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
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
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
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
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
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
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
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
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
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
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
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
5 often unsatisfactory co-operation with both the accused and the Chamber.
6 The responses filed by Bosnia
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
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
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
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
7 document of the Information and Security Sector of the Army of Bosnia and
8 Herzegovina
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
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
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
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
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
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
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
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
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
5 Herzegovina
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
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
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
14 United States or Turkey
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
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
21 delivered in whole or in part to Tuzla
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
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
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.
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