Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13862

 1                           Tuesday, 10 May 2011

 2                           [Open session]

 3                           [Rule 54 bis Motion Hearing]

 4                           [The accused entered court]

 5                           --- Upon commencing at 4.02 p.m.

 6             JUDGE KWON:  Good afternoon, everyone.

 7             Will the Court Officer please call the case.

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

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

10     Radovan Karadzic.

11             JUDGE KWON:  Thank you.

12             Could I have the appearances for the Defence first.

13             THE ACCUSED: [Interpretation] Good afternoon, Excellencies.  Good

14     afternoon to everyone.

15             You know me.  It is quite clear.  With me is Mr. Peter Robinson,

16     my legal adviser, and I believe that there is someone from Mr. Harvey's

17     team as well.

18             JUDGE KWON:  Yes.  Can I have separately the appearances for the

19     stand-by counsel?

20             MS. VUKAJLOVIC:  [Interpretation] Good afternoon, everyone.  On

21     behalf of the standby team, Mr. Eric Tully and Mirjana Vukajlovic.

22             JUDGE KWON:  Thank you.

23             Appearances for the Prosecution, please.

24             MR. TIEGER:  Good afternoon, Mr. President, Your Honours.

25             Alan Tieger, Susanne Elliot, and Iain Reid appear for the

Page 13863

 1     Prosecution.

 2             JUDGE KWON:  Thank you, Mr. Tieger.

 3             I would now like to ask the representatives of the

 4     Bolivarian Republic of Venezuela to identify themselves by name and title

 5     for the record, please.

 6             MS. MADAH: [Interpretation] Good afternoon.  Haifa Aissami Madah,

 7     Ambassador of the Bolivarian Republic of Venezuela and before the Kingdom

 8     of the Netherlands.

 9             MR. D'SANTIAGO:  [Interpretation] Thank you, Mr. Chairman.

10             Alfonso D'Santiago, director of Multilateral Treaties of the

11     Ministry of Foreign Relations.

12             JUDGE KWON:  If you could also introduce your colleagues who

13     accompany yourselves today.

14             MS. MADAH: [Interpretation] Yes, of course.  We'll be pleased to

15     do so.

16             We have with us Dr. Jose Gabriel Ponce [phoen], assistant of the

17     Judicial Office of the Ministry for Foreign Relations of Venezuela;

18     further, Mr. Jose Angel Bucarello, assistant minister of the Embassy in

19     the Netherlands; Mr. Milton Mesa [phoen], assistant minister of the

20     Embassy of Venezuela for or vis-a-vis the Netherlands.  Thank you very

21     much.

22             JUDGE KWON:  Thank you, Your Excellency.

23             Today, we are holding a hearing to discuss primarily a binding

24     order motion filed by the accused, Mr. Karadzic, on 1st of November,

25     2010, in which he requests a number of documents from Venezuela relating

Page 13864

 1     to the testimony of the upcoming witness, Ambassador Diego Arria which he

 2     says are relevant to his case.

 3             For the purpose of today's hearing, let us call this motion as

 4     "Venezuela Motion."

 5             While Venezuela, having been invited to do so twice by this

 6     Chamber, eventually responded to the motion on 28th of December, 2010,

 7     stating that it was taking necessary steps to locate the required

 8     information, no progress has been made since then.  Indeed, on 31st of

 9     January, 2011, the Chamber invited Venezuela to provide an update on its

10     activities, but did not hear back.  Thus, progress has been very slow,

11     and the motion remains pending.  Accordingly, the Chamber determined that

12     it would be helpful to hear from the representatives of Venezuela and the

13     accused at an oral hearing.

14             I should note that the accused has also filed another motion for

15     a binding order against the United Nations, requesting certain documents

16     also relating to Ambassador Arria.  Let us call this motion, for the

17     purposes of today's hearing, as "UN Motion."

18             As the parties are aware, the United Nations is of the view that

19     it may not disclose some of these documents without breaching the duty of

20     confidentiality it owes to Venezuela, and that the accused should,

21     therefore, seek Venezuela's consent for the release of the documents in

22     the United Nations' possession.  The accused has done so, but has

23     received no response from Venezuela on this issue.

24             On 15th of April this year, the Chamber invited the

25     representatives of the United Nations to attend the hearing, but the

Page 13865

 1     United Nations indicated that it did not feel this was necessary, and

 2     elected, rather, to rely on its written submissions contained in its

 3     previous correspondence.  Therefore, we are sitting today in the presence

 4     of the accused, the Prosecution, the standby counsel, and the

 5     representatives of Venezuela.

