted, and certainly

19     acknowledge that, again, as indicated in our previous pleading, that

20     those are -- the Prosecution was not asserting that the enclave was

21     demilitarised, as we said here; the Prosecution does not dispute that

22     arms were present in and smuggled into the Srebrenica enclave after it

23     was declared a safe area; that the enclave was not demilitarised; and

24     that attacks by Muslim forces from within the enclave against Bosnian

25     Serb forces and villages continued after the establishment of the

Page 763

 1     Srebrenica safe area.  So I don't think that issue is a matter of

 2     dispute, as we pointed out more than once.

 3             JUDGE KWON:  I wanted to be clear, Mr. Tieger, as to the

 4     number 4.  You mentioned in your brief number 1 to 3, but I don't

 5     remember having heard from you on number 4, whether -- I speak again,

 6     whether the ABiH forces in the Srebrenica enclave were legitimate

 7     military targets.

 8             MR. TIEGER:  Yes, Your Honour.  I don't think we've ever taken

 9     the position that military forces are not legitimate military targets, so

10     I think that was implicit in our previous submissions.

11             JUDGE KWON:  So I now turn to Mr. Karadzic.

12             In light of the concessions by the Prosecution you just heard,

13     can you explain to the Chamber why you find it necessary to obtain all

14     these documents?

15             THE ACCUSED: [Interpretation] Your Honour, I appreciate the

16     acknowledgement by the Prosecution as to the truthfulness of these four

17     items, which leads us to the conclusion then - and we can draw that

18     conclusion today - that the decisions that I made or the Republika Srpska

19     army in relation to Srebrenica were legitimate.  However, that charge

20     remains in the indictment.

21             There is another issue here, there is the issue of the

22     surrendered arms, we knew that there -- the origin of the arms.  There is

23     an arms factory in Tuzla, but we know that this -- these weapons were not

24     from Tuzla, but rather from elsewhere.  So we had to follow the channels

25     in order to find out where all these weapons came from, which sides, and

Page 764

 1     who all actually participated in all these events that caused so much

 2     trouble, including at the time when the Cutileiro Plan was being worked

 3     out.  We have to see what actually happened then.  But the fact remains

 4     that the charge in the indictment remains and I am charged with taking

 5     action against Srebrenica, although it is quite clear that we did not

 6     even intend to enter the Srebrenica enclave.  We actually wanted to leave

 7     a way open for them to leave the enclave.  What Mr. Tieger is saying,

 8     that there were attacks there in fact, I have to say that these attacks

 9     were really very, very violent.  We had evidence that some of these

10     fighters from the Srebrenica enclave returned to the enclave with a chain

11     of Serb ears around their necks.  We have to establish all the facts of

12     the events and actually shed full light on the events in Srebrenica.

13             So it is very important where the weapons came from and it is

14     important because we want to show and we want to question how unbiased

15     can representatives of such countries be as witnesses in this trial.

16             JUDGE KWON:  Mr. Karadzic, it is one thing that there's a

17     legitimate cause in waging a war, but it's totally a separate matter how

18     it is waged.  So in this regard, Mr. Karadzic, I would like to remind you

19     that the purpose of this trial is to judge whether you are guilty of

20     charges as alleged in the indictment.  And this is not an opportunity for

21     you to produce a white book of all the events that took place at the

22     time.  And I would advise you to concentrate on defending yourself

23     against the charges in the indictment.

24                           [Trial Chamber confers]

25             THE ACCUSED: [Interpretation] Thank you, Your Honour.  I will do

Page 765

 1     my best --

 2             JUDGE KWON:  Just a second.

 3                           [Trial Chamber confers]

 4             JUDGE KWON:  Yes, Mr. Karadzic.

 5             THE ACCUSED: [Interpretation] What I wanted to say was that what

 6     the Prosecution conceded with regard to all these four questions relating

 7     to the enclaves, and this also applies to the conduct of the ABH or

 8     Muslim army.  And this is very useful and helpful and is going to

 9     simplify the whole procedure and relieve some of the burden from the

10     Defence in order to prove certain things.  However, the fact remains that

11     the sources of the weapons that arrived were in many countries that

12     support this Tribunal who hold me responsible for many things and whose

13     high representatives will appear here, either as Prosecution witnesses or

14     I shall have, myself, to call some of them.  In addition to the

15     significance of the conduct of the BH army - and we are happy to see that

16     this has been acknowledged - the conduct of all other participants in our

17     war is equally important.  That involves the procurement of weapons,

18     transportation, and delivery and subsequently distribution of weapons

19     throughout Bosnia-Herzegovina.  All of this, of course, contributed to

20     the duration of war.  We would have ended the war much sooner had not

21     only one side been persuaded and convinced that they could have

22     everything.

23             JUDGE KWON:  That's it.  Thank you.

24             I have a very short question for Germany.  Although the practices

25     and standards may vary depending upon the countries -- states and then

Page 766

 1     the fact that one country adopts certain regime does not necessarily mean

 2     that the other countries also follow that.  But just for consistency, in

 3     relation to category 6, Ambassador Laufer, the -- I will not name it,

 4     just in case, my understanding is that some countries are providing with

 5     those -- such documents to the accused or to the Chamber.  So I wonder

 6     whether the thing is that Germany is concerned about its national

 7     security interest or that it has to do with the domestic law which does

 8     not allow co-operation with the Defence?

 9             MR. LAUFER: [Interpretation] Your Honour, we do not have a reason

10     not to co-operate with any parties in the proceedings.  I would like to

11     emphasise that.  For one thing, the motions made by the defendant are not

12     sufficiently detailed.  The defendant wants to have everything, wants to

13     have all the documentation that has ever been written about the various

14     subject matters.  And -- but you can also look at the newspapers or the

15     news agencies.  He can ask for their reports.  What we need -- what we

16     are lacking is the selection mechanism in order to locate the documents

17     that would be relevant, and documents that would be relevant.  But what

18     we've seen so far only just shows that either the government doesn't have

19     such documents, there might be other institutions, or it might be the

20     security services or other agencies.  And secondly, we're not sure that

21     those documents exist and they might be highly classified, top-secret

22     level; hence, we cannot disclose them.  And I've already submitted those

23     two reasons, and in my opinion they still apply.

24             JUDGE KWON:  Thank you, Ambassador Laufer.  The Chamber will

25     confer briefly.

Page 767

 1                           [Trial Chamber confers]

 2             JUDGE KWON:  I see the time.

 3             Ambassador Laufer, if you have anything further to raise, please

 4     do so.

 5             MR. LAUFER: [Interpretation] Your Honour, I would suggest that my

 6     colleague would clarify one matter that has already been mentioned as

 7     well, if you allow him to do so.

 8             JUDGE KWON:  Of course.

 9             Mr. Trautman.

10             MR. TRAUTMAN: [Interpretation] Yes, thank you, Your Honour.  I

11     would like to point out one thing.  The accusation is about Srebrenica

12     and events running it, and as you already asked the Prosecution as to how

13     far there were military activities in Srebrenica.  And the accused

14     himself said in his motion under number 9 of his explanations, has

15     pointed out that Bosnian archives have shown as to how far arms were

16     delivered to Srebrenica.  And in this respect, the motion is not clear

17     because it's -- he always refers to arms being transported to Srebrenica

18     with the help of German troops or NATO troops.  But the question is how

19     far arms have reached Srebrenica, if at all.

