Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12047

1 Thursday, 13th January, 2000

2 [Ex parte hearing-Prosecution]

3 [Closed session]

4 --- Upon commencing at 9.35 a.m.









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Page 12050

1 [Open session]

2 JUDGE MAY: The first matter is this: That

3 we are constituted as a Chamber of two, Judge Robinson

4 being absent for urgent personal reasons, which I trust

5 has been communicated to the parties.

6 We cannot, therefore, make any decisions

7 sitting as a Chamber of two, and we can only do so as a

8 Chamber of three. However, given the urgency of

9 matters and the need to get on, we thought it right to

10 sit today in order to hear argument. We will not make

11 a decision until we are fully composed as a Chamber of

12 three, which will be sometime after the 25th of this

13 month.

14 If there's any objection to that course, we

15 will hear it, but otherwise we propose to hear the

16 argument now. Judge Robinson will have access to all

17 materials about this hearing.

18 Mr. Rivkin.

19 MR. RIVKIN: We have no objections, Your

20 Honours. Indeed we were informed about this matter in

21 a timely manner. Thank you.

22 MR. NICE: We have no objection, of course.

23 JUDGE MAY: Very well. We will hear the

24 matter. Those matters, as I understand it, which we

25 are to consider are these: alleged non-compliance by

Page 12051

1 the Republic of Croatia with orders of the Trial

2 Chamber of the 22nd of January and the 4th of February

3 of last year, and then further requests by the

4 Prosecution of the 16th of April and the 19th of July

5 of last year.

6 We have been helpfully provided -- besides

7 all the voluminous materials, we've been helpfully

8 provided with a summary by the Prosecution of the

9 status of the litigation which sets out all the steps

10 in a very comprehensive form. I hope that the Republic

11 have that.

12 MR. CASEY: As a matter of fact, Your Honour,

13 we do not. I was as disappointed as you, Your Honour.

14 The Registrar's office has evidently adopted a new

15 policy of sending things to us by regular mail.

16 Consequently, the document I think you're referring to

17 arrived in our offices about 9.00 last night Hague

18 time, about 3.00 Washington time. It is quite

19 voluminous, and so we have not yet received the

20 document.

21 JUDGE MAY: First of all, let me ask the

22 Registry about this.

23 [Trial Chamber confers with registrar]

24 JUDGE MAY: The document, say there's no

25 dispute about it, in case there is a misunderstanding,

Page 12052

1 the summary of the binding order is the document I'm

2 referring to.

3 MR. CASEY: Very well, Your Honour. Yes. We

4 were given that this morning. Evidently there is

5 another quite voluminous filing that was made on

6 December 22nd by the Prosecution summarising its view

7 of the various binding orders and the status of that,

8 and that is the document I was referring to. I was

9 mistaken. I thought that's the one you were referring

10 to.

11 JUDGE MAY: Very well. We have, as I say,

12 the summary, helpfully setting out the matter. So the

13 parties may take it that we have all the materials.

14 It may be helpful, Mr. Nice, if in as

15 non-contentious a way as possible you could state the

16 Prosecution's position, what you're asking us to do

17 today.

18 MR. NICE: First, the absent document. It's

19 unfortunate that the representatives of the State of

20 Croatia don't have that substantial document which, of

21 course, we rely on. My understanding, from the marks

22 on the document as filed, is that it was severed on the

23 embassy as well as on the law firm. So, therefore, if

24 that's right and it was served on the embassy here,

25 they should have been aware of it acting for the state

Page 12053

1 shortly after the time when it was served on the

2 embassy.

3 The document does contain a number of matters

4 of detail and a number of exhibits, some of which may

5 be thought to be important.

6 JUDGE MAY: Well, it may be then that since

7 the respondents haven't had it, if you were to take us

8 to that document and briefly indicate the salient

9 points.

10 MR. NICE: Well, maybe I can make a

11 preliminary point and indeed sit down. It's a new

12 policy of the Office of the Prosecutor that filings are

13 only ever to be signed by the Senior Trial Attorney.

14 That's somewhat unfair on the people who do the work

15 and doesn't help you know who has actually done the

16 drafting in this case. It won't come as any surprise

17 that the very considerable work that's been put into

18 this exercise has been done by Mr. Scott and having

19 opened the next application in a couple of sentences I

20 will hand over to him. So I will do that straight

21 away.

22 The only thing I desire to make quite plain

23 now, because it hasn't been made plain, I think, to the

24 representatives of the State of Croatia before now, is

25 that in light of the history, we're asking the Chamber

Page 12054

1 not only to make orders which would be very short in

2 their return dates, but we're asking the Chamber

3 effectively to take over and to police the provision of

4 documents, particularly given the time scale. And by

5 that we would invite the Chamber, in due course, to

6 make orders that documents be provided to the Chamber

7 on particular dates and that there be attendance either

8 on that date or very shortly after by the

9 representatives of the state to check whether there has

10 been proper compliance and so that appropriate steps

11 can be taken if there has not been proper compliance.

12 JUDGE MAY: So you would ask for orders on

13 all these applications for documents to be supplied by

14 28 days or --

15 MR. NICE: Or even less because of the real

16 timetable problems we are suffering and for the period

17 of time these requests have been outstanding, to be

18 followed by timetabled return dates for appearance by

19 the parties so that the matter can be dealt with

20 immediately if provision of documents is anything other

21 than complete and adequate.