 6             I would like to thank the Venezuelan representatives, on behalf

 7     of the Tribunal and this Chamber, for their attendance and their

 8     contribution to this hearing.

 9             To introduce the Trial Chamber to the representatives of

10     Venezuela, I am Judge O-gon Kwon, Presiding Judge in this case, and to my

11     right is Judge Howard Morrison, and to my left is Judge Melville Baird,

12     and to my far right, Judge Flavia Lattanzi.

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

14     matters that should be addressed.

15             As you know from the scheduling order issued yesterday, following

16     my opening remarks, I will ask the Defence to update us on the progress

17     in relation to his two motions against Venezuela and the United Nations,

18     and we'll then proceed to ask Venezuelan representatives a certain number

19     of questions.  Following these questions, the participants will have an

20     opportunity to raise any other issue relating to the two binding order

21     motions that they feel should be covered during this hearing.

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

23     private or closed-session hearing.

24             Given that many of the filings in relation to this hearing are

25     public and that no notice of objection, pursuant to our Rule, has been

Page 13866

 1     filed by Venezuela, we have decided that we will proceed in public

 2     session until a specific issue requiring us to go into a private or

 3     closed session arises.  Therefore, it is for the Venezuelan

 4     representatives to notify the Chamber if they believe we have reached

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

 6     is necessary.  If the Chamber decides to go into private session, those

 7     watching the hearing in the public gallery will not be able to hear what

 8     is being said in the courtroom, nor will the hearing be broadcast to the

 9     public.  In addition, those portions of transcripts that are in private

10     session will not be available to the public.  Indeed, only the parties

11     and the state concerned will receive a copy of those portions of the

12     transcript that are in private session.

13             There is one other matter.

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

15     this hearing.  Unless the accused or the Venezuelan representatives

16     request that discussion of a particular issue or document to be heard

17     ex parte, i.e., in the absence of the Prosecution, the Prosecution shall

18     be here throughout the hearing and shall have access to the transcripts

19     of the hearing.  I, therefore, would like to know if there are any

20     objections to that from the Venezuelan representatives and/or from the

21     accused.

22             None from the accused.

23             Madam Aissami Madah.

24             MS. MADAH: [Interpretation] On the part of the Bolivarian of

25     Venezuela, there is no objection whatsoever.  Thank you very much.

Page 13867

 1             JUDGE KWON:  Thank you, Your Excellency.

 2             Then I would like to hear from the Defence first.  I take it that

 3     it will be Mr. Robinson that will make submissions in relation to these

 4     motions.

 5             MR. ROBINSON:  Mostly, yes, Mr. President.

 6             JUDGE KWON:  So if you could update us as to any progress since

 7     your last submission to the Chamber in relation to these two motions.

 8             MR. ROBINSON:  I'm sorry to say there's been no progress.  I

 9     don't have anything additional to report.

10             JUDGE KWON:  Even from the United Nations?

11             MR. ROBINSON:  That's correct.  We received the same

12     communication that you did, that they didn't choose to attend this

13     hearing, and we've had no other communication with them about this

14     matter.

15             JUDGE KWON:  Thank you, Mr. Robinson.

16             Then turning now to Venezuela:  As I have said earlier, the

17     progress in relation to the accused's binding order motion and the

18     related matter of consent to disclosure of documents by the

19     United Nations has been very slow.  The one response filed by Venezuela

20     was late, and following that the Chamber heard nothing for months,

21     despite several invitations extended to Venezuela to update the Chamber

22     on the progress it was making in relation to the motion.  So before we

23     come to the subject-matter of today's hearing, I wonder if the Venezuelan

24     representatives would like to comment on any of these observations.

25             MS. MADAH: [Interpretation] Thank you, Mr. Chairman.

Page 13868

 1             I would like to begin by informing you of the following:  The

 2     Bolivarian Republic of Venezuela greets the honourable tribunal

 3     responsible for persecuting those who have committed violations in the

 4     area of Yugoslavia in 1991, and we thank you for the opportunity to speak

 5     before this Trial Chamber.

 6             In that respect, I would like to give the floor to

 7     Dr. Alfonso D'Santiago, whom we have already introduced to you before.

 8     He is the director of Multilateral Treaties of the Judicial Unit of the

 9     ministry in charge of foreign relations of the Bolivarian Republic of

10     Venezuela, who will be presenting the official and formal point of view

11     of my government as regards the subject matter of this hearing.