20             JUDGE KWON:  Thank you.

21             Mr. Karadzic, do you have anything to raise with respect to

22     Germany?

23             THE ACCUSED: [Interpretation] Unfortunately, I have to express my

24     disappointment.  A study produced by the Dutch government has established

25     that the Turkish and Malaysian members of UNPROFOR had smuggled weapons

Page 768

 1     valued at $15 million --

 2             JUDGE KWON:  Mr. Karadzic, it's not the time for you to repeat

 3     what you said already.  I see the time.  Now I would like to invite the

 4     French representatives --

 5             THE ACCUSED: [Interpretation] Your Honour, may I say a word only,

 6     just one sentence?

 7             JUDGE KWON:  Very well.

 8             THE ACCUSED: [Interpretation] I'm sorry I have to say this, but I

 9     would kindly ask His Excellency, the German ambassador, to bear in mind

10     that both Secretary Warren Christopher, President Clinton,

11     Lord Carrington, and all French high officials have identified Germany as

12     some party which is very much responsible for the events that took place

13     in our country, and I'm going to pursue this line of providing evidence

14     that this is the case.  And I don't know why documents that I requested

15     cannot be provided to this Court without any prejudice or any jeopardy

16     for Germany.

17             JUDGE KWON:  That's it.

18             Ambassador Laufer and Mr. Trautman and Ms. Achilles, thank you

19     for coming to the Tribunal.  Now you may be excused.

20             So --

21             MR. TIEGER:  Your Honour, if I may make one point in response

22     very quickly to a couple of the comments that were made before the

23     representatives of Germany depart.

24             JUDGE KWON:  Okay.

25             MR. TIEGER:  And that's only as a -- taking off on the point that

Page 769

 1     the German representatives were making that there's -- pointing out the

 2     gap between the issue raised by the accused of arms coming into the

 3     country and whether or not they reached Srebrenica.  There's also the

 4     further risk of conflating what was known at the time with what can

 5     potentially subsequently be accused -- be established.

 6             The accused has referred to various perceptions, the perception

 7     of people who were involved in taking hostages, the perception of arms

 8     being present in the Srebrenica enclave before a military operation was

 9     launched.  These documents have nothing to do with that perception; it's

10     what was known at the time that the accused has raised as a gap between

11     these documents that are being sought and what was known.  And we have --

12     we need to avoid a situation, which appears to be present here, where the

13     accused seems to be saying:  If I had only been aware of certain secret

14     documents at the time, that I might have had a basis for launching a

15     legitimate military operation or for a further perception about the

16     status of the people who were taken hostages.  So I urge the Court not to

17     fall prey to that distinction.  The issue is perception at the time, what

18     was known at the time, and not what the accused may subsequently attempt

19     to prove through documentation that he clearly didn't have at the time.

20             JUDGE KWON:  Thank you, Mr. Tieger.

21             Before that I'd like to clarify with the audio/video unit that

22     whether we can go further 50 minutes without any break.

23             THE REGISTRAR:  Yes, Your Honour, we can.

24             JUDGE KWON:  Just briefly, Mr. Karadzic.

25             THE ACCUSED: [Interpretation] There is no secret, as far as we

Page 770

 1     are concerned, that this weapons and this equipment did indeed arrive in

 2     Srebrenica.  That's why these two enclaves were linked, which was

 3     contrary to the agreement on enclaves.  Helicopters used to come to

 4     Srebrenica.  The four documents provided by the Bosnian government only

 5     confirmed the arrival of the weapons in Srebrenica.  As for the question

 6     that His Excellency has asked, whether it had actually arrived, it was

 7     being confirmed by the Bosnian government.  We knew that as well because

 8     this weapons were used to shoot at us and to kill us, and we were aware

 9     of these helicopter flights.  That's why we shot them down.

10             JUDGE KWON:  Thank you.  That's it for Germany.

11             Thank you again, Ambassador Laufer.

12             Now I invite the French representatives.

13                           FRANCE

14             JUDGE KWON:  Good morning again, Mr. Florent, Mr. Villemain,

15     Madam de Matha, and Madam Renault.

16             Mr. Karadzic, in your memorandum of 8th of January this year, and

17     at the last Status Conference, you indicated that you received one

18     document from France but that you believe that France has more documents

19     that should be provided to you.  Also, I understand that you have agreed

20     on the application of Rule 70 conditions to the one document you

21     received.  I'd like to hear from you now that whether there have been any

22     developments since.

23             THE ACCUSED: [Interpretation] Nothing happened in the interim

24     period.  As you know, on the 2nd of June and on the 30th of June and in

25     the beginning of January I wrote about this issue relating to France.  I

Page 771

 1     believe that France was a very important player in our crisis.  They had

 2     a significant presence, particularly in the area of Sarajevo, and their

 3     presence was manifested in a variety of ways.  Even President Mitterrand

 4     visited the airport in Sarajevo, for which we are grateful because by

 5     that he demonstrated that the airport was safe for landing.  This was

 6     followed by 10.000 sorties bringing humanitarian aid which considerably

 7     improved the humanitarian situation in Bosnia.

 8             Generals such as de Lapresle and Gobillard, who are well-known,

 9     were directly and fully informed about the situation.  I think that every

10     single request that I made and every single paragraph contained therein

11     is something that I need to explain further, if necessary.

12             JUDGE KWON:  Thank you.

13             I will give the floor to the representatives of France.

14             MR. FLORENT: [Interpretation] Thank you, Your Honour.  On an

15     introductory note I would like to remark that France and its government

16     has also co-operated and will continue to co-operate with the Tribunal.

17     Our country contributed actively to its inception since we are a member

18     of the UN Security Council.  I would like this to be quite clear from the

19     outset.  As far as we are concerned, we are fully aware of this

20     obligation to co-operate, which is ours pursuant to the Statute of the

21     ICTY and the Rules of Procedure and Evidence of this Tribunal but also as

22     regards the French law which applied to the disclosure of documents in

23     this case.  And according to us, these rules and regulations in France

24     cannot be simply dismissed.

25             Now, as far as the requests and numerous applications are

Page 772

 1     concerned stemming from the accused addressed to France, we have already

 2     provided, I believe, a number of answers.  I believe that these answers

 3     do not seem to satisfy the accused, but as far as we are concerned, we

 4     don't have much to add, Your Honour, in light of what we have already

 5     disclosed in one way or another to the accused through the Tribunal.

 6             As you know, among those applications made by the accused, we can

 7     focus on three types of documents, A, documents which in light of their

 8     diversity and scope and for some of the documents are vague require and

 9     still require on our part documentary research to make sure that these

10     documents exist, if indeed these do.  And category items 1, 4, 5, and 11,

11     as well as item 10, as this has been formulated in the application made

12     by the accused through the Trial Chamber.  The French authorities looked

13     into these requests and conducted researches to that end.  After this

14     research work, we found a document relating to a meeting held by the

15     French Ministry of Defence, American and German ministries of defence in

16     Key West on the 4th and 5th of March, 1995.  This document has been

17     forwarded to the accused through a verbal note on 7th of December, 2009.