22 The only other point I was going to make is

23 that in the long document that apparently has not found

24 its way to the representatives of the State of Croatia,

25 there is some chapter and verse given to what we now

Page 12055

1 know of the involvement of both sides of Hunton and

2 Williams and the State of Croatia in the Kordic

3 defence. That starts at page 40 in the long document.

4 The Chamber will be pleased to know that I

5 have managed to release the underlying documents from

6 any sensitivity, and I'm going to be in a position to

7 provide them almost immediately with full translations

8 to the Defence in this case and, indeed, in due course

9 to the representatives of the State of Croatia. I

10 shan't serve them immediately on the Chamber for this

11 reason: that I will give those representing the

12 defendant, or both defendants, the opportunity to

13 indicate what passages, if anything, they would rather

14 were not seen by the Trial Judges, if there is any

15 sensitivity that they regard as attaching to any such

16 passages. But the material is now available to be

17 served, and therefore we're able to be a little bit

18 more explicit about it.

19 With those few opening observations, I'll

20 hand over to Mr. Scott.

21 MR. RIVKIN: Your Honour, if we may make one

22 point before going forward.

23 JUDGE MAY: Yes.

24 MR. RIVKIN: With respect to the service on

25 the embassy, indeed it is the practice of the registrar

Page 12056

1 to serve things on the embassy of Croatia here in The

2 Hague, as well as send things to us. Unfortunately,

3 when the service sheet indicates that it has also been

4 served upon us, they assume that that has been the case

5 and that therefore they need not also provide us with a

6 copy, and consequently they would have had no reason to

7 provide the document that we're talking about to us,

8 assuming that we had it. And, of course, we had no

9 idea that it existed and so did not know to ask for

10 it.

11 With respect to compliance times, again we

12 believe the Court's law on this is quite clear.

13 Reasonable compliant times must be provided, and we

14 would obviously request the opportunity to discuss

15 that.

16 JUDGE MAY: You can address us on that in due

17 course.

18 Let us hear briefly, if we could, Mr. Scott,

19 so that the respondents can have an opportunity to deal

20 with the document. If you would just take us to the

21 salient parts.

22 MR. SCOTT: May it please the Court and

23 counsel, I'll try to be brief, Your Honour. I may be

24 slightly more detailed than I might otherwise have been

25 because of the service issue, and I'll try to flush out

Page 12057

1 our position on some of these issues so that counsel

2 can fully respond.

3 It is the case, Your Honour, that

4 considerable effort did go into the preparation of

5 these papers. I say that not expecting any particular

6 response from the Court, only to say that they are as

7 exhaustive and as detailed and as complete as we could

8 possibly make them. I certainly can't say anything

9 terribly new or different this morning but will try to

10 highlight to the Court our basic points and again flush

11 them out to some further extent for counsel.

12 Your Honour, it is our fundamental position

13 here before this Court, and I start with this point and

14 we will probably end with this point, that we come here

15 today, after three years of a continuous series of

16 events, all of which are closely related, in a

17 continuing series of efforts by the Prosecutor's office

18 and by, indeed, this Court, at least two separate

19 Chambers, to obtain Croatia's full and complete

20 compliance with outstanding orders, requests for

21 assistance, and other outstanding matters.

22 It is the Prosecutor's position, Your Honour,

23 that the status of these matters and Croatia's obvious

24 complete and continuing non-compliance is not a matter

25 of an isolated incident or instance here and there but

Page 12058

1 part of a strategy, if you will, part of a campaign, if

2 you will, to resist and delay and obstruct the work of

3 this Tribunal. We set our reasons for that out, our

4 basis for that, Your Honour, in great detail in our

5 papers, and again I'll touch on some of them.

6 Your Honour, we believe it is reasonable for

7 the Court to conclude, and the Prosecutor has

8 concluded, that there are, in fact, substantial

9 documents in existence in the Republic of Croatia that

10 are responsive to our outstanding request and, in fact,

11 indeed the Court's orders. Everything about these

12 investigations today, and this Tribunal is now some

13 years old and there has been some extensive amount of

14 investigation, everything points to the fact that these

15 organisations, these States, these entities, are modern

16 organisations with extensive record-keeping, with

17 extensive archives, with extensive document

18 collections. There is every reason to believe and no

19 reason to believe to the contrary that substantial

20 responsive documents directly relevant to the issues

21 before this Tribunal exist and should be turned over to

22 this Tribunal. To the extent, Your Honours, that some

23 documents are claimed to have been lost or in the

24 meantime destroyed, we submit, Your Honours, that

25 someone, some responsible senior official, should come

Page 12059

1 before this Court, under oath, and make a full

2 accounting concerning those documents.

3 I want to touch on, Your Honour, two

4 important issues in this case that underlie many of our

5 requests or many of our requests touch on to simply

6 flush out the basis for our requests and our concerns.

7 One of these, as the Court knows, is the whole issue of

8 international armed conflict, and indeed the Court

9 heard only yesterday that it is an issue in this case

10 that the Defence does not concede in the slightest,

11 putting the Prosecution in the position of having to

12 prove, as we believe we have and will, the existence of

13 such a conflict for purposes of sustaining our burden

14 of proof.

