Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7961

 1                           Friday, 15 October 2010

 2                           [Rule 54 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 10.02 a.m.

 6             JUDGE KWON:  Good morning, everybody.

 7             Would the Court Officer please call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.

 9             This is case number IT-95-5/18-T, the Prosecutor versus Radovan

10     Karadzic.

11             JUDGE KWON:  Today we are holding a hearing to discuss a binding

12     order motion filed by the accused on 31st August 2009, wherein he

13     requests a number of documents from Bosnia and Herzegovina which he says

14     are relevant to his case.

15             The procedural history behind this motion is somewhat lengthy and

16     complex, and both the accused and Bosnia have filed a number of

17     submissions in relation thereto.  Nevertheless, the progress has been

18     slow, and the motion remains pending.  Accordingly, the Chamber

19     determined that it would be helpful to hear from the representatives of

20     Bosnia and the accused at an oral hearing.

21             We are, therefore, sitting today in the presence of the accused,

22     the Prosecution, and a representative of Bosnia.  I would like to thank

23     the Bosnian representative, on behalf of the Chamber, for her attendance

24     and contribution to this hearing.

25             To introduce the Chamber, I'm Judge O-gon Kwon, presiding in this

Page 7962

 1     case, and to my right, Judge Howard Morrison, and to my left,

 2     Judge Melville Baird, and to my far right, Judge Flavia Lattanzi.

 3             First, I would like to ask the representative of Bosnia to

 4     identify herself by name and title for the record.

 5             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

 6             My name is Miranda Sidran Kamisalic, and I'm ambassador of Bosnia

 7     and Herzegovina.

 8             JUDGE KWON:  Thank you, Your Excellency Madam Sidran Kamisalic.

 9             Can I have the appearance from the Defence?

10             Mr. Karadzic, could you introduce your team.

11             THE ACCUSED: [Interpretation] Gladly, Your Excellency.

12             The team leader is myself, and along with me are my advisers,

13     legal advisers, Mr. Peter Robinson and Mr. Marko Sladojevic.

14             JUDGE KWON:  Thank you.

15             Could the team of standby counsel introduce themselves, please.

16             MR. SINGH:  Your Honour, on behalf of Richard Harvey, stand by

17     counsel, is myself, Avi Singh, along with Eric Tully.  Much obliged.

18             JUDGE KWON:  Thank you, Mr. Singh.

19             Can I also have the appearance for the Prosecution, please.

20             MR. TIEGER:  Good morning, Mr. President, Your Honours, and

21     everyone in the courtroom.

22             Alan Tieger, Susanne Elliott, and Iain Reid for the Prosecution.

23             JUDGE KWON:  Thank you, Mr. Tieger.

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

25     matters that should be addressed.

Page 7963

 1             As you know from the scheduling order issued on 13th of October

 2     this year, following my opening remarks, I will ask the accused a number

 3     of questions and we will then proceed to do the same with Madam

 4     Sidran Kamisalic.  Following those questions, the participants will have

 5     an opportunity to raise any other issues relating to the binding order

 6     motion that they feel should be covered during this hearing.

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

 8     private or closed-session hearing.  Given that many of the filings in

 9     relation to this hearing are public, and no notice of objection pursuant

10     to Rule 54 bis (F) has been filed by Bosnia, the Chamber has decided that

11     it will proceed in public session until a specific issue requiring us to

12     go into a private session arises.  Therefore, it is for you, Madam

13     Sidran Kamisalic, to notify the Chamber if you believe we have reached

14     that point, and the Chamber will then consider whether a private session

15     is necessary.

16             For your information, Madam Kamisalic, if the Chamber decides to

17     go into private session, those watching the hearing in the public gallery

18     will not be able to hear what is being said in the courtroom, nor will

19     the hearing be broadcast to the public.  In addition, those portions of

20     the transcript that are in private session will not be available to the

21     public.  Indeed, only the parties and the state concerned will receive a

22     copy of those portions of the transcript that are in private session.

23             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

24             I think we have reached that point and that we consider that the

25     private session is not necessary.

Page 7964

 1             JUDGE KWON:  Thank you very much, Madam Ambassador.

 2             There's one further matter.

 3             As you know, the Chamber has invited the Prosecution to attend

 4     this hearing.  Unless the accused or Madam Sidran Kamisalic request the

 5     discussion of a particular issue or document to be heard ex parte, i.e.,

 6     in the absence of the Prosecution, the Prosecution shall be here

 7     throughout the hearing and shall have access to the transcript of those

 8     hearings.

 9             I would like to know whether there are any objections to that

10     from Madam Ambassador or the accused.

11             Mr. Robinson.

12             MR. ROBINSON:  We don't object, Mr. President.

13             MS. SIDRAN KAMISALIC:  Not at all.

14             JUDGE KWON:  Thank you.

15             Finally, before we begin, I would, nevertheless, encourage the

16     participants to focus on the main points of contention, rather than

17     outlining all of the arguments already made in the written filings.  All

18     submissions are to be addressed to the Chamber, and we will give the

19     appropriate party the opportunity to respond when necessary.