18     We had sought protection pursuant to Rule 70 of the Rules of this

19     Tribunal.

20             As far as this category of documents is concerned, we have

21     nothing else to offer at this stage, and in general terms not either, we

22     have nothing else to offer the accused.  There were also a number of

23     requests that according to us were addressed wrongly to France, since

24     these were documents that had to do with international organisations,

25     namely UNPROFOR and third parties, third states, and NGOs.  We feel that

Page 773

 1     since these documents are not French and do not belong to

 2     France - because by definition these are documents that belong to the

 3     United Nations or one or other state - it was not up to France to provide

 4     such documents which are not in its possession.  These were the requests

 5     on -- where the items listed under points 2, 7, 8, 9 of the accused's

 6     application.

 7             Your Honour, there are also a whole series of requests which are

 8     closely linked to a description, locality, and relationships with the

 9     French intelligence services.  On this point we've been extremely clear

10     and I shall remain extremely clear today as far as this issue is

11     concerned.  We feel that it is not for us to forward to the accused or

12     the Tribunal documents which relate to the way in which our intelligence

13     services in France are organised, and we feel we do not need to disclose

14     any documents established by these services.  The disclosure of such

15     information would reveal the nature and scope of France's ability in the

16     field of intelligence services as well as in which place and in what

17     manner these services operate.  This would amount to not abiding by this

18     principle of respecting national security interests, and this

19     substantiates non-disclosure of these documents.  Pursuant to Rule 54 of

20     this Tribunal and in light of the French law, communication of sensitive

21     or confidential information is something we are not able to provide and

22     cannot provide.

23             In sum, as I have said in my opening remark, the French

24     authorities, as is customary, wish to co-operate with your Tribunal but

25     feels that in the present case it has met its obligation pursuant to

Page 774

 1     Article 29 of the Statute in light of the accused's application.

 2             Thank you, Your Honour.

 3             JUDGE KWON:  Thank you, Mr. Florent.

 4             In order to be clear, can I ask you whether it is your position

 5     that there are no further documents to be found with respect to

 6     categories 1, 3, 4, 5, and 11, and partly 10?  So that one document you

 7     disclosed to the accused was the only one that can be disclosed?

 8             MR. FLORENT: [Interpretation] Thank you, Your Honour.  That is

 9     indeed what I have said.  It's the only document that we were able to

10     disclose to the Tribunal.  Thank you.

11             JUDGE KWON:  So my question was if you're not further searching

12     for documents anymore?

13             MR. FLORENT: [Interpretation] We have no ongoing research.

14             JUDGE KWON:  Mr. Karadzic, with respect to the category 5,

15     referring to the meeting in Key West, so are you satisfied with the

16     material provided to you by the French authority?

17             THE ACCUSED: [Interpretation] My associates are in the process of

18     analysing the document and comparing it with the information that we

19     received from other sources.  We will be able to speak about that at a

20     later stage; however, I would like to say that we are grateful to

21     whatever we have received in that respect.

22             JUDGE KWON:  And I now turn to Mr. Florent again.  With respect

23     to items 6, 9, and partly 10, which France said it could not disclose

24     those materials due to security reasons.  So I wonder whether France

25     could advance its argument more specifically, bearing in mind that the

Page 775

 1     Tribunal's jurisprudence on whether states can refuse to produce

 2     documents based on national security reasons.

 3             MR. FLORENT: [Interpretation] Thank you, Your Honour.  As far as

 4     the reasons for which we are not able to disclose potential documents

 5     because I did not say that such documents existed.  I addressed this

 6     issue as a matter of principle.  I explained that the only disclosure, if

 7     any, if these documents exist, would provide information, sensitive and

 8     essential information, to which the French intelligence services operate.

 9     And that is why we feel on the one hand that this has to do very closely

10     with national security interests, and if we apply the Rules of the

11     Tribunal and French law, we feel we have no obligation to disclose the

12     latter.  We are also not convinced of the fact that information of this

13     nature would be exculpatory for the accused.

14             Thank you, Your Honour.

15             JUDGE KWON:  Thank you.  Lastly, the -- as for the documents

16     allegedly originated from third parties, for example, UNPROFOR documents,

17     can I ask whether they are in the possession of French government?

18             MR. FLORENT: [Interpretation] Thank you, Your Honour.  Among the

19     documents that have been requested by the accused as regards the category

20     you've just mentioned, I would like to give you a few examples.  Item 2,

21     for instance, the 15th and 16th of February reports established by

22     General de Lapresle to be addressed to Mr. Akashi, Special Representative

23     of the UN, as regards arms delivery in Tuzla.  It is clear that on

24     reading this request that this report is a report which the French

25     authority were not an addressee and therefore were unaware of since this

Page 776

 1     report was established by a French gentleman, that is right,

 2     General de Lapresle, but this was a document issued by UNPROFOR.  This

 3     was addressed to Mr. Akashi.  Therefore, this report was exclusively an

 4     internal report and belonged to the UN.  There is no reason why this

 5     application should be made and this request be made to France.

 6             As far as item 7 is concerned, we are asked for all reports,

 7     correspondence, and memos relating to UNPROFOR staff, UN military

 8     observers, staff of the UNHCR NGOs between April 1992 with a view to

 9     providing equipment to the Muslims in Bosnia.  There again our answer is

10     likewise.  The same applies to paragraph number 8.  So we feel as far as

11     these various requests are concerned, as I said in my opening remark,

12     Mr. Karadzic addressed it to the wrong person.

13             JUDGE KWON:  Let me be clear again, you do not deny the existence

14     of such documents, do you?

15             MR. FLORENT: [Interpretation] Your Honour, I don't know whether

16     this is a translation issue.  I just indicated that these documents were

17     UN internal documents, which were not addressed to France.  So I don't

18     see how France could be made aware of documents which were solely

19     documents that were internal to the UN.  Thank you.

20             MS. UERTZ-RETZLAFF:  Your Honour.

21             JUDGE KWON:  Yes, Madam Uertz-Retzlaff.

22             MS. UERTZ-RETZLAFF:  Maybe I can be of help in relation to item 2

23     on -- of the request to France.  Many of the requests that were directed

24     to the states were actually also directed to the Prosecution, and the

25     Prosecution did provide the two items mentioned under number 2, and

Page 777

 1     therefore there is no necessity for any other state to search for them

 2     any longer.  Therefore, the accused, whenever we disclose something to

 3     him, we indicate to which of his requests this does relate.  And if he

 4     checks, he can see that a lot of documents he has already received from

 5     the Prosecution and would not -- there would not be any necessity for any

 6     other source to provide that same document.  And it's very clear in

 7     relation to item 2, but it's also in relation to many other items that

 8     were asked from states that he has received quite a number of documents.

 9             JUDGE KWON:  In addition to item 2, can you help us,

10     Madam Uertz-Retzlaff, understand what other materials in respect of other

11     items the accused has received from the Prosecution so far.

12             MS. UERTZ-RETZLAFF:  Your Honour, when we filed our further

13     response to Karadzic motion for postponement of trial, we appended

14     appendix C, and in this appendix you can clearly see which requests were

15     directed to the Prosecution.  They're completely listed there.  And in

16     the appendix A you can also see what we have provided.

17             In relation to France, I can say that we also provided materials

18     in relation to point 5.  We disclosed materials in relation to point 7.

19     We disclosed materials in relation to point 9 -- yeah, these were the

20     ones in relation to France.  Whether the -- whether there exists other

21     documents elsewhere, we of course would not be able to know, but if the

22     accused would check what he has received in relation to certain items, he

23     could easily see whether it's really necessary to get the same documents

24     elsewhere again or whether he need any more documents to a certain topic.