15 In that regard then, Your Honours, again

16 going back to 1997, the Prosecutor's office has

17 repeatedly sought documents from Croatia related to

18 this issue. It's the Prosecutor's position, Your

19 Honour, that there was, indeed, an international armed

20 conflict relevant to the issues in this case, that is,

21 the conflict in Central Bosnia between the Bosnian

22 Croats or Croats and the Bosniak or Muslim community

23 during the time from approximately late 1991 into early

24 1994. It's our position, Your Honour, that indeed the

25 most senior officials of the Zagreb government,

Page 12060

1 including former President Tudjman and Defence Minister

2 Susak, were extensively involved with the Bosnian Croat

3 leadership, including such people as Mate Boban and, in

4 fact, indeed, at least one of the accused, Mr. Kordic.

5 This Court has heard to date, since the trial

6 started on the 12th of April, substantial and extensive

7 evidence of this, of Croatia's close relationship and

8 involvement in these matters. Our papers set forth a

9 number of the witnesses who have touched on these

10 matters. I won't take the time to go through it here.

11 We also cite a number of the more directly-relevant

12 exhibits that have come before the Court touching on

13 this. The Court will remember, even in the past

14 several weeks, some of the directly pertinent testimony

15 of such people as Ole Brix Andersen and others who have

16 come before this Court and said, in no uncertain terms,

17 the government of Croatia, the forces of the HV, the

18 Croatian army, the military forces, were involved in

19 Bosnia, including Central Bosnia, and it is, we

20 believe, untenable, Your Honour, for Croatia to have

21 come before this Court for the past three years and

22 denied that involvement. We do not accept that

23 position.

24 In particular, Your Honour, at pages 17, 18,

25 and 19 of our papers, we've spent specific incidents

Page 12061

1 and examples of such involvement, including, for

2 instance -- and I'm just going to cite a couple, Your

3 Honour -- an order on the 12th of April, 1992, from a

4 very senior Croatian army officer, Janko Bobetko, the

5 commander of all HV -- not HVO -- all HV units on the,

6 quote, "southern front" ordering that all HV insignia

7 are to be removed from the fighters, that such fighters

8 will present themselves as volunteer defenders of their

9 homeland.

10 On the 5th of October, 1992, Colonel Blaskic

11 issued a written order that all HV officers in the HVO

12 units be identified.

13 On the 26th of November, 1992, the HVO deputy

14 commander in Zenica, and that is right in Central

15 Bosnia, right in the middle of this case, ordered that

16 HV members present in this region and wearing HV

17 insignia must be warned to take them off.

18 Again as late as the 17th of February, 1994,

19 the U.N. Secretary-General, no less, sends a letter to

20 the Security Council concerning the presence of the

21 Croatian army in Bosnia and the removal, the policy or

22 strategy of removing their HV insignia.

23 This Court has heard sworn testimony from

24 Witness A that Croatian army symbols and insignia were

25 seen on troops and equipment in Central Bosnia in early

Page 12062

1 '93 and that Dario Kordic, as a senior official of the

2 Bosnia-Herzegovinian arm of the HDZ party and

3 vice-president of Herceg-Bosna, often travelled to

4 Croatian and was the superior persons who were directly

5 involved in bringing weapons from Croatian. A still

6 confidential witness, Your Honour, to come in the

7 future is expected to testify to extensive contact

8 between the Bosnian-Croat leadership and senior

9 officials of the Zagreb government, including President

10 Tudjman.

11 Another specific example, and I say this

12 again, Your Honour, because Croatia has come for three

13 years and said, "We have no records of this. We have

14 no records of any meetings. We have no records that

15 Mate Boban was in Zagreb meeting with these officials.

16 We have no records that Dario Kordic ever came to

17 Zagreb and met with President Tudjman or Defence

18 Minister Susak." Just as an example, trial

19 Exhibit Z2787 is a photograph of a meeting of a

20 Bosnian-Croat delegation including Kordic and Valenta

21 with President Tudjman in June of 1991.

22 JUDGE MAY: I think we've got this point.

23 MR. SCOTT: All right.

24 JUDGE MAY: Mr. Scott, if you could take us

25 on, yes.

Page 12063

1 MR. SCOTT: I will, Your Honour, quickly.

2 Suffice it to say, and again, Your Honour, we

3 set this out in great detail continuing on, and just

4 for the record for the Court and counsel, continuing on

5 to pages 20 to 22 or so of our brief, detailed accounts

6 in support of our position. We think, Your Honour, it

7 is untenable for Croatia to come before the Court and

8 say that relevant documents don't exist.

9 As a further specific issue, Your Honour, one

10 particular event that I'd say probably most people in

11 this Tribunal and certainly this Court is very familiar

12 with at this point is the whole issue of the atrocities

13 in Ahmici. Many of our requests, again dating to three

14 years ago, and I say that, Your Honour, because the

15 Court will recall now from the newspapers that Judge

16 McDonald, in January of 1997, almost to the day, I

17 think the 15th it will be three years from the

18 anniversary date, issued a subpoena to this very same

19 Croatia for many of the very same documents that we

20 have never received, including the documents concerning

21 Ahmici.

22 As recently as May of this year, Your Honour,

23 Croatia filed a response that said it has no documents

24 about Ahmici, whether produced by its own agents, that

25 is --

Page 12064

1 MR. CASEY: Your Honour, it's my

2 understanding that that particular response was,

3 indeed, issued in closed session, and because of the

4 state's concerns, and I would prefer it not be referred

5 to in open court.