12             MR. D'SANTIAGO: [Interpretation] Thank you, Mr. President.

13             Mr. President, I would like to read my statement in Spanish.

14             Mr. President, Honourable Judges of the Tribunal, first of all, I

15     would like to say hello on behalf of the Government of the Bolivarian

16     Republic of Venezuela.  It's an honour to be at this Tribunal, at this

17     hearing, to inform you on what the Government of the Bolivarian Republic

18     of Venezuela has done to meet the request to provide documents by the

19     accused, Radovan Karadzic.

20             On behalf of my government, let me give you the arguments of my

21     country.

22             First of all, I would like to state that the Bolivarian Republic

23     of Venezuela is fully committed to co-operating with this Court, based on

24     general international law and on Article 29 of the Statute of the

25     Tribunal, and this within the limits of Article 54 bis of the Rules of

Page 13869

 1     Procedure and Evidence.  In this respect, my government is determined to

 2     taking action as soon as possible, voluntarily and based on the principle

 3     of good faith --

 4             THE INTERPRETER:  Could the speaker be asked to slow down a

 5     little, please.

 6             JUDGE KWON:  Excuse me, Dr. D'Santiago.

 7             You are being asked by the interpreters to slow down when reading

 8     the document.  So if you could repeat from your government is determined

 9     to taking actions as soon as possible.

10             MR. D'SANTIAGO: [Interpretation] Yes.  I apologise,

11     Mr. President.

12             So in this respect, my government is determined to taking action

13     as soon as possible, voluntarily and based on the principle of good

14     faith, in the interests of justice.

15             The Bolivarian Republic of Venezuela should say that the request

16     of the accused refers to a pretty broad period of time.  And in addition

17     to that, it refers to very old documents.  Therefore, looking for those

18     documents, finding them, and compiling them has been extremely difficult,

19     because the archives are not the archives we use daily.  However, my

20     government is making all the efforts possible to find those documents.

21             We also would like to add that because of the tragedy that

22     Venezuela has undergone because of the heavy rain we had in November

23     2010, during which over 120.000 people were left homeless, my country has

24     had to devote very valuable human and financial resources to be able to

25     confront this tragedy.  So public offices has been used as shelters to

Page 13870

 1     temporarily house many of those people.  Offices and archives have had to

 2     be moved.  What I've just said has made it extremely difficult to locate

 3     and compile the documents requested by the accused.

 4             Moving on to other things regarding the legal aspects of the

 5     request, I would like to point out the following:  For my country, the

 6     request of the accused, in his letter of 18 October 2010, which was

 7     addressed to the Embassy of the Bolivarian Republic of Venezuela in

 8     The Hague, does not comply with the Rules of Procedure, of Article 54 bis

 9     of the Rules of Procedure and Evidence, because Mr. Diego Arria, in

10     addition to having been permanent representative of Venezuela at the UN,

11     was also the president of the Security Council during one month.

12             Article 54 bis, which we've mentioned, provides that the

13     applicant should identify, to the extent possible, the documents or the

14     information requested.  However, my country considers that the accused's

15     request does not take into account the fact that during March 1992, the

16     documents produced by Ambassador Arria, in his capacity as President of

17     Security Council, does not belong to the Bolivarian Republic of

18     Venezuela, but belongs to the United Nations.  Therefore, the accused's

19     request includes providing documents which do not belong to my country

20     and which my country might not have.  Therefore, in our opinion, the

21     requirement of identifying the documents covered by the Article is not

22     complied with.

23             We should also recall that the accused made a similar request to

24     the UN.  He requested a broad range of documents produced by Diego Arria,

25     former permanent representative of Venezuela to the United Nations,

Page 13871

 1     during the period between January 1st, 1992, and September 1st, 1993.

 2     During that period, my country was a non-permanent member of the

 3     Security Council of the United Nations.

 4             And related to this, we should remember that in its response, the

 5     international organisation has provided arguments to the Tribunal

 6     according to which revealing certain categories of documents could

 7     compromise the principle of confidentiality, which is inherent to the

 8     decision-making process of the Security Council.  That would be the case

 9     for documents which are based or which refer to informal consultations.

10             My country is reasonably concerned by providing documents which

11     could make reference to those informal consultations and which could,

12     therefore, violate the principle of confidentiality and undermining the

13     meaning of the Security Council's debates.

14             What I've just said led our authorities to co-ordinate and

15     consult with the UN in order to decide with that organisation the

16     criteria to determine the documents which can be provided to the accused

17     respecting, at the same time, the principle of confidentiality.