25             JUDGE KWON:  Could you put that into a writing, that --

Page 778

 1     indicating all the documents disclosed by the Prosecution to the accused

 2     that would fall under each item requested by the accused by the binding

 3     order motions, covering all the states.

 4             MS. UERTZ-RETZLAFF:  Your Honour, we can do that, but it will

 5     take a bit of time because it's a lot of materials.  So -- but we can do

 6     that relatively quickly.

 7             JUDGE KWON:  Thank you.

 8             In the meantime I would like to ask Mr. Karadzic as regards item

 9     number 6, as an example, you are requesting documents that would indicate

10     presence of French personnel in various international organs.  Could you

11     explain to us how relevant these documents are to your charges in the

12     indictment?

13             THE ACCUSED: [Interpretation] Yes, thank you, Your Excellence.  I

14     would like to say first and foremost, I have before me the pre-trial

15     brief in which it is stated that joint criminal procedure in respect of

16     Srebrenica depending on whether there were weapons there and whether

17     there had been an attack.  The Prosecution doesn't say whether such a

18     joint criminal enterprise would have happened if Srebrenica had been

19     demilitarised.  France is a friendly state of the Serbian people and of

20     the Serbian state, and it's uncomfortable for me to talk about that here.

21             Your Honours, we agreed to the presence of the United Nations in

22     Bosnia-Herzegovina; however, most Western countries, most NATO countries

23     abused that opportunity and were present in Bosnia and Herzegovina on

24     behalf of their own governments and on behalf of NATO.  I understand and

25     I appreciate that the issue of the functioning of the French secret

Page 779

 1     services are a matter of national security and I'm going to respect that

 2     and I'm going to respect Rule 54 bis and Rule 70.  However, let me say

 3     that not only did some countries have their intelligence services there

 4     illegitimately, without consent, they also had teams for anti-sniper

 5     activity, for the elimination of sharp-shooters, and so on and so forth.

 6     These are all very important matters.  For example, when it comes to

 7     item 6 - and I can tell you the same for each item - the issue of Markale

 8     is very important because the French investigators arrived on site first.

 9     The other incidents around Sarajevo are also important, the sniping

10     activities are also important.  The French government is in possession of

11     the evidence that the Muslims killed their own people by sniping, by

12     other tools in order to accuse the Serbian army.  What could be more

13     relevant?  How else could we establish the truth and pass a sentence if

14     we do not have that evidence as well?  How can we talk about four

15     different joint criminal enterprises that I'm charged with?  I can prove

16     that none of them existed, but how can I do that when such obvious things

17     that we know that the French government has we cannot be provided with.

18             I cannot rely on newspaper articles, as the German ambassador

19     stated.  Newspaper articles, it is indicated that somebody said something

20     or indicated something or confirmed something, but we need documents.

21     The Trial Chamber is certainly not going to accord the same weight to the

22     newspaper article as they will to an authentic document.  You should

23     believe me that several governments had parallel and autonomous presence

24     of important intelligence and active military forces in our country

25     without our consent under the guise of either humanitarian organisations

Page 780

 1     or the United Nations.

 2             In this courtroom we're going to see that nothing was what it

 3     seemed, everything was different.  Journalists, humanitarian

 4     organisations, the United Nations, all of those involved the presence of

 5     things and people that they should not have involved.  We can take items

 6     one by one, but the fact remains and the Excellence has just confirmed

 7     that France and the French intelligence service was present there on

 8     their own behalf and that they have plenty of information.  And we are

 9     kindly asking them to provide us with all that information, and I assure

10     them that all the confidentiality measures will be applied to such

11     information.

12             JUDGE KWON:  I have one clarifying question for the French

13     representatives.  When you said that you were not able to disclose

14     documents related to the categories number 1, 3, 4, 5, and 11, to me it

15     was a bit unclear what it meant.  Are you saying that there are more

16     documents but you are not able to disclose them, or that there are no

17     more documents falling in those categories?

18             MR. FLORENT: [Interpretation] Thank you, Your Honour.  What I

19     have said is that we have conducted research at the time when we were

20     seized of this request filed by the accused and transmitted by the

21     Tribunal.  After this research work, we communicated a document which is

22     mentioned in paragraph 5.  Therefore, we have no other documents to

23     disclose.  Thank you, Your Honour.

24             JUDGE KWON:  Thank you.  The Bench will confer briefly.

25                           [Trial Chamber confers]

Page 781

 1             JUDGE KWON:  I'll give you the floor, Mr. Karadzic, after

 2     having -- after hearing from -- after giving the floor to the French

 3     representatives.  If there's anything to raise at this moment?

 4             MR. FLORENT: [Interpretation] Thank you, Your Honour.  No, I have

 5     no other issue to raise or comment to make.  We have listened carefully

 6     to what the accused has said and we had rather not comment such

 7     developments.  Thank you, Your Honour.

 8             JUDGE KWON:  Thank you, Mr. Florent.

 9             Mr. Karadzic.

10             THE ACCUSED: [Interpretation] Can you hear me, Your Honours?

11             I would just like to point briefly something.  (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 782

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6             MS. UERTZ-RETZLAFF:  Your Honour --

 7             JUDGE KWON:  Yes, Madam Uertz-Retzlaff.

 8                           [Prosecution counsel confer]

 9             MS. UERTZ-RETZLAFF:  I just want to remind the accused that there

10     may be protective measures and he has to be careful when he names certain

11     witnesses here in the courtroom.  He was very careful with other

12     witnesses earlier this morning, and now he's using names.  And that's --

13     he should reconsider.  We will also file something for redactions.

14             JUDGE KWON:  Thank you very much, Madam Uertz-Retzlaff.

15             Please do bear in mind what Madam Uertz-Retzlaff indicated.

16             THE ACCUSED: [Interpretation] Yes, Your Honours, I will do my

17     best.  I will refrain from mentioning names, but it is a fact that there

18     will be a number of high officials, French officials, mainly from the

19     military whose forces were part of the UN forces in Sarajevo and were the

20     first to actually come to the incident sites where incidents were

21     investigated.  And Prime Minister Balladur actually disclosed - this was

22     a public fact - he disclosed that there were documents showing that the

23     Muslims actually attacked their own people.  There is no reason to -- not

24     to disclose that here because it's in public evidence, and we would like

25     to express our gratitude to the French who actually had the stamina and

Page 783

 1     the ethics to actually present facts in contravention of what was

 2     publicly or widely accepted.

 3             And, Your Honour, if necessary I can go through all the items of

 4     my list that relate to the French government and the documents requested

 5     from the French government and I can explain how they're relevant and

 6     significant.  And I even have evidence where the Dutch government and

 7     other very responsible authors actually claim that these documents that

 8     we are seeking actually are in existence.

 9             JUDGE KWON:  Mr. Florent, do you wish to comment?

10             MR. FLORENT: [Interpretation] Your Honour, no, I don't wish to

11     respond to this question directly.  I would just like to thank the member

12     of the OTP for having recalled a number of rules which seemed to have

13     been forgotten by the accused.  I will not address these, but for matters

14     to be quite clear I would like to say that the French general that has

15     just been mentioned by the accused were not there representing France but

16     were there as part of UNPROFOR and that is in that sense that they

17     reacted and reported to UNPROFOR.  This is what I wanted to say.

18             JUDGE KWON:  Thank you, Mr. Florent.

19             Unless there's other matters to raise, that would conclude the

20     hearing with respect to French government.  I thank you for coming to the

21     Tribunal and thank you for your contributions.

22             Now we will have a break of 20 minutes and resume at ten to

23     11.00, with Ambassador of Croatia.