6 JUDGE MAY: We know what the response was.

7 MR. SCOTT: With that in mind, Your Honour,

8 it is again incredible to the Prosecution, and we ask

9 the Court to come to a similar conclusion, that there

10 would be no such documents.

11 The record is clear, Your Honour, there was

12 extensive public -- international public outcry about

13 these events in Ahmici by virtually every western

14 government, by the United Nations, by the European

15 Union, et cetera, et cetera, that came directly to bear

16 on President Tudjman and the Zagreb government. It

17 is --

18 JUDGE MAY: So we can discuss this, it may be

19 sensible to go into closed session for a moment.

20 MR. SCOTT: We can go into private session,

21 Your Honour, I believe.

22 JUDGE MAY: Whatever it is, yes. Private

23 session will do, yes.

24 [Private session]

25 (redacted)

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Page 12066

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16 [Open session]

17 MR. SCOTT: With that further background in

18 mind, Your Honour, let me touch upon the status of the

19 outstanding matters and the pending applications.

20 Again, Your Honour, as touched on already,

21 and I'll try not to say this more than again once or

22 twice, but it is of paramount importance for this Court

23 not only to hear but fully understand and appreciate

24 that these events are part of an unbroken string going

25 to January of 1997. Croatia does not appear before

Page 12067

1 this Court for the first time on a first request for

2 these documents but comes here some three years later

3 to the day never having produced many of the documents

4 requested.

5 In fact, even at that time, back in January

6 of 1997, in February of 1997, in hearings, when

7 Croatia's representative disputed the power of the

8 Tribunal at that time to issue a subpoena, nonetheless,

9 at the urging of Judge McDonald, Croatia's

10 representative at that time undertook and made a

11 personal commitment -- made a commitment on behalf of

12 the Croatian government that indeed notwithstanding the

13 technical legal issues about a subpoena or what have

14 you, made a commitment to this Tribunal that those

15 documents would be produced, and, in fact, in reliance

16 on that commitment or to further record that

17 commitment, the Office of the Prosecutor in the Blaskic

18 case, Mr. Harmon, on that same day, drafted a request

19 for assistance, a Rule 29 request asking for the same

20 documents not by subpoena, which was disputed by

21 Croatia, but by a Rule 29 request which they stood in

22 court in front of Judge McDonald and said they would

23 honour and they've never done so.

24 Since we're in public session, Your Honour, I

25 will not go into detail about some of the additional

Page 12068

1 history in the Blaskic case. The Court has our papers

2 and the Court knows and Croatia knows the severe

3 findings that the Blaskic hearing officer made

4 concerning the status of Croatia's compliance in June

5 of 1998, in the most severe and unqualified terms.

6 To make the record clear, Your Honour, unless

7 Croatia say that we're suggesting otherwise, it is the

8 case, and we have always said that after the very

9 severe findings by the Blaskic Chamber in June of 1998,

10 which again this Court has available to it in detail,

11 Croatia did make then a series of some productions

12 between that time and the end of the Blaskic evidence.

13 It's our view and the Court has heard this already;

14 that notwithstanding the production of paper, that

15 Croatia was not and never was in compliance with the

16 orders in that case. It is not simply compliance, Your

17 Honour, to produce a volume of material, most of which

18 is completely non-responsive and irrelevant. It's no

19 secret, Your Honour. I could show up in this Court

20 this afternoon and deliver boxes of material, most of

21 which would be worthless.

22 There have been productions by Croatia. We

23 don't want to suggest that there hasn't been some paper

24 presented to the Prosecutor's Officer. It's our

25 position, Your Honour -- we've assessed that.

Page 12069

1 Mr. Harmon's assessed it. Most of it was completely

2 unresponsive, most of it completely irrelevant.

3 Generously speaking, Your Honour, and I'll

4 ask Mr. Harmon to conclude, but certainly probably the

5 total material was probably not more than a small box,

6 perhaps a printing paper -- Xerox box of material.

7 Mr. Harmon confirms that that's correct. A very small

8 amount of material, given the circumstances of this

9 case and over the time period that these orders have

10 been outstanding.

11 In fact, Your Honour, the net result of

12 Croatia's position, unfortunately and sadly, was

13 through a continuous process of promising compliance,

14 coming before this Court, coming before the Blaskic

15 Chamber, Judge Jorda, now President Jorda, and

16 professing good faith, professing cooperation, in fact

17 producing almost nothing, Croatia succeeded, and it's

18 my view, Your Honour, and I submit to the Court it's

19 not by accident, Croatia succeeded in out-lasting the

20 taking of evidence in the Blaskic case. So that any

21 evidence produced, and in reality no further evidence

22 produced, was too late to put before the Blaskic Trial

23 Chamber.

24 I submit, Your Honour, I'll be so bold to

25 submit, if the Court will allow me, that unless the

Page 12070

1 Court takes stern measures in this case, we fear, the

2 Prosecution fears the same will be true here, and to

3 the extent any documents produced by Croatia, they will

4 be too late.

5 On the 5th of June, 1998, Your Honour, we

6 served, the Prosecutor's Office served a formal request

7 for assistance to Croatia concerning information for

8 Dario Kordic and Mario Cerkez. 5th of June 1998, some

9 year and a half ago. No documents ever produced.