20             So we will begin with the accused.

21             Instead of putting specific questions, could you, Mr. Karadzic or

22     Mr. Robinson, update the Chamber in an overall manner.

23             MR. ROBINSON:  Yes, Mr. President.

24             I think Dr. Karadzic would like me to do that, so I'll answer

25     that part of it.

Page 7965

 1             JUDGE KWON:  Yes, please.

 2             MR. ROBINSON:  Mr. President and members of the Trial Chamber, we

 3     began this odyssey of trying to obtain documents from the Government of

 4     Bosnia in June of 2009, when we sent them a letter asking for eight

 5     specific items relating to arms smuggling into Tuzla in February and

 6     March of 1995.  The factual basis for that is that in February of 1995, a

 7     Norwegian Battalion soldier who was stationed in Tuzla for the UN noticed

 8     that a delivery has been made from a C-130 transport to the area of the

 9     Tuzla Airport, and people were dispatched from the UN and were

10     encountered by armed members of the Bosnian Army, who refused them access

11     to the area where the shipment had taken place.  A subsequent

12     investigation by the United Nations indicated that military supplies and

13     arms had been delivered clandestinely on that occasion and that the

14     no-fly zone and the arms embargo had been subverted so that these

15     military supplies and equipment did reach the Bosnian Muslim Army.  And

16     we want to know who it was that the Bosnian Muslim Army obtained these

17     materials from.  And so with that in mind, we made our request.  We

18     received no response.  We asked the Office of High Commissioner to use

19     his powers to encourage the Government of Bosnia to produce these

20     documents.  We had no response to that, and so we filed our motion for a

21     binding order on the 31st of August of 2009.

22             The Chamber knows the history since then, but it's very difficult

23     to un-puzzle the various responses from the Bosnian Government, and we've

24     tried to do that.  And with respect to those documents that we asked for

25     relating to Tuzla, the bottom line is that the Ministry of Defence said

Page 7966

 1     that they could find three documents relating to one of our six requests

 2     and couldn't find any relating to four others of the six requests, and

 3     they made no searches as to two of our requests, saying that those items

 4     would likely have been in the possession of other organs of the Bosnian

 5     Government.  And to this date, no searches that we can tell have ever

 6     been made for those two requests.

 7             We also have reason to doubt that the search conducted by the

 8     Bosnian Ministry of Defence was a correct and thorough search because two

 9     of the items that they said they couldn't find have been subsequently

10     produced to us by the Prosecution, who received them from the Bosnian

11     Government.  So we know that they had those documents in their archives,

12     they gave them to the Prosecutor, but when it came to responding to our

13     request, they said they didn't have any such records.

14             And so we believe that, at this stage, the binding order should

15     be granted, because we have made all efforts possible to obtain the

16     co-operation of the Government of Bosnia as to these items, we have made

17     a request that is sufficiently specific, and the material is relevant and

18     necessary for our defence.

19             And I point out that in your decision relating to a motion for

20     binding order for Germany, these very same issues have already been

21     adjudicated, and you granted, by majority, our motion for binding order.

22             So it's our submission that at least as to these five outstanding

23     items, that a binding order motion should be granted so that the

24     Government of Bosnia is now compelled to produce those materials and to

25     make a thorough and diligent search, and to be accountable if they don't

Page 7967

 1     produce the materials.

 2             We also had made a request, by letter, in January of 2010, for

 3     five additional items, hoping that the co-operation that we could receive

 4     would be sufficient to allow production of those documents without the

 5     necessity of making a motion for a binding order.  And as to those

 6     documents, the correspondence from Bosnia seems to indicate that no

 7     searches have ever been made to look for those documents.  And at this

 8     stage we don't ask the Chamber to do any particular thing with respect to

 9     those items because they're not the subject of our motion for a binding

10     order, but we will conclude that we haven't been able to obtain voluntary

11     co-operation, and we'll probably file a motion for a binding order as to

12     those items in the future.

13             So I'm happy to answer any questions you might have, but that's a

14     general overview of where we stand.  Thank you.

15             JUDGE KWON:  Although you indicated the Chamber is not seized of

16     a binding order in relation to the additional documents, Mr. Robinson,

17     can you explain how those documents described therein fit into your

18     motion and satisfy the Rule 54 bis criteria?

19             MR. ROBINSON:  Yes, Mr. President.

20             For that question, I would like to ask Dr. Karadzic to answer

21     that, because we discussed this before the hearing and he's in the best

22     position to give you an answer to that.

23             JUDGE KWON:  I take it that you are feeling well, better,

24     Mr. Karadzic?

25             THE ACCUSED: [Interpretation] Up to a point, yes, Your Honour,

Page 7968

 1     sufficiently so to be able to participate today.