18             Mr. President, I am glad to inform you that after these

19     consultations, my country recently reached an agreement with the

20     Legal Affairs Office of the United Nations.  Based on the agreement, my

21     country has committed to working with that organisation to identify the

22     documents that may be handed over.  Therefore, and because of the

23     importance our country attaches to the requests from the Tribunal,

24     Venezuela has appointed an official who will work closely in New York

25     with the person responsible at the Legal Affairs Office at the UN in

Page 13872

 1     order to identify those documents.

 2             Mr. President, with that same spirit, the same spirit in which my

 3     country has expressed its willingness to co-operate with this Tribunal,

 4     and to conclude the search process, the compilation process, and the

 5     analysis process of the requested documents, we would like to inform this

 6     Tribunal that the Bolivarian Republic of Venezuela hopes to meet the

 7     request in this procedure in a time-frame which would be between three

 8     and five months.

 9             Taking into account the arguments which have been submitted, and

10     to conclude, the Bolivarian Republic of Venezuela considers very

11     respectfully that this Court needs not issue an order to enforce the

12     accused's request, since it is doing everything it can to voluntarily

13     respond to that request.

14             Thank you very much, Mr. President and Judges of the Tribunal.

15             JUDGE KWON:  Thank you, Dr. D'Santiago.

16             Let me be clear in understanding your submission.

17             I just heard that the search process will have been concluded in

18     three to five months from now on.  Separate from that, whether the

19     Bolivarian Republic of Venezuela will consent to the disclosure of

20     documents in custody of the United Nations, you submitted that as a

21     result of consultation, an appointed official will work within OLA in

22     determining whether or not to disclose the document.

23             How long will that process take?  When can we hear from you

24     whether or not you consent to the disclosure of those documents?

25             MR. D'SANTIAGO: [Interpretation] Thank you, Mr. President.

Page 13873

 1             As Venezuela has said in its statement, at this time Venezuela

 2     has started the co-ordination process with the UN to search for the

 3     documents.  We think the process is divided up into three stages: search,

 4     compilation, and analysis of the documents.  We believe that that

 5     time-period, three to five months, would be the period necessary to

 6     provide the documents so we would be co-ordinating with the

 7     United Nations before that dead-line is met.  As I said, the maximum

 8     dead-line to provide the documents would be of five months, just as I

 9     said in the statement a few minutes ago.

10             Thank you, Mr. President.

11             JUDGE KWON:  Thank you, Dr. D'Santiago.

12             Before we move forward, we may be assisted by hearing from

13     Mr. Tieger, when we would expect to hear Ambassador Diego Arria's

14     evidence.

15             MR. TIEGER:  Thank you, Mr. President.

16             Based on the time-line identified by Dr. D'Santiago, I think that

17     presents no problem.  We would not expect the testimony of Mr. Arria

18     until the Srebrenica component of the case, and, therefore, I think the

19     three- to-five-month anticipated period would expire well before his

20     anticipated testimony.

21             JUDGE KWON:  Thank you, Mr. Tieger.

22                           [Trial Chamber confers]

23             JUDGE KWON:  Mr. Robinson, do you have any observation to make in

24     relation to this submission?

25             MR. ROBINSON:  Just very briefly, Mr. President.

Page 13874

 1             First of all, we're happy to hear that the Government of

 2     Venezuela will be co-operating with the Tribunal and will be providing

 3     the documents.  And as long as we receive them in enough time in advance

 4     before Ambassador Arria's testimony, then that will be okay with us.

 5             However, I find that there may be some ambiguities in the way

 6     things are proceeding that may cause further delays beyond the three to

 7     five months, particularly the issue of consent, so I think that we need

 8     to resolve the question of whether or not there are any categories of

 9     documents which either Venezuela or the United Nations will not consent

10     or will not produce to us.  And we can have those issues litigated well

11     before the three to five months so that finally whatever documents we do

12     receive are received in a timely fashion before the testimony of the

13     ambassador.

14             Thank you.

15             JUDGE KWON:  But I wonder whether we can hear those answers today

16     at this hearing.

17             MR. ROBINSON:  No, I don't think so, Mr. President.  I think also

18     we need to hear from the United Nations.  So the issue of disclosing the

19     informal consultations of the Security Council is one that involves both

20     Venezuela and the United Nations.  I would note that Ambassador Arria,

21     himself, in his statement, has disclosed those, and I believe that

22     there's good grounds for the United Nations and Venezuela also being

23     willing to disclose those.  But until we hear some official position from

24     them, I don't think we're in a position for you to make a decision on

25     that.

Page 13875

 1                           [Trial Chamber confers]

 2             JUDGE KWON:  So I take it, Dr. D'Santiago, that it is Venezuela's

 3     position that Venezuela will liaise with the United Nations on this issue

 4     directly, without involving the Chamber, and then inform the accused and

 5     the Chamber of the outcome once the inspection and consultation have been

 6     finished.