24                           --- Recess taken at 11.31 a.m.

25                           --- On resuming at 12.01 p.m.

Page 784

 1                           REPUBLIC OF CROATIA

 2             JUDGE KWON:  It's still before noon, so good morning to you,

 3     Ambassador Paro, thanks for coming again.

 4             Mr. Karadzic, at the last Status Conference you indicated to the

 5     Chamber that you have been provided with 15 documents requested from

 6     Croatia.  You also expressed the view that they are only a small part of

 7     the requested documents Croatia can provide, and you indicate that you

 8     have not received any response to your letter of 7th January, where you

 9     requested a number of additional documents.  Have there been any

10     developments since that Status Conference in terms of your correspondence

11     with Croatia?

12             THE ACCUSED: [Interpretation] Your Honours, I would like to

13     express my gratitude to Croatia for their goodwill and for the provision

14     of some of the documents, but since the last Status Conference to date we

15     haven't had any new developments.  And the only thing that I would like

16     to add is that Croatia is one of the most significant states or countries

17     which either under pressure from the United States or out of a desire to

18     assist the Muslims was always or was in the fulcrum of all the supplies

19     of weapons and materiel in different ways and, if necessary, I can

20     explain what all those different ways were and I can -- and that is why

21     we feel that Croatia is in possession of the documents that we requested.

22             JUDGE KWON:  Thank you, Mr. Karadzic.

23             Ambassador Paro, I'll now give the floor to you.

24             MR. PARO:  Your Honour, well, I must say that we are not aware of

25     the request of the 7th of January, so such a request has not been passed

Page 785

 1     through the embassy, as it was the case with the other requests, to which

 2     we have responded with 15 documents.  Also I have received the

 3     instruction from my government to say that while we stand ready to

 4     provide more documents if we have those documents, providing also that

 5     the request is more specific.  We don't find the requests specific enough

 6     to conduct an effective search for those documents, but what we have

 7     passed on is what we have in our possession; anything else, we -- other

 8     documents we haven't been able to trace.

 9             JUDGE KWON:  I find this strange that the accused's submission

10     dated 7th January hasn't been served to Croatia yet.  That can be checked

11     out in the meantime.

12             Before that, can I ask the accused whether you are satisfied with

13     the items that you received in relation to categories 7, 9, and 10 of the

14     requested documents?

15             THE ACCUSED: [Interpretation] I have to say that the Defence is

16     really grateful to Croatia more for their goodwill shown rather than the

17     outcome.  We believe that the documents are more numerous and, to be

18     specific, let me say this:  Croatia did not make any remarks at the

19     outset that we weren't precise enough.  For instance, on the 2nd of June

20     and then again on the 30th of June, I addressed a letter to Croatia.  And

21     then on the 27th of July, Croatia replied that it did not have those

22     documents in their possession.  But then later on it turned out that they

23     did.  So this is just by way of illustration.  And we do need to have

24     these documents provided.

25             I have to -- I would like to add that on several occasions

Page 786

 1     Croatia took a very responsible position.  For instance, when the Bosnian

 2     army ordered long-range missiles, Croatia which suspected that this might

 3     involve chemical weapons and weapons that are actually subject to

 4     inspection, in that instance Croatia asked the United States to send an

 5     inspection team before such weapons were to be delivered to the Bosnian

 6     side.  And the Ambassador approved that.  So it is not possible that

 7     Croatia does not have those documents.  Long-range missiles did -- were

 8     supplied to Bosnia and Herzegovina via Croatia, and later on they were to

 9     be used against Croatia.  And Croatia in that instance addressed the

10     United States, seeking inspections, and the inspection was actually

11     conducted.  So there is -- that is as much as I have to say regarding

12     that.

13             There are also numerous meetings with Ambassador Galbraith; with

14     Minister Granic, the then-minister of foreign affairs; with

15     President Tudjman; Nikica Valentic, the prime minister who actually

16     visited Iran on a negotiations mission where they were to determine the

17     best way to supply weapons to Bosnia and Herzegovina.  So it is

18     impossible that such documents are non-existent and I hope that Croatia

19     will find a way and perhaps see their own interests in providing them.

20     And I have to say that even at first glance it would appear that Croatia

21     assisted the Muslims in Bosnia and Herzegovina significantly; but on the

22     other hand, at second glance you can also deduce from that that, in fact,

23     this only prolonged the war.  Although their original intent was to

24     provide assistance, and all of this before the Tuzla airport was opened,

25     all the weapons, ammunitions, and equipment was actually funneled into

Page 787

 1     Bosnia through Croatia.

 2             JUDGE KWON:  Mr. Karadzic, in its submission dated

 3     27th of October, Croatia said that your requests were not specific

 4     enough, and Ambassador Paro reiterated that position again.  So my

 5     question to you is whether you provided -- whether you provided any

 6     material that would -- in order to be more specific in your request.

 7             THE ACCUSED:  [No interpretation].

 8             [Interpretation] Your Honours, there are very precise dates here.

 9     There seems to be some confusion with channels, but it's all right now.

10             There is completely precise information about the meetings.  For

11     instance, the travel and visit by Nikica Valentic, the Croatian

12     Prime Minister at the time, who visited Iran, and there is indicated a

13     date and the week.  I believe it was around 30th of April, 1994.  Then

14     there are meetings with Ambassadors Redmond and Galbraith, meetings with

15     Mr. Holbrooke.  Names are indicated of two American generals who did go

16     to an inspection mission to Croatia.  You can't be more specific.  The

17     only thing we don't know is what they had for lunch; everything else is

18     perfectly obvious.

19             Now, as for categories, the Croatian government should indicate

20     which categories of documents they have, and then we are going to be more

21     specific --

22             JUDGE KWON:  Mr. Karadzic --

23             THE ACCUSED: [Interpretation] Here are the dates, Your Honours.

24             JUDGE KWON:  -- this new item, seven items, are they the ones

25     that would replace your previous request?

Page 788

 1             THE ACCUSED: [Interpretation] I don't think so, Your Honour.  I

 2     believe it's all cumulative and that all the documents need to be

 3     obtained.

 4             JUDGE KWON:  So my question is -- I do not doubt that these

 5     additional requests relating to seven items are not specific enough.

 6     What I referred to as not specific enough by -- cited by the Croatian

 7     authority are related to the previous request.  So what other additional

 8     material did you provide to the Croatian authority in order to help them

 9     find the -- locate the documents with more specific identification?

10             THE ACCUSED: [Interpretation] I believe you're right, in view of

11     the fact that there are dates, places, and persons involved for every

12     item.  For instance, Tuzla, February and March 1995; then the Akashi

13     meeting with a certain general from France, where they informed that

14     fixed-wing aircraft were in Tuzla on the 15th of February; then there is

15     correspondence between France, the United Nations, and other countries,

16     followed by the arrival of Turkish representatives and the visit of

17     Muslim and Croatian representatives to Turkey to negotiate the supply of

18     arms to Muslims; the thing about Key West we received through a different

19     channel.  Then -- I'm sorry, I'm a bit lost in my papers.  But then we

20     have the 31st of March, in fact 10 February to 31st March, some 49 days,

21     a rather narrow time-frame, in which a lot of things happened.  Croatia

22     is certainly aware of the C-130 aircraft shipment to the airport of

23     TuzlaCroatia is also aware of other forms of arms smuggling.  It is

24     indubitably aware of the meeting and correspondence on the 29 April 1994

25     between Ambassador Galbraith, Ambassador Redmond, and President Tudjman,

Page 789

 1     which marked an intensification of American activity.