 2             JUDGE KWON:  If you could address the Court in relation to that

 3     matter.  I hope -- I understand that you understood the question.

 4             THE ACCUSED: [Interpretation] Yes.  Thank you, Your Excellency.

 5             This is how it is:  The fact is that in Bosnia-Herzegovina,

 6     especially in Sarajevo, there were very many events which are

 7     interconnected either as cause or effect.  A lot of information was

 8     concealed for purposes of war propaganda, but as there is now a trial

 9     going on, this information has to be made available.

10             In Sarajevo, there were two special police units which were

11     always engaged in combat.  This is the Laste Special Unit and the Bosna

12     Special Unit.  From the documents of the Muslim Army, that is, the Army

13     of Bosnia and Herzegovina, we can see clearly that these units were

14     constantly engaged in combat and were attached to the 1st Corps.  At the

15     same time, these units, especially the Laste, were engaged in liquidating

16     Serbs and Muslims in Sarajevo.  One of these groups attempted an

17     assassination of Sefer Halilovic, who had been the commander-in-chief of

18     the Army of Bosnia-Herzegovina, and killed his wife and brother.  They

19     ascribed this to a Serb shell.  However, General Halilovic happened to

20     survive, and he denied that this had been done by the Serbs.  He said it

21     had been done by this group.

22             There were three men in the Laste unit who had a tragic end,

23     Major Herenda and Major Dukan [phoen] who founded the unit.  They

24     investigated each other, tortured each other and, in the end, liquidated

25     each other.  There's also Garaplija.

Page 7969

 1             So if we are asking for this Defence to present to this Chamber

 2     what the Laste unit did to their co-citizens of all ethnicities, then

 3     Bosnia-Herzegovina has to co-operate, because these materials will show

 4     that very frequently incidents that were ascribed to the Serbs were, in

 5     fact, committed by somebody else.

 6             Your Excellency, if we have not a shred of information that in

 7     Srebrenica, as of April 1992, up to July 1995, anyone died a natural

 8     death but all victims are ascribed to the Serbs, we have the right to

 9     request the records of births and deaths and the death certificates,

10     showing who died under what circumstances.

11             Srebrenica municipality, up to July 1995, had its seat in

12     Srebrenica, whereas the Muslim municipalities of Bratunac, Vlasenica and

13     elsewhere had their seats in Tuzla.

14             JUDGE KWON:  You can stop there.  I will come to those materials

15     later on.

16             But in relation to the first category you referred to, my real

17     question is how those materials or events would be relevant to your case

18     or charges in the indictment.  Could you be more specific?

19             THE ACCUSED: [Interpretation] Yes.

20             Numerous incidents of individual murders in Sarajevo, and also

21     multiple murders, were never ascribed to these groups.  They were always

22     ascribed to the Serbs.  These groups, however, were very active, and they

23     were celebrated in the town of Sarajevo.  So when investigations began,

24     there are records to show what they did.  However, many of the things

25     they did are ascribed to us and are found in my indictment.

Page 7970

 1             JUDGE KWON:  Could you give us an example of those individual

 2     victims that could be found in your indictment?

 3             THE ACCUSED: [Interpretation] I can only speak in general terms

 4     because I don't have this information before me now.  However, it is a

 5     fact that these groups assassinated people, liquidated people, in the

 6     streets.  They bombed buildings.  And it's a fact that the whole picture

 7     of the terror committed against the citizens in Sarajevo looks different

 8     when we take this into account.  There are no sniper incidents against

 9     civilians on the Serb side, and these documents will show what the Muslim

10     police established in relation to the activities of these two groups.

11             JUDGE KWON:  Very well.

12             In relation to or with respect to the second category of

13     documents, which are, for example, copies of all BH federal judicial

14     decisions, certificates regarding missing people and people declared to

15     be dead, or copies of all death certificates and/or copies of any list of

16     all killed soldiers, these documents seem to the Chamber, Mr. Karadzic,

17     to be the kind of documents that might be in the possession of the

18     Prosecution.  An example would be the copies of death certificates from

19     various municipalities which may have been used by the Prosecution's

20     expert on demography.  Have you attempted liaising with the Prosecution

21     in relation to some of these documents?  And if so, what was the outcome

22     of that?

23             I think Mr. Robinson can address this.

24             MR. ROBINSON:  Yes, Mr. President.

25             I believe we have made Rule 66(B) requests for this type of

Page 7971

 1     material, and we've received some of this material through the

 2     International Commission on Missing Persons; maybe not exactly in this

 3     form.  But I believe that -- and I could be corrected, if I'm wrong, by

 4     Mr. Tieger, but I believe we had made some Rule 66(B) requests for

 5     records of the deaths of people at least in the area of Srebrenica.

 6             JUDGE KWON:  Mr. Tieger, do you have any observation to make in

 7     relation to this submission?