 7             MR. D'SANTIAGO: [Interpretation] Yes.  Yes, Mr. President.

 8             JUDGE KWON:  And you also heard the submission from Mr. Robinson,

 9     so could you bear that in mind in having consultation with the

10     United Nations.

11             MR. D'SANTIAGO: [Interpretation] Yes, Mr. President, we will take

12     into account what the Defence just said.

13             JUDGE KWON:  I wonder whether there is any matters to be raised

14     by any of the parties?

15             MR. ROBINSON:  No.  Thank you, Mr. President.

16             JUDGE KWON:  Mr. Tieger.

17             MR. TIEGER:  No, Mr. President.  Thank you.

18             JUDGE KWON:  Ambassador Aissami Madah or Dr. D'Santiago, are

19     there any matters to raise at this moment?

20             Yes, Doctor.

21             MR. D'SANTIAGO: [Interpretation] Yes, Mr. President.

22             Venezuela would like to clarify the fact that in many documents

23     and some documents, we've seen that reference is made to Mr. Diego Arria

24     as "Ambassador Arria from Venezuela" or "Ambassador Arria."  My

25     government would like to inform the Tribunal that Mr. Arria was

Page 13876

 1     ambassador -- Venezuela's ambassador between 1991 and 1993, and he no

 2     longer worked for the Foreign Office as of September 1st, 1993.

 3     Therefore, the delegation of Venezuela would like to request the Tribunal

 4     that it refers to Mr. Arria as "Ex-Ambassador Arria" or "the former

 5     representative of Venezuela to the UN."

 6             Thank you, Mr. President.

 7             JUDGE KWON:  Thank you.

 8             MR. ROBINSON:  Mr. President, if I could just comment that from

 9     what we're used to, there's a few titles, when you have them once, they

10     last forever, and "Ambassador" and "General" are some, and we've only

11     been referring to "Ambassador Arria" out of --

12             JUDGE KWON:  Out of courtesy.

13             MR. ROBINSON:  Out of custom, yes.

14             JUDGE KWON:  Thank you, Dr. D'Santiago.

15             Three months from now will be the 10th of July, and five months

16     will be the 10th of September.  In our Tribunal, we'll have a summer

17     recess until sometime middle of August, so I wonder if the

18     Bolivarian Republic of Venezuela could do its best to produce their final

19     report before we resume after the recess; that is, Monday, the 15th of

20     August.  That will be about a bit more than four months' time from now

21     on.  And if that is not feasible, I would appreciate it very much if

22     Venezuela could produce a progress report at three months' time from now

23     on, i.e., on 10th of July, whether we can expect a report from Venezuela.

24     Would that be possible, Dr. D'Santiago?

25             MR. ROBINSON:  Mr. President, it's actually two months between

Page 13877

 1     now and the middle of July, but --

 2             JUDGE KWON:  Oh, I'm very sorry.  I was mistaken.  I was carried

 3     away, probably.

 4             Yes.  Let me consult the calendar again.  Yes, three months from

 5     now is 10th of August, and five months is 10th of October.  So whether

 6     my -- my statement was whether we could receive the response from

 7     Venezuela by 10th of September, and if not feasible, whether we could

 8     expect a progress report by 15th of August, when we resume after the

 9     summer recess.

10             MR. D'SANTIAGO: [Interpretation] Thank you, Mr. President.

11             Regarding your request, the delegation of Venezuela is not in a

12     position to provide an exact reply, but we will make our best efforts to

13     give you a satisfactory response.

14             Thank you, Mr. President.

15             JUDGE KWON:  So at the minimum, we expect Venezuela to respond or

16     to make a report by 10th of November, which is five months from now.  I'm

17     sorry, October.  Yes, October, 10th of October.  But more than that, we

18     also expect the Venezuelan authorities to expedite their proceedings so

19     much so that they could produce the report by 10th of September.

20     Otherwise -- 10th of September, four months' time.  But if that is not

21     feasible, Venezuela should make a progress report on 15th of August.

22     I think we can agree on that.

23             MR. D'SANTIAGO: [Interpretation] Yes, we would do that,

24     Mr. President.  We will do what you requested.

25                           [Trial Chamber confers]

Page 13878

 1             JUDGE KWON:  To make things clear, a written order will follow

 2     after this hearing.

 3             The hearing is now adjourned.  Have a nice afternoon.

 4                           --- The hearing concluded at 4.38 p.m.