10 On the 24th of July, 1998, the Prosecutor's

11 Office applied for a binding order essentially to step

12 into the shoes of the Blaskic order as it then stood.

13 We believed it important, Your Honour, because of

14 concerns in the Blaskic case and because the Kordic

15 case, of course, stands on its own feet in terms of a

16 separate record, to make the same request and have the

17 same order issued in this case, for the very reason

18 that in the unfortunate scenario, which sadly came

19 true, that Croatia would outlast, if you will, the

20 Blaskic trial, the Kordic team would take the baton and

21 continue our efforts to obtain these documents. That

22 is now some almost 18 months ago. No documents

23 produced.

24 Indeed, I'll just mention in passing --

25 there's a longer quote in our papers, but I'll just

Page 12071

1 mention that when this matter was still before the

2 prior Trial Chamber, Judge Jorda presiding, on the

3 2nd of September 1998, Judge Jorda, closely familiar

4 with the history in the Blaskic case made this

5 statement on the record: "I appreciate the fact that

6 the Prosecutor has already asked for us, and I know I'm

7 speaking for my colleagues and for the Tribunal as a

8 whole, I'm appreciative of the fact that the country or

9 countries covered by bindings orders will not say that

10 they can escape from orders, and the orders of the

11 Prosecution or Defence has gone about things too late

12 in order to ask for production, and the binding orders

13 here will be issued in the Kordic/Cerkez case," he's

14 referring to, "from the very start of the proceedings,

15 and we intend to make sure that those binding orders

16 are respected specifically in respect of the country

17 covered by the first binding order; that is, Croatia."

18 Let me make the general point, Your Honour,

19 to the extent that on any of these matters, and really

20 this touches on more than one application or one order,

21 to the extent that national security claims are made,

22 let me submit to the Court that in our collective view

23 and experience as a Prosecution team, including

24 Mr. Harmon, generic claims or general abstract claims

25 of alleged national security are far too easy to make,

Page 12072

1 and in many, many instances those claims cannot, in

2 fact, withstand scrutiny, and there's simply no

3 legitimate basis for such a claim, and we strongly

4 suspect that at least in substantial part that would be

5 true of any such claims asserted here.

6 Let me give the Court a specific example in

7 the Blaskic case. In the Blaskic case there were

8 continuing protests that some of the requests were

9 calling for highly sensitive information that touched

10 on national security issues. Ultimately when some of

11 these documents were produced, they were gasoline

12 receipts. They were gasoline receipts. Highly

13 sensitive information.

14 Further, Your Honours, even -- and I stress

15 the word "even" -- where there is some legitimate basis

16 or aspect of a national security concern, it is

17 likewise our experience, and I suspect the Court's

18 experience in its local or domestic jurisdictions as

19 well, it is likewise our experience and assessment that

20 such concerns can very often be addressed in such a way

21 that the documents or information itself can be

22 provided in a way that does no significant injury to

23 any legitimate security interest. The information can

24 be postured in such a way, protective orders can be

25 entered in such a way that assuming that there is any

Page 12073

1 legitimate interest, that interest be protected while

2 making most if not all the information available to the

3 Court.

4 In connection with our application dated the

5 25th of January, 1999, Your Honour, and this Court's 4

6 February order for production, we had 38 paragraphs of

7 requests, after litigation in the Appeals Chamber,

8 adverse to Croatia. Some eight months after this

9 court's order, Croatia finally produced three

10 documents. So out of 38 paragraphs, they had documents

11 responsive to only one out of 38 paragraphs and then

12 that one paragraph they produced three documents. We

13 don't accept that that's full compliance.

14 We then, Your Honour, on the 16th of April,

15 1999, applied for an order, which is pending at this

16 time. There were approximately 41 numbered

17 paragraphs. Paragraphs 1 through 39 asked for

18 documents and information directly related between the

19 defendant Kordic and 12 identified persons, all of whom

20 were significant political/military leaders in Croatia

21 and Herceg-Bosna during the time in question. We

22 believe those are fair, sufficiently specify a specific

23 and relevant request.

24 Paragraphs 40 and 41 request documents

25 concerning awards, medals, commendations, et cetera,

Page 12074

1 giving to Mr. Kordic by the State of Croatia and/or the

2 Herceg-Bosna or HVO government, and we know, Your

3 Honour, or have reason to believe that such awards were

4 made, but no documents have ever been produced on that

5 issue.

6 I would point out to the Court that on that

7 particular order, there was a parallel order --

8 application to the Federation of Bosnia-Herzegovina for

9 a similar order, well, identical order asking for the

10 same 41 numbered paragraphs, and this Court found, on

11 1st of June, 1999, that the Prosecutor's request were,

12 "Specific, relevant, and not unduly onerous." We

13 submit, Your Honour, that that same finding should be

14 made here. The requests are identical.

15 Let me briefly touch on that Croatia has

16 taken the position, in response to that particular

17 application, that some, that some of the requests are

18 repetitive or asked again for some information on

19 requests not previously granted. That is literally

20 true as to some particular aspects of some of the

21 requests, but the requests are far from identical.

22 They were further modified and further, if you will,

23 developed, that they are in many ways different.