 8             MR. TIEGER:  Just a couple, Your Honour.

 9             First, I'm virtually certain that no request of this particular

10     breadth was made to the Prosecution.

11             Second, a great deal of material related to deaths of victims

12     has, indeed, been provided to the Defence in the context of disclosure

13     related to experts and some 66(B) requests.  Insofar as I'm aware, there

14     was no specific Rule 66(B) request of the nature that Mr. Robinson just

15     mentioned that is related to Srebrenica, but I'm happy to double-check on

16     that.

17             JUDGE KWON:  So whether or not there's a specific 66(B) --

18     Rule 66(B) request, so could you take a look into the matter so that you

19     could assist the Defence in getting those materials.

20             MR. TIEGER:  Just so there's no lack of clarity, I would be quite

21     confident that the Prosecution would not -- I mentioned there was no

22     request of this breadth, and similarly I'm confident the Prosecution

23     would not have the death certificates of every municipality or everyone

24     who died in the period 1992 through 1995.

25             JUDGE KWON:  Thank you.

Page 7972

 1                           [Trial Chamber confers]

 2             JUDGE KWON:  Now turning to Bosnia, as I have said earlier, the

 3     progress in relation to the accused's binding order motion has been very

 4     slow.  It appears to the Chamber that this is largely due to Bosnia's

 5     often unsatisfactory co-operation with both the accused and the Chamber.

 6     The responses filed by Bosnia are almost always filed late and, more

 7     often than not, are somewhat confusing and ambiguous, thereby making it

 8     impossible for the accused and the Chamber to proceed without further

 9     clarification, which once again only prolongs the progress.

10             I also note that it appears that different state authorities have

11     not been communicating properly or efficiently with one another, giving

12     the impression that Bosnian authorities are not taking this matter

13     seriously or that the way in which this matter is being dealt with is

14     somewhat disorganised or even bureaucratic.

15             For example, I note that, according to the filings before the

16     Chamber, the Presidency has never even acknowledged, let alone acted on

17     the recommendation of the Council of Ministers to appoint a person who

18     would be responsible for dealing with the Tribunal in relation to these

19     matters.

20             Madam Ambassador Sidran Kamisalic, would you like to comment on

21     any of these observations?

22             MS. SIDRAN KAMISALIC:  Thank you, Mr. President.

23             Mr. President, Your Honour, I would like to read my statement in

24     Bosnian.

25             [Interpretation] At the outset, I would like to emphasise the

Page 7973

 1     full commitment of Bosnia and Herzegovina to co-operate with the

 2     International Criminal Tribunal for the former Yugoslavia.  We are

 3     prepared, as so far, to act as soon as possible in the interests of

 4     justice and the interest of parties and states to continue this

 5     co-operation, completely aware that we are co-operating under Article 29

 6     of the Statute, and our own full commitment which is evident in our own

 7     legislation.

 8             The authorities of our country are fully committed to full

 9     co-operation.

10             JUDGE KWON:  Madam Ambassador, what you're saying has to be

11     translated into a working language of the Tribunal, so if you could slow

12     down a little bit.

13             So could you start from the part which refers to the authorities

14     of your country are fully committed to full co-operation.  Thank you.

15             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

16             [Interpretation] And they have not a single reason not to

17     co-operate, emphasizing that, on the contrary, they have the highest

18     possible motivation to provide all the possible information and

19     documents, and to take any other activities and measures to translate

20     that co-operation into practice, again, for the purposes of achieving

21     justice.

22             We wish to co-operate actively with the Tribunal, and we believe

23     that up to this moment we have done everything in our power.

24             Sometimes the imprecision of the accused's requests makes our

25     searches difficult.  The accused wants access to the broadest ranges of

Page 7974

 1     documentation, notes and reports.  It is also necessary to facilitate

 2     these searches for Sarajevo and to categorise material according to

 3     relevance for the case.

 4             It sometimes seems like the accused has certain knowledge that is

 5     not shared by the authorities in Bosnia and Herzegovina.  The requests

 6     need to be made more specific and questions need to be addressed to

 7     individual, specific institutions of the authorities.

 8             Bosnia and Herzegovina is, by no means, avoiding its obligation

 9     to co-operate with the ICTY, and specifically it is not avoiding its

10     obligation to conduct searches for all the information requested and to

11     make that information available.  Teams have been formed in individual

12     organs of our government, the Council of Ministers, and other competent

13     organs and authorities, which conduct searches in our archives with a

14     view to meeting the requests of the accused and facilitating the work of

15     the Trial Chamber in this case.

16             At the Ministry of Defence, a team has been set up whose job was

17     to search through the entire documentation and archives.  A large number

18     of the required documents are very probably already in the archives of

19     this Tribunal because they were necessary in previous cases.

20             As for earlier requests and the large number of questions

21     addressed by the accused to Bosnia and Herzegovina, we have already

22     provided part of the answers and part of the material requested.  To save

23     time, I will not repeat which documents they are, because we have these

24     papers in front of us now.  All these documents have been provided in the

25     form of authorised copies.