 2             It is well-known that at the beginning of the war in 1992, the

 3     United States protested, and on the basis of their protest one arms

 4     shipment was seized at the airport.  Later the United States changed

 5     their position in order to encourage and support Croatia, if not even

 6     force Croatia to be more responsive to requests.  Nikica Valentic visited

 7     Tehran in April 1994.  Ali Akbar Velayati, the foreign minister of Iran,

 8     was in Zagreb in May 1994.  Merhamet should be a humanitarian

 9     organisation but it was a cover, in fact, for arms smuggling, and it

10     worked through Croatia.  It had a very important base in Croatia.  So

11     there are five points on which Croatia is very well informed and

12     sometimes involved.  The delivery of arms to Tuzla, Iranian shipments of

13     arms going through Croatia, other forms of arms shipments through the

14     United Nations and humanitarian organisations, and then Croatia knows a

15     lot about the bombing at Markale and it wire-tapped all our

16     conversations.  Croatia had a very good intelligence service and kept all

17     our conversations under surveillance.

18             Croatia needs to tell us exactly which items are insufficiently

19     clear and need to be more specified.

20             JUDGE KWON:  Before I turn to Croatian representative, let me

21     give you an example.  Let's take a look at item number 7 in your -- of

22     your first request, which reads:

23             "All reports, memoranda, cables, and correspondence concerning

24     the delivery, shipment, or use of arms obtained by Bosnian Muslims in

25     violation of the United Nations arms embargo from April 1992 to

Page 790

 1     August 1995 into the United Nations safe areas of Srebrenica, Zepa, and

 2     Gorazde."

 3             Do you not find that a bit broad?

 4             THE ACCUSED: [Interpretation] Only at first glance, Your Honour.

 5     Namely, before the opening of the Tuzla airport, Croatia was a filter and

 6     a transit station for all these arms shipments, and Croatia took part of

 7     these weapons for itself.  They know about each rifle, each bullet, each

 8     uniform, and each pair of boots that arrived, and they have records on

 9     that because it went through them.  After the Tuzla airport was opened,

10     perhaps they don't know everything, but before that they took one-third

11     or one-quarter for their own needs and they must be aware of it.

12             JUDGE KWON:  Now I turn to Ambassador Paro in terms of the issue

13     of specificity.  So if Croatia could suggest what sort of additional

14     specification it needs to conduct its search.  For example, could

15     Croatian authorities not take the same approach they took when they

16     singled out the previous 16 documents from the said web site in searching

17     for the documents in their own database?  Ambassador Paro.

18             MR. PARO:  Your Honour, well, I have just been served with the

19     copy of the defendant's letter of the 7th of January, following the

20     receipt of the Chamber's invitation for this hearing.  So we have seen

21     the reference on this letter and we haven't been able to trace in

22     otherwise quite ordered archives of our embassy receipt of such a letter.

23     So I believe that this letter has never been served to my government.

24     So -- and hence we couldn't have responded to the request in any way.

25             JUDGE KWON:  Yes, we'll look forward to hearing from you on that

Page 791

 1     submission, but we also have the previous request from the accused which

 2     is still pending.  So we'll deal with it as far as we can.

 3             MR. PARO:  Yes.  So you must be aware of the response, and that

 4     is that the document -- the request is not specific enough -- well, it is

 5     always saying "all transcripts, all notes," it's very difficult to -- in

 6     some cases - I'm not talking about this letter of the 7th of January - to

 7     be very precise in trying to focus the documents.  So all transcripts,

 8     all notes, say, for example, here we have all -- all transcripts, notes,

 9     or memoranda of the meetings between Minister Granic and Ambassador

10     Galbraith of the United States at which the possible acquisition of arms

11     from Iran was discussed.  Well, where to look at -- I mean, that's not an

12     easy thing, but I can't tell you what exactly -- what form of request,

13     what explanation should be provided to us in order to find the documents.

14     It's difficult unless we receive such a document -- such a request

15     specified.  So no idea.

16             JUDGE KWON:  On a related issue, in Croatian submission you

17     stated that the interested party will be able to search for such

18     material, as suggested by the Croatian Homeland War Memorial and

19     Documentation Centre.  Could you elaborate on its meaning?

20             MR. PARO:  Not really, no.

21             JUDGE KWON:  Since it is the submission from the Croatian

22     Homeland War Memorial and Documentation Centre?

23             MR. PARO:  I think it is rather clear what they are saying.  So

24     the memorial and documentation centre doesn't have those documents so --

25     or the documents of that kind.

Page 792

 1             JUDGE KWON:  Who does the interested party mean?

 2             MR. PARO:  Well, that is probably -- that refers -- at the

 3     Ministry of Justice who requested the documents, that interested party --

 4     oh, no, well -- I'm sorry, I'm sorry.  The interested party is referred

 5     to the Defence.

 6             JUDGE KWON:  So I was wondering whether the Croatian authority

 7     would offer the Defence to look for the -- search for the document

 8     themselves?

 9             MR. PARO:  Well, it is said that the documentation centre is

10     ready to give the list of documents, the list of documents and pass it on

11     on the -- in their possession and pass it on on the Defence, which I

12     think is rather generous offer.

13             JUDGE KWON:  Thank you.  I will leave that there.

14             Another question for you, Ambassador Paro, is whether Croatia is

15     in a position to inform us whether the rest of the requested documents

16     are in its possession or not.

17             MR. PARO:  We have already stated that the rest of the documents

18     are not in our possession, not as much as we are aware of it.

19             JUDGE KWON:  Do you have any observation to the arguments

20     advanced by the accused on Croatia's possession of requested materials?

21             MR. PARO:  No.  No, I have no comment on that.  Because -- well,

22     those are only presumptions.

23             JUDGE KWON:  Another issue is the Rule 70 conditions.  Is Croatia

24     requesting these conditions pursuant to Rule 70 to apply to the document

25     provided on November -- 9th of November?

Page 793

 1             MR. PARO:  Well, could you be more specific on the Rule 7?

 2             JUDGE KWON:  Rule 70.

 3             MR. PARO:  Rule 70.

 4             JUDGE KWON:  So what kind of conditions do you have in mind

 5     pursuant to Rule 70?

 6             MR. PARO:  Well, I -- I don't know, actually, the Rule 70.  What

 7     does it mean, the Rule 70?

 8             JUDGE KWON:  When you disclose the additional item on

 9     9th of November --

10             MR. PARO:  Yes.

11             JUDGE KWON:  -- the Croatian authority said "it was declassified

12     with limited use."  So I meant to ask you what the limited use would

13     mean.  Are you requesting for some protective measures?

14             MR. PARO:  Yeah, obviously.  Obviously we would not want to --

15     these documents to be made public.

16             JUDGE KWON:  Thank you.

17             And whether you are in a position to indicate to us how much time

18     you would need in order to respond to the letter you just received, dated

19     7th of January?

20             MR. PARO:  Last time when we received a request for the

21     documents, we have been -- we kindly asked the Chamber to give us a

22     reasonable amount of time.  So we are aware of the Court's tight

23     schedule, but I have no specific period of time that we would need for

24     that.  Well, but certainly a reasonable amount of time, a month or so.