24 Further, Your Honour, we would take the

25 position that had Croatia, in fact, made substantial

Page 12075

1 good faith productions in response to such prior

2 requests or even other similar requests, they might

3 come to this Court on stronger ground, but certainly

4 Croatia can claim no prejudice whatsoever when they've

5 never produced a document in any of them on these

6 matters.

7 Finally, Your Honour, on the 19th of July,

8 and this is the last pending application, we asked

9 for -- we again applied for a number of requests. We

10 candidly indicate, Your Honour, that we know that there

11 are, by paragraph numbers, a large number of requests.

12 As we said in our papers and I will say again now, Your

13 Honour, we will ask the Court, it would be instinctive,

14 if the Court will allow me to say, it would be

15 instinctive for the Court to say that's an awful lot of

16 requests, surely too many. We believe it is not, Your

17 Honour, and our application should not be judged merely

18 by the number of paragraphs. In fact, each paragraph

19 is limited to directly relevant issues. We have

20 annexed a set of topics so that it doesn't encompass

21 everything. We do not want Dario Kordic's lunch

22 receipts, but touch only on issues that are relevant to

23 the issues before this Trial Chamber about the conflict

24 in Central Bosnia, about the persecution of Muslims,

25 about the attacks on villages, about killings, all

Page 12076

1 directly relevant to the issues before this Chamber.

2 I think in one response that Croatia made to

3 the Court's scheduling order, if I read it correctly,

4 they largely concede, they may have other objections,

5 but they largely concede that the requests themselves

6 are generally specific and relevant.

7 I think that concludes that part of the

8 status of our applications, Your Honour. The Court

9 must have and in the interests of time, Your Honour, I

10 don't know what might have been more efficient, not to

11 go through the chart, because I thought some of the

12 comments to add to the chart rather than simply -- when

13 I say the chart, I mean the table presented -- I hope

14 the Court finds that helpful and the history I've just

15 given to the Court is largely laid out, at least

16 step-by-step without some of the detail, in the table,

17 but I've attempted to further state our position on

18 these matters.

19 JUDGE MAY: Yes. We have that table.

20 MR. SCOTT: Your Honour, let me just say, I

21 know --

22 JUDGE MAY: Judge Bennouna has a point.

23 MR. SCOTT: Yes.

24 JUDGE BENNOUNA: [Interpretation] Mr. Scott,

25 you have told us that you are requesting that a senior

Page 12077

1 official representing Croatia, a member of the

2 government or not, in any event, a member of the senior

3 administration of Croatia should be present, should

4 appear to directly respond as an agent of Croatia. It

5 is normal for a state to be represented by its agent

6 and by legal counsel. Have you made such a request to

7 Croatia and have you been in touch with the government

8 of Croatia already, asking them to designate an

9 appropriate interlocutor in order to discuss with that

10 interlocutor the request of cooperation with the

11 International Tribunal for the provision of information

12 and documents within the framework of a court case,

13 because, after all, in relations with a state, that

14 would appear to be normal conduct throughout the world;

15 that is, contacts with the senior representative of the

16 state when one could ask them to designate an

17 interlocutor who could then discuss those matters with

18 you. Have you done that within the Office of the

19 Prosecutor? If you haven't, do you wish to make a

20 precise request to that effect or are you requiring a

21 ruling to that effect on the part of our Chamber? That

22 is my question.

23 MR. SCOTT: The correct answer -- Your

24 Honour, I thank you and a comment, the short answer is

25 no, we have not done that, at least not recently. I

Page 12078

1 think, in fact, over the three years there's been

2 extensive consultation. I am sure that if Mr. Harmon

3 stood up, Mr. Harmon could give you about lengthy

4 discussions -- about discussions and conversations,

5 exchange of correspond with the representatives of the

6 government of Croatia, to shorten some requests, to

7 modify some requests, to make some requests more

8 specific. So, yes, I would say on behalf of the

9 Prosecution office as a whole, since 1997, I would say

10 yes, it has happened, Your Honour. Not recently on

11 behalf of the Kordic specific team, and for the very

12 reason, Your Honour, that given the history in this

13 case of three years, of what we view as non-compliance,

14 did not appear to us it was likely to be productive.

15 We're happy to pursue that, Your Honour, to the extent

16 the Court would wish us to, if it would be productive.

17 But it's our judgement it would not be productive, Your

18 Honour.

19 When orders are issued by this Court, which

20 have been, it seems to us that it is the responsibility

21 of the party receiving the order to fully comply with

22 the Court's order and not up to the Prosecutor to try

23 to talk them into it. There are outstanding orders to

24 them, not subject to us negotiating with them further.

25 And I would also further respond if they

Page 12079

1 wanted to have such a dialogue, Your Honour, they've

2 known where we were for the past three years and the

3 past 18 months, and there has never been a phone call,

4 Your Honour. And, in fact, all the voluntary requests

5 for assistance that we've made, and I pointed out some

6 a few minutes ago, dating a year and a half, two years

7 ago, voluntary requests, not with judicial orders

8 entered, were never responded to. We never got a

9 response; no documents, no letter, just nothing.

10 So, Your Honour, sadly I tell the Court our

11 position is that we don't think, absent this Court's

12 direction, absent this Court's intervention, we don't

13 think such a dialogue would be productive. Thank you.