Page 7975

 1             Also, the Ministry of Defence of Bosnia and Herzegovina provided,

 2     on 15th February this year, information that all the relevant documents

 3     they had had been provided under a previous search from November 2009,

 4     accompanied by a letter from the Ministry of Justice, relating to

 5     evidence found in the archive depot of the Army of Bosnia-Herzegovina.

 6             As for the two subsequent letters that you've just mentioned, we

 7     received them at the Embassy of Bosnia and Herzegovina in The Hague and

 8     responded to this Tribunal by a diplomatic note conveying the position of

 9     the Ministry and minister of justice of Bosnia and Herzegovina, the

10     latter stating that the Defence of the accused needs to be told that he

11     should request the collection of evidence from Bosnia and Herzegovina

12     through the ICTY.

13             The state Ministry of Justice, in its document of the 12th of

14     February, 2010, informed that it had acted very promptly on all the

15     requests for documentation in this case, and from the competent

16     authorities, the Ministry of Defence and the Prosecutor's Office of

17     Bosnia and Herzegovina, it requested action in these searches for

18     documentation.  It has received feedback that apart from the material

19     already delivered, they do not have any more from the list of requests.

20             In March of this year, the accused asked the Trial Chamber again

21     to issue a binding order to the Government of Bosnia and Herzegovina

22     especially with regard to the issue you mentioned in your introduction.

23     The information the Ministry of Defence provided covered all the

24     activities it had conducted so far and the measures it had taken, because

25     they had asked the Joint Staff of the Armed Forces of Bosnia and

Page 7976

 1     Herzegovina to look into the archives and, after doing that, to provide

 2     the requested documentation if found in the archives.

 3             On the activities taken and their outcome, on the 16th of April,

 4     2010, the Ministry of Defence informed the Foreign Ministry and, through

 5     diplomatic channels, this Tribunal as well, that pursuant to a document

 6     of the Joint Staff of the Armed Forces of Bosnia and Herzegovina and a

 7     document of the Information and Security Sector of the Army of Bosnia and

 8     Herzegovina, and after a detailed search in the archives of the General

 9     Staff of the Republic of Bosnia and Herzegovina, which owns the archival

10     depot of the Army of BH and the Federation Army of the BH, as well as the

11     records of archives stored, it was established that the requested

12     documentation is not there.

13             Also, in April 2010, the Ministry of Security of Bosnia and

14     Herzegovina provided an answer to the Ministry of Internal Affairs of the

15     Federation of Bosnia and Herzegovina, this being the authority competent

16     to keep the documentation from the relevant period.  The federal MUP

17     informed that their archives contain nothing of the requested

18     documentation.  All this was preceded by a long series of activities

19     taken by the ministry.

20             The Police Administration of the federal MUP has also taken a

21     number of activities.  Meetings were held with the representatives of the

22     field office of the ICTY in Sarajevo.  From the Intelligence and Security

23     Agency of Bosnia and Herzegovina, from cantonal ministries of internal

24     affairs, from the Sector for Police Support and Administration of the

25     federal MUP, it was requested that any documentation that could be of

Page 7977

 1     assistance to the Trial Chamber and that is requested by the accused

 2     should be urgently provided, if in existence.

 3             On the 29th of April, 2010, the Council of Ministers of Bosnia

 4     and Herzegovina held its 120th session, where it was acquainted of the

 5     activities of the Ministry of Justice relevant to the case Prosecutor

 6     against Radovan Karadzic, and it was concluded as follows:  The Ministry

 7     of Justice and the Prosecutor's Office of Bosnia and Herzegovina are

 8     tasked to look for documentation mentioned in items 1, 2, 4, 5 and 6, and

 9     to provide it to the Prosecutor's Office as soon as possible.  The

10     Ministry of Foreign Affairs is tasked that at the request of the Embassy

11     of Bosnia and Herzegovina in the Netherlands, it should provide

12     additional clarification and instructions.  The Ministries of Defence,

13     Security, Foreign Affairs, and the Prosecutor's Office are required to

14     provide any relevant documentation to the Ministry of Justice within 10

15     days of that session.  Also, at the request of the Embassy of the BH in

16     the Netherlands, and as required, they are also tasked with providing

17     clarification and instructions.

18             The Ministry of Justice is tasked with providing all the

19     necessary documentation and reports and activities undertaken in Bosnia

20     and Herzegovina to this Tribunal and the Embassy of BH in the

21     Netherlands.

22             These conclusions, therefore, specify the institutions which are

23     required to invest additional efforts to collect and provide the Ministry

24     of Justice with the requested documentation in this case.