25     Because -- well, those requests are rather general and -- and as

Page 794

 1     indicated in our response, the archives are not always very tidy,

 2     especially those that do not concern the developments in Croatia proper.

 3     So probably it would require a bit of time to respond to those.

 4             JUDGE KWON:  Thank you.  The Chamber will confer briefly.

 5                           [Trial Chamber confers]

 6             JUDGE KWON:  Unless there are other matters to raise at this

 7     moment.

 8             Yes, Mr. Karadzic.

 9             THE ACCUSED: [Interpretation] I'm convinced that we must do

10     something about this.  I understand what Croatia is saying, but if I may

11     be of assistance, it would be important for us for someone responsible

12     and high-ranking enough from the Croatian government under oath and on

13     pains of punishment for perjury state that the meetings either did not

14     happen or that they do not have the documents about those meetings.  The

15     Defence cannot accept that the states who should be co-operating do not

16     co-operate simply by saying, "We don't have this."  We don't agree they

17     don't have this.

18             For instance, concerning the 7 January communication, in one item

19     we say Ambassador Galbraith and Ambassador -- and Minister Granic, Iran

20     arms shipments.  We don't need all the documentation.  We just need the

21     few documents concerning Iranian arms shipments between these people.

22     Number 2, Ambassador Galbraith and President Tudjman, the moment when the

23     green light was given for such shipments, that's April 1994 --

24             JUDGE KWON:  Mr. Karadzic, Ambassador Paro stated that they

25     didn't receive this letter, so I take his word and then there's no point

Page 795

 1     of going into detail at this moment.

 2             THE ACCUSED: [Interpretation] I agree, but from the first point

 3     we can see specifically enough.  We see that it's April 1992 to

 4     August 1995, but it's a fact that everything went through Croatia and

 5     Herceg-Bosna until the opening of the Tuzla airport and that Muslims gave

 6     the Croats in Bosna a cut.  So they have to have information about this.

 7             JUDGE KWON:  Ambassador, would you like to respond to this?

 8             MR. PARO:  No, Your Honour.

 9             JUDGE KWON:  Thank you.  Then it would conclude the hearing with

10     respect to Croatia.  I would expect the Croatian authority to do its best

11     to co-operate with us in disclosing the documents requested in accused's

12     letter of 7th January.  Thank you again, Ambassador Paro, for coming to

13     the Tribunal.  Now you are free to go.

14             So let us invite the representatives of Iran.

15             Good afternoon, Mr. Mokhberolsafa.

16                           ISLAMIC REPUBLIC OF IRAN

17             MR. MOKHBEROLSAFA:  Good afternoon, sir.

18             JUDGE KWON:  Just making sure you are following in the language

19     you understand?

20             MR. MOKHBEROLSAFA:  Yes, I will talk in English.

21             JUDGE KWON:  Thank you very much.

22             So far, Iran has not delivered any documents to Mr. Karadzic, and

23     instead has both argued that the requirements of Rule 54 bis have not

24     been met but that it was not in a position to comment on this and ask for

25     further extension of time.

Page 796

 1             MR. MOKHBEROLSAFA:  Yes.

 2             JUDGE KWON:  As a result, the Chamber is not clear on whether

 3     Iran is continuing to search for the documents or not.

 4             So, Mr. Karadzic, in your memorandum dated 8th January, you

 5     stated -- you stated that you're still awaiting a response from Iran, and

 6     during the last Status Conference you were convinced that Iran was in

 7     possession of the requested documents.  Have there been any developments

 8     with respect to Iran since?

 9             THE ACCUSED: [Interpretation] No, Your Honours.  I have

10     understanding for Iran, who find themselves in difficulties and under

11     threat of sanctions, but I thought it would be one more reason for the

12     Iranian government to supply all the documents that they have in their

13     possession.  They had requested several times -- in fact, there was no

14     response to that item.  In three months we have received no reply

15     whatsoever.  I have met all the requirements in terms of voluntary

16     provision, and I would not like to resort to a request for a binding

17     order.  But it is a fact that Iran and the United States were quite in

18     agreement about violating that resolution of the United Nations.  And it

19     would be useful perhaps to remind the whole world and the United States

20     about this.

21             JUDGE KWON:  Now I would give the floor to Mr. Mokhberolsafa, if

22     there's anything to add to what has been stated in your submission.

23     Thank you.

24             MR. MOKHBEROLSAFA:  Yes, I briefly mentioned the statement of the

25     Iranian government in reply to the motion as filed by the accused in this

Page 797

 1     hearing.  Actually, I -- to save time, I'm not going through the

 2     background to the motion.  So I start with the issue of -- the issue that

 3     whether the requirement of Rule 54 bis have been met.

 4             Rule 54 bis stipulates that:

 5             "A party requesting an order under this Rule shall identify as

 6     far as possible the documents or information to which each application

 7     relates.  Furthermore, this party must prove that the documents or

 8     information are relevant to any matter in issue in the proceedings before

 9     the Judge or Trial Chamber and necessary for the fair determination of

10     that matter.  In fact, the requirements set forth in this Rule are

11     qualification of the principles introduced by the Appeals Chamber of the

12     Tribunal in its judgement on the request of the Republic of Croatia for

13     review of the decision of Trial Chamber of 18 July 1997 in

14     Tihomir Blaskic case.

15             As the government of the Islamic Republic of Iran has put forth

16     in its previous notes to the Tribunal, which I draw your -- the attention

17     of the Tribunal to note number 320-4/1711, dated 20 October 2009, the

18     accused has not fulfilled his onus in this respect.  The requested

19     documents and information are ambiguous, very broad in nature, and

20     therefore difficult to be identified.  Also, the documents, if existing,

21     are irrelevant to the case number IT-95-5/18-PT, that the accused is

22     standing trial for.

23             Despite all that, I will now describe briefly the voluntary

24     efforts taken by the Government of Iran to locate and find the documents.

25     In order to extend its highest degree of voluntary co-operation to the

Page 798

 1     Tribunal, the Islamic Republic of Iran transmitted the request of the

 2     accused to its relevant organs.  I would like to officially announce that

 3     the result of the search for the existence and validity of the requested

 4     documents was negative, and there were no materials in the documents that

 5     could be relevant to the charges against the accused.  On the first class

 6     of the requested documents that covered a long period, starting from

 7     1st April 1992 through 31st December 1995, no documents were found in our

 8     archives relevant to the claim raised by the accused.

 9             Furthermore, it is noteworthy that the Islamic Republic of Iran

10     did not have any diplomatic relations with some of the mentioned states.

11     On the second class of the requested documents, the relevant Iranian

12     organs have responded that there is no trace with respect to the cargo

13     manifests of the ships and aircraft after such a long time.  All related

14     documents including the bills of lading and cargo manifests are usually

15     eliminated within limited period of time after the accomplishment of the

16     delivery.

17             Finally, with regard to the last class of the documents, almost

18     all of the documents of the diplomatic relations between the Islamic

19     Republic of Iran and Bosnia and Herzegovina have been screened and

20     reviewed.  I would like to announce that no documents containing

21     materials relevant to the case initiated against the accused were found.