14 JUDGE BENNOUNA: [Interpretation] The second

15 part of my question, if I understand you well, you're

16 formally asking our Chamber to order Croatia, the

17 Croatian State, to designate a representative, a senior

18 official, to express himself concerning the existence

19 or nonexistence of those documents, and efforts made

20 within the state administration to find them, in the

21 case that they do not exist, and to tell us about it.

22 MR. SCOTT: Yes, Your Honour. The Court is

23 obviously correct. The Court may recall that in a

24 similar hearing some time ago with another party,

25 Mr. Nice had stated, and I think the same statement

Page 12080

1 applies equally here, it is all too easy for a legal --

2 a lawyer representing a party or a client to come and

3 make generic claims or positions; that because the

4 lawyer himself is not in a position to know the

5 details, the lawyer himself is not perhaps a witness,

6 is not put under oath, there simply is not a great deal

7 of force, unfortunately, in some situations, and in the

8 circumstances, we submit, here, to continue general

9 statements or assurances of production or the lack of

10 documents.

11 When, however, a response -- and I think this

12 is true again from our experience, Your Honour, and I

13 can say, having practised both in the civil and

14 criminal arenas for the past 20 years, that when a

15 responsible party has to raise his or her hand and give

16 some certification subject to the penalties of perjury

17 or contempt, it has a way of focusing one's attention,

18 and when it turns out that those statements or those

19 certifications are not entirely true, some consequences

20 can be visited upon that person.

21 In our experience, Your Honour, in these

22 governments the people who are probably the most

23 directly related to these issues typically seem to be

24 the Ministers of Defence and Justice, so if the Court

25 is asking me to, if you will, nominate some possible

Page 12081

1 officials, those are the first two who would come to

2 mind.

3 Your Honour, I'm going to cut through a

4 number of other things here. Papers speak for

5 themselves.

6 JUDGE MAY: I think that's right. You make,

7 in the 22nd of December, observations, I shall put it,

8 rather than "allegations", mainly concerned with

9 Mr. Rivkin. Since he's here and able, if necessary, to

10 deal with them, we can read them.

11 MR. SCOTT: Yes, Your Honour.

12 JUDGE MAY: Partly they depend on newspaper

13 reports --

14 MR. SCOTT: Yes.

15 JUDGE MAY: -- which we can read at paragraph

16 77 onwards, and 85. What is this paper, The

17 Nationale?

18 MR. SCOTT: It is one of the primary

19 papers -- a nationally-distributed paper in Croatia,

20 perhaps one of the one or two -- my understanding, one

21 of the top two or three papers in the country. I make

22 no general claims of credit worthiness of the media in

23 general, but only to say that these are

24 nationally-reputable papers in Croatia. I say "these."

25 The papers that are the subject of the -- or the

Page 12082

1 producers of the articles.

2 They purport to rely, Your Honour, not simply

3 on what might be called hearsay or rumour but upon,

4 however they may have gotten them -- and I don't

5 speculate on that -- but on the nature of

6 contemporaneous records of meetings and minutes of

7 meetings and memoranda supporting the statements made.

8 I had not, Your Honour, very specifically in

9 preparing my comments yesterday and today, not intended

10 to go in any great detail into those aspects, because

11 they are in the papers. I had understood and was

12 operating on the assumption that these papers had, in

13 fact, been served upon Croatia some time ago. I regret

14 they haven't been or they apparently weren't. There is

15 apparently no reason to believe that they were not

16 served locally on the embassy on or about December

17 22nd. It's unfortunate as to why they have not perhaps

18 been communicated more broadly.

19 Let me just say, Your Honour, that, well, if

20 the counsel -- I appreciate the Court's concerns, and

21 counsel certainly should have a chance to respond. It

22 may be that if counsel is directed, as the Court

23 already has, to those pages of our papers that they now

24 have and have had at least for some minutes, perhaps

25 they would be in a position to further respond. I

Page 12083

1 don't think I would like to characterise it too --

2 MR. RIVKIN: Forgive me, Your Honour. We do

3 not have those papers. What we have is a summary that

4 was given to us as we walked into the courtroom. We do

5 not have those papers that my colleague is referring

6 to.

7 And as to the service on the embassy, I

8 believe this issue was already addressed earlier by my

9 colleague.

10 JUDGE MAY: I'm told by the registrar that

11 this document was sent on the 28th of December to

12 Mr. Rivkin. Now, whether that is a change that is due

13 to a change in the firm, I don't know.

14 MR. RIVKIN: It is not. If I might clarify,

15 Your Honour. My secretary at my old law firm

16 telephoned us as soon as she received it, so it has

17 nothing to do with change in law firms. That document

18 was physically received in Washington at 3.00 p.m.

19 yesterday when all of us were here sitting and

20 preparing for the hearing this morning.

21 In order to vitiate those problems, perhaps

22 we can ask the Prosecutor, as a courtesy in the future,

23 to inform us at least that such a document has been

24 transmitted so we can make appropriate efforts to

25 obtain it. The Prosecutor certainly has faxed us a

Page 12084

1 number of letters in the last few days and knows very

2 well how to reach us. I don't want to impugn in any

3 way the Prosecutor's behaviour in this matter; nor, on

4 the other hand, is it fair to in any way suggest or

5 insinuate that we somehow deliberately avoided

6 receiving this document.