25             The Ministry of Justice of Bosnia and Herzegovina, acting on the

Page 7978

 1     request of the Tribunal, and on the conclusions of the Council of

 2     Ministers of Bosnia and Herzegovina, required the competent institutions

 3     to provide the necessary information, and received the following replies:

 4             A.  The Ministry of Defence of Bosnia and Herzegovina, in

 5     document 13-4-0 -- -2871-12608, emphasizes that they acted on certain

 6     items of the request on the 5th of November this year and have no other

 7     documentation because such information is not found in the archival depot

 8     of the Ministry of Defence.

 9             B.  The Prosecutor's Office of Bosnia and Herzegovina provided

10     the Ministry of Justice with document A-378/10, dated 20th May, 2010,

11     emphasizing that they do not have in their possession or any knowledge

12     about the documentation requested.

13             C.  The Ministry of Security of Bosnia and Herzegovina did not

14     provide the Ministry of Justice with the documentation collected under

15     these conclusions, except for the fact that on the 18th of June, 2010,

16     this ministry received a copy of the document whereby the Ministry of

17     Security directly provided to the Ministry of Foreign Affairs the replies

18     of the federal Ministry of Internal Affairs and the state Agency for

19     Investigations and Protection.  From the answers received, it is obvious

20     that the federal MUP had undertaken a variety of activities to search for

21     the requested documentation, while the state agency is unaware which

22     documentation it is.

23             On the 13th of July, 2010, the Ministry of Justice again asked

24     the Ministry of Security to invest additional efforts and provide

25     information on the availability of the requested documentation to satisfy

Page 7979

 1     the requests of the Tribunal.  The answer is still pending.

 2             On the 14th of June, 2010, the Ministry of Justice developed a

 3     report on all the activities undertaken.  And attached to this report,

 4     the Ministry of Foreign Affairs received reports from the Ministry of

 5     Defence and the Prosecutor's Office.

 6             Mr. President, I believe that a report on our activities, which

 7     is still underway, provides the answers to the questions posed.

 8             JUDGE KWON:  Just one clarification, Madam Ambassador, is that

 9     all the efforts you referred to seemed to be related to the first set of

10     documents which was raised by the accused's motion on the 31st of August

11     last year.  However, in relation to the second set of documents, which

12     was raised in his motion of 7th of January this year, were they included

13     in this search and various reports of the various organs of your

14     government?

15             MS. SIDRAN KAMISALIC:  The additional questions posed in the

16     letter from the 7th of January, isn't it?

17             JUDGE KWON:  Yes.

18             MS. SIDRAN KAMISALIC:  Your Honour, as I have mentioned earlier,

19     we have received those two letters, the one dated 7th of January, 2010,

20     and also the other one received, dated 22nd February 2010, only through

21     the representatives of the Defence, and I have informed that the Ministry

22     of Justice of Bosnia and Herzegovina has advised our embassy in The Hague

23     to inform the Tribunal, which we did when we sent the note verbale to the

24     Tribunal on the position of the Ministry of Justice that the Defence

25     should communicate with the embassy through this Court.

Page 7980

 1             JUDGE KWON:  Thank you.  You made it clear, during your

 2     submission, that all these documents should have been provided in the

 3     form of -- no, through the -- yes, the Defence of the accused needs to be

 4     told that he should request the collection of evidence from Bosnia and

 5     Herzegovina through the ICTY.

 6             However, Madam Ambassador, it is our practice that the Chamber or

 7     the Tribunal should be involved as a last resort.  Until then, we

 8     encourage the state authorities to co-operate on a voluntary basis either

 9     with the Prosecution or with the Defence.  So that's why we are just

10     conveying the letter -- just acknowledged the letter from the Defence

11     sent to the state organs.  So if you could convey to the relevant

12     authorities of your nation that the Chamber is expecting a voluntary

13     co-operation on a voluntary basis.

14             So I take it that in relation to the second batch of documents,

15     there has been no search or finding yet.  I stand corrected if I'm wrong,

16     Madam Ambassador.

17             MS. SIDRAN KAMISALIC:  Exactly.

18             JUDGE KWON:  Thank you.

19             And to be clear, and in relation to the first batch of documents,

20     there are still some searches going on in relation -- in specific organs,

21     but, overall, the search has been complete and there are no documents to

22     be disclosed.  Is my understanding correct, Madam Ambassador?

23             MS. SIDRAN KAMISALIC:  Your Honour, yes, that's correct.

24             JUDGE KWON:  And how about this one:  Has there been any response

25     from the Presidency as to the appointment of a person responsible for

Page 7981

 1     handling this matter?

 2             MS. SIDRAN KAMISALIC:  Your Honour, until yesterday, no.

 3             JUDGE KWON:  Madam Ambassador, in your observation, what could be

 4     done in order to ensure that this is done?

 5             MS. SIDRAN KAMISALIC:  Your Honour, I'm convinced that the

 6     Presidency will make such a decision very soon.

 7             JUDGE KWON:  Thank you.

 8             Bear with me a minute.

 9                           [Trial Chamber confers]

10             JUDGE BAIRD:  Madam Ambassador, you mentioned that you believe

11     your report on your activities, which is still underway, would provide

12     the answers to the questions posed.  Can you help the Chamber as to when

13     that report might be available?