22             Now I submit that the requested documents are not necessary for a

23     fair determination of the case.  One of the axiomatic principles of

24     international law is the distinction between the jus ad bellum and jus in

25     bello.  The first corpus of law is related to a law of the use of force,

Page 799

 1     while the second is regulated -- regulating the conduct of hostilities,

 2     in particular the means and methods which are permissible during armed

 3     conflicts.  Even if one assumes that some states were supplying arms to

 4     the parties in an armed conflict, this fact in no way can justify the

 5     serious violation of international humanitarian law.  Therefore, the

 6     requested documents are not necessary for a fair determination of the

 7     case as a matter of law.

 8             To conclude, for the reasons set out above the Islamic Republic

 9     of Iran is requesting this august Tribunal to reject the request of the

10     accused pursuant to Rule 54 bis.  Thank you.

11             JUDGE KWON:  Thank you, Mr. Mokhberolsafa.

12             In order to be clear, so you are today submitting not only that

13     the requirements of Rule 54 bis have not been met in terms of relevance

14     or necessity, but also that search has been completed on your part and

15     that no documents have been found?

16             MR. MOKHBEROLSAFA:  Based on the instructions I received and

17     statement I just made to the Tribunal, it is my understanding that the

18     search is completed and there is no further searches going on at present.

19             JUDGE KWON:  Thank you.

20             In his motion, the accused cites several publications or articles

21     in order to support his argument that Iran must be in possession of the

22     requested documents because it has been involved in supplying arms to

23     Bosnian Muslims.  So it's -- that I refer to footnote 2 to 8 of his

24     motions.  Can Iran comment on these publications or articles?

25             MR. MOKHBEROLSAFA:  I regret to inform that for the time being we

Page 800

 1     are not able to comment.  We are not instructed to any further comments

 2     on the motion, and it's only limited to the statement which I just made

 3     to the Tribunal.

 4             JUDGE KWON:  Final question for you, Mr. Mokhberolsafa, is that

 5     Iran has also stated that it is not in a condition to comment on the

 6     merits of the request made by the accused.  Could you explain more

 7     clearly what this means.

 8             MR. MOKHBEROLSAFA:  As I'm instructed, that statement was at the

 9     time that the search was not yet completed, but now the search is

10     completed.  It is our understanding that no relevant document has been

11     found.

12             JUDGE KWON:  Thank you.

13             I turn to Mr. Karadzic.  Take a look at item 2 and 3 of your

14     request, and item 1 as well.  Most of them are relating to the events of

15     time-frame in 1992, 1993, and 1994.  How does the supply of arms during

16     that time-period relate to or are relevant to the events in Srebrenica?

17             THE ACCUSED: [Interpretation] Your Honour, I am not accused or

18     charged with the crimes in Srebrenica alone, but also for my political

19     activities starting in 1991 and onwards.  In other words, it is not just

20     about Srebrenica, although the weapons did arrive in Srebrenica although

21     it had already been declared a protected zone.  We -- what I would like

22     to stress here is that we are not accusing Iran and Iran has no need to

23     defend themselves.  Let me put it this way:  If the Prosecutor does not

24     significantly alter the indictment and delete major parts of the

25     indictment, they will actually put me in a position to defend myself --

Page 801

 1     to request more documents in order to be able to provide a defence.

 2             This process cannot -- or these proceedings cannot proceed as

 3     they should if we do not obtain documents from certain countries,

 4     countries that we are not accusing of anything.  Your Honour, loads and

 5     loads of weapons, transports by ship and aircraft, were funneled into

 6     Bosnia from Iran, but they could not have been possible without the

 7     assistance of major players such as the United States or Croatia, which

 8     was the base for its distribution.  And I think I have to reiterate

 9     several things here.

10             First, these countries are claiming that some documents that I'm

11     seeking actually belong or the source of those documents is a third

12     party.  But then I would appreciate it if they could provide us -- if

13     they could point us as to where to search for those documents.  And

14     second, if this is the way it is going to be with the countries that were

15     actors and significant participants in our crisis, then I would

16     appreciate this Trial Chamber to subpoena high officials or to actually

17     request high officials of these countries to state under oath that they

18     do not have the documents that we are requesting.  Because co-operation

19     with the Tribunal is something that is a must, and my conduct, the

20     duration of the war, the fury of the war itself and the resulting crimes

21     that weren't really ordered by the commanders but rather by the chaos

22     that was in place at the time -- so how can these sides, these parties,

23     be excused from providing documents when they were participants in

24     them -- of sorts themselves?

25             So we have to have and find responsibility.  Under items 1, 2,

Page 802

 1     and 3, item 1 is perhaps a bit more general, but 2 and 3 are rather

 2     precise.  There were people who were in place as of 4th September 1994 --

 3             JUDGE KWON:  Mr. Karadzic, unfortunately you fail to answer my

 4     question.  Take a look at item number 2, which includes, for example,

 5     "contents of the Iranian aircraft which landed at Zagreb airport,

 6     Croatia, on 4th of September, 1992; 1st of November, 1992; 4th of May,

 7     1994 ..."

 8             How is this relevant to your case, even if it was done with the

 9     assistance of the United States or any country?

10             THE ACCUSED: [Interpretation] Your Honours, this was done by

11     people of -- who were people, flesh and blood, and who can be invited

12     here to testify as witnesses.  The weapons came from Zagreb, so this was

13     a violation of a UN resolution, flagrant violation of a UN resolution.

14     Secondly, the weapons arrived in Bosnia via UNPROFOR, which in that

15     respect was a warring party, in fact, because it took sides with one of

16     the warring parties.  Through humanitarian organisations - and I don't

17     mean just Merhamet, which was a Muslim humanitarian organisation, but

18     many others who were there -- all of this actually provides a basis to --

19     for the Defence which can demonstrate that the charges put forth by the

20     Prosecution are not as they seem.  Because if you look at my pre-trial

21     brief, I question there whether if all of these things had not happened,

22     would all of the crimes that are later -- that the Serbs are later

23     charged with occurred at all.  If there had been no attacks from the

24     protected zone, would there have been a response?  So -- and if this was

25     a legitimate response.  And if there is no evidence that this would have

Page 803

 1     happened had it not been actually provoked by vicious crimes coming from

 2     the protected zone, then we should show -- we have to be able to show

 3     that there is no evidence for this charge in the indictment.  And the

 4     Serbian side was put in a position to defend their very survival and to

 5     act in a situation in which it was put, and not in fact to plan in

 6     advance all these crimes as the indictment and the Prosecutor claims.

 7     And if the charges remain, we have to have all these documents in order

 8     to be able to provide our defence.

 9             JUDGE KWON:  The Chamber will confer.  One moment.

10                           [Trial Chamber confers]

11             JUDGE KWON:  Is there anything further to raise,

12     Mr. Mokhberolsafa?

13             MR. MOKHBEROLSAFA:  No, I have nothing to add.

14             JUDGE KWON:  Mr. Tieger?

15             MR. TIEGER:  I'm sorry, Your Honour, just to get it on the

16     record, no, thank you.

17             JUDGE KWON:  Mr. Karadzic?

18             THE ACCUSED: [Interpretation] No, Your Honour, except that I hope

19     that the Trial Chamber will actually protect my right to defend myself.

20             JUDGE KWON:  Well, then that concludes today's hearing.  Thank

21     you all very much for your attendance.  The Trial Chamber expresses its

22     gratitude for all submissions that have been made.  We will consider them

23     and give a decision in due course.  Thank you.

24             The hearing is now adjourned.

25                           --- Whereupon the Motion Hearing

Page 804

 1                           adjourned at 12.58 p.m.