7 Again, as to the embassy, whenever -- well, I

8 don't want to belabour this point, but it would be

9 unnatural for the embassy to be faxing us a 200-page

10 document that the service sheet indicates was sent to

11 us directly.

12 JUDGE MAY: Mr. Rivkin, you, for your part,

13 perhaps can tell the embassy to let you know if any

14 documents arrive.

15 MR. RIVKIN: I will do so in the future, and

16 I will-- but again, just to give you an idea, Your

17 Honour, for example, in a different proceeding, in a

18 case of ICJ, precisely because the documents are only

19 served at the embassy because of an indication where

20 the agent is located, the embassy immediately transmits

21 those documents to us. Here, for over two years, we've

22 always been served directly, and it's very regrettable

23 that there was a change regarding the way the registrar

24 transmits though documents. We'll discuss it with them

25 as well. But I would like to suggest very briefly that

Page 12085

1 it's rather unfair for us to try to read those pages

2 now and try to respond to them, but I would certainly

3 like to have an opportunity to do so in the future.

4 JUDGE MAY: What I'm going to suggest is

5 this: that the relevant paragraphs can be pointed out

6 to you now. We will hear the rest of Mr. Scott's

7 submissions. We will then adjourn for our usual break

8 of half an hour. You'll have the opportunity of

9 reading the relevant paragraphs -- there are not

10 many -- and we'll hear your response. It will be a

11 matter for you, how you put it. Of course, if you want

12 more time, we will hear it, but it may be that these

13 are matters you can deal with, at least in outline

14 form, fairly briefly.

15 MR. RIVKIN: Thank you, Your Honour. I shall

16 try to do so.

17 JUDGE MAY: The relevant paragraphs, as far

18 as I can see, are paragraphs 77 and 78 and paragraph

19 85, which deal with two articles which I referred to

20 from the newspaper, and there is reference to a meeting

21 in which you were involved, it's alleged, at paragraphs

22 95 onwards. I think that covers --

23 MR. SCOTT: I think the Court is absolutely

24 correct.

25 Your Honour, let me just respond to this last

Page 12086

1 issue only briefly.

2 First of all, let me assure that on this

3 particular item, on this particular item, there is no

4 insinuation of bad faith by counsel in trying to avoid

5 the service of these papers. I'm not suggesting that.

6 I would point out to the Court that in

7 correspondence received, by all accounts, by counsel

8 and dated the 20th of December, there is reference to

9 these issues being raised, the letter signed by

10 Mr. Nice and faxed to counsel, which puts out a number

11 of these same issues which the Court was copied on, I

12 believe. Yes.

13 Also on the 11th of January, there was a

14 further letter also copied to the Court, by all

15 indications received by counsel -- we have a fax

16 confirmation -- again setting out a number of at least

17 some of these issues and stating specifically -- and

18 this is my last point on this, Your Honour -- but

19 stating specifically, "In reference to the last part of

20 your 30 December letter, we are taken to understand

21 that you've received all of the recent pleadings and

22 correspondence about the binding order matter with

23 Croatia, although we were not aware that you had

24 changed law firms. If you have any questions whether

25 all of such pleadings or correspondence have reached

Page 12087

1 you, please let us know." This is the first we've

2 heard this morning of any problem. We'll certainly try

3 to be fair in our dealings in the future, as we always

4 have been, Your Honour, although I must say we don't

5 undertake any obligations to act on behalf or carry out

6 the responsibilities of the Croatian embassy.

7 Finally, Your Honour, we go on in our papers,

8 from approximately page 31 to approximately page 40 or

9 so, generally with an account of Croatia's lack of

10 cooperation with this Tribunal for the last three

11 years. Again, in the interests of time, I can give the

12 Court assurance I'm not going to go through that in

13 detail.

14 Suffice it to say, Your Honour, these are not

15 the protests of one Mr. Scott or one trial team.

16 Numerous organisations, institutions, responsible

17 officials, are on record for having concluded that

18 Croatia has not, in fact, been responsible or acted

19 properly towards this Tribunal in the last several

20 years. The Council of Europe has made such a finding

21 in April of this year -- excuse me -- April of 1999.

22 President McDonald sent a report to the Security

23 Council on this issue. The Prosecutor has sent a

24 report to the Security Council on this issue. The

25 annual report of this institution, an official U.N.

Page 12088

1 document speaking for this institution, has stated very

2 clearly Croatia's lack of cooperation with this

3 institution.

4 Again, Your Honour, this non-compliance with

5 binding orders is part of a larger picture to obstruct

6 and delay and interfere with the ability of this

7 institution to carry out its international mandate.

8 JUDGE MAY: There's one argument for a

9 position where a party is known to have a document and

10 the other party asks for it, and one way or another a

11 court can be satisfied that there is a refusal to

12 produce a particular document in litigation. But if

13 the party says there are no such documents, what then

14 are the court's powers or, specifically, what are this

15 Court's powers?

16 MR. SCOTT: I think the answer to that, Your

17 Honour, is similar to the answer that we proposed to

18 the Court again in another proceeding with another

19 entity, which the Court is familiar with, and in

20 reference to my response to Judge Bennouna a few

21 minutes ago. I agree that always presents a difficult

22 situation to any court of any jurisdiction. I think

23 the only steps that can be taken, Your Honour, in that

24 situation is again to require some senior official, not

25 some mere namesake or token but someone who is in a

Page 12