14             MS. SIDRAN KAMISALIC:  Thank you.

15             The report that we have provided today is the report on our

16     activities until now.  And as soon as the activities are completed, and

17     this, we expect, will develop and end in a reasonable time, we will duly

18     inform the Court.

19             JUDGE BAIRD:  "A reasonable time."  Any idea as to how long a

20     reasonable time would be?

21             MS. SIDRAN KAMISALIC:  Your Honour, a reasonable time could be

22     considered one month from today, I suppose.

23             JUDGE BAIRD:  Thank you very much.

24             JUDGE KWON:  Madam Ambassador, in the meantime I was able to dig

25     out our decision in relation to the second batch of documents inviting

Page 7982

 1     Bosnia to respond, which was issued 1st of March this year, and I take it

 2     it was served to your embassy and your government, in which we said we

 3     invited the Bosnian Government to assist the Trial Chamber by providing

 4     the following by close of business of 22nd of March, 2010:  Number 1, a

 5     response to the accused's letter; and, number 2, a response to the

 6     questions listed in Annex A to that invitation.

 7             One further -- there are some further questions.

 8             As for the documents which were already provided to the accused,

 9     Bosnia has indicated in its correspondence that those were confidential.

10     Could you clarify with us the meaning of that confidentiality?  In

11     particular, to use the ICTY jargon, whether Bosnia is asserting that

12     Rule 70 conditions should be applied to those documents.

13             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

14             Yes, Your Honour, we should consider those documents that are

15     marked as confidential from the respective -- that came from the

16     respective authorities of my country as such, according to the Rule 70.

17             JUDGE KWON:  So by referring to Rule 70 conditions, what specific

18     conditions does the Bosnian Government have in mind?

19             MS. SIDRAN KAMISALIC:  Your Honour, we were -- it was not

20     clarified to me at -- which specific conditions.

21             JUDGE KWON:  So if you could let us know in due course after the

22     hearing, in writing, please.

23             Another question is this: whether Bosnia has any observation on

24     the requirements of Rule 54 bis, and whether the accused's motion meets

25     them, in relation to both documents requested in the motion and those

Page 7983

 1     requested in the follow-up request.

 2             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

 3             We don't have any further requests.

 4             JUDGE KWON:  This relates to the legal requirements of

 5     Rule 54 bis, i.e., the binding order.

 6             MS. SIDRAN KAMISALIC:  Yes.

 7             JUDGE KWON:  So whether those documents are relevant and

 8     necessary to the determination of this case, et cetera.  So my question

 9     is whether the Bosnian Government has any observation to make in relation

10     to those requirements.  So if you could take a look at that issue and

11     come back to us, if any, in writing, please.

12             MS. SIDRAN KAMISALIC:  Yes, Your Honour.

13             Thank you very much for that suggestion.  We will do.

14             JUDGE KWON:  Could the Court Officer approach the Bench -- the

15     Legal Officer.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE KWON:  I wonder whether you are in the position to tell us

18     whether there has been any further response from the federal MUP and the

19     federation Police Administration on this issue.

20             MS. SIDRAN KAMISALIC:  Your Honour, my last communication was

21     yesterday, and until yesterday, we didn't have anything new on our

22     tables.  Thank you.

23             JUDGE KWON:  Thank you.

24             Are there any further issues to raise?  Mr. Robinson.

25             MR. ROBINSON:  Yes, Mr. President.

Page 7984

 1             If I could just be heard on a few matters that the ambassador

 2     addressed in reply, would that be permissible?

 3             JUDGE KWON:  Yes, Mr. Robinson, please proceed.

 4             MR. ROBINSON:  Thank you, Mr. President.

 5             First of all, I'd like to thank the ambassador and the Chamber.

 6     I think that some of the issues have been clarified by her statement and

 7     by your questions to her, so that we have a much better understanding of

 8     where we stand at present.

 9             First of all, I think, with respect to our first request of the

10     five outstanding items, I would note that the Ministry of Defence never

11     looked for two of those items, and those items are all minutes reports,

12     notes, or memoranda of a meeting between a representative of the

13     Government of Bosnia and any representative of the Governments of the

14     United States or Turkey, or private individuals or organisations from the

15     United States, at which shipments of arms, ammunition, or military

16     equipment that were delivered to Tuzla was discussed during the period of

17     1 January through 31 March 1995.  And the other item is that all

18     contracts, agreements, or reports, or memoranda reflecting agreements for

19     the purchase of arms, ammunition, or military equipment by the Government

20     of Bosnia or any individuals affiliated with that government, which were

21     delivered in whole or in part to Tuzla by C-130 transport during February

22     and March 1995.  And the Ministry of Defence took the position that those

23     records would not be in its possession, and so they didn't look for them,

24     but there's been no evidence that the parties that are likely to have

25     such records have looked for them.  And that would be the Ministry of

Page 7985

 1     Foreign Affairs and the Presidency, which would have been the entities

 2     most likely to have been negotiating for the delivery of those arms.

 3             And so we don't believe that, with respect to the items that have

 4     been looked for, that those searches have been conducted thoroughly and

 5     completely, and we would encourage the Government of Bosnia to do that

 6     before making its final report or response to the Chamber.

 7             With respect to the items that were not looked for, I think that

 8     as part of the Tribunal's out-reach efforts, which are considerable in

 9     Bosnia, somebody needs to explain the doctrine of equality of arms to the

10     Bosnian Government, because they give documents to the Prosecution

11     freely, without any intervention by the Chamber, and refuse to give that

12     same procedure -- make the same procedure available to the Defence.  And

13     that's simply wrong, and I hope somebody can educate them so that that

14     can be corrected in the future.

15             Secondly, I would notice that you did, as you pointed out,

16     request, as a Trial Chamber, that the Bosnian Government look for those

17     documents that were contained in our letter, and they never did that.

18     And so I don't think that the co-operation of the Government of Bosnia

19     has been satisfactory as we stand here today, and I hope that this

20     hearing would have the effect of making it satisfactory so that in the

21     future we can receive the documents that we're entitled to receive.

22             And, finally, we think it's important that the Chamber issue a

23     binding order, even in the face of the statement that no records have

24     been found, so that if we find that, in fact, those records have existed

25     - and we do intend to keep investigating and keep looking - that somebody

Page 7986

 1     can be held accountable for that representation, and so that the

 2     mechanisms of Rule 7 bis and perhaps Rule 77 can be effected against

 3     individuals or the Government of Bosnia in the event that it's determined

 4     that they have not sufficiently looked or that they have found but not

 5     produced documents which were covered by that request.

 6             Lastly, Mr. President, if I could just address one point, and

 7     it's a legal point, regarding the relevance and necessity of the

 8     materials relating to the arms smuggling in Tuzla.  And I do this with

 9     the hope of bringing you around to a view that was shared by your

10     colleagues in connection with the Germany application.  And in your

11     dissenting opinion, you said that you cannot see how establishing that

12     some UN personnel were involved in arms smuggling to Bosnia could

13     potentially change the status of UN personnel, as a whole, into active

14     participants in the hostilities, and you agreed with the Prosecution that

15     you thought that what was relevant was that the specific UN peacekeepers

16     who were taken hostage had been involved in -- or had perhaps had the

17     status of combatants, and I would just ask you to consider that, for

18     example, among two warring parties, if one warring party were to, let's

19     say, overrun an observation post and come across a bunch of people in

20     uniform who were not at that moment taking part in the hostilities but

21     they were soldiers of the other party, they would be entitled to take

22     those people as prisoners of war without any evidence, simply by the fact

23     that they were members of the armed forces of that party, without any

24     evidence that they, themselves, had participated in any military

25     activities or were actively engaged in combat.  And we think that that

Page 7987

 1     same principle will apply if the UN personnel are considered to be

 2     combatants by virtue of arms smuggling or other activities on behalf of

 3     one side to the conflict, that it's not necessary for us to establish

 4     that the particular individuals who were taken prisoners of war or

 5     hostages, depending on your point of view, were, themselves, engaged at

 6     that moment or even at any time in the hostilities, themselves.

 7             So I would ask that you take a look at that, and perhaps that

 8     could eliminate some of your reservations that you had on the issue of

 9     relevance and necessity of these arms smuggling documents.

10             Thank you very much.

11             JUDGE KWON:  Thank you, Mr. Robinson.

12             Madam Sidran Kamisalic, do you like to respond, if any?

13             MS. SIDRAN KAMISALIC:  Thank you, Your Honour.

14             I took note of these remarks, and at this occasion I would not

15     comment.  Thank you very much.

16                           [Trial Chamber confers]

17             JUDGE KWON:  Thank you very much for your attendance.

18             The Chamber expresses its gratitude for all the submissions that

19     have been made, which we will consider before deciding on the most

20     appropriate course of action in relation to the motion, in light of all

21     the circumstances.  And I look forward to receiving the report from

22     Bosnia as soon as possible.

23             The Rule 54 bis hearing, the binding order motion hearing, is

24     adjourned for now, but we can continue --

25                           [Trial Chamber and Registrar confer]

Page 7988

 1             JUDGE KWON:  The hearing is now adjourned.

 2             We'll resume for the proper hearing, to discuss some matters,

 3     we'll resume after the break.  That is, we'll resume at 11.35 to discuss

 4     whether we should go on or not.

 5             We'll rise.

 6                           --- The Rule 54 bis hearing is concluded

 7                           at 11.08 a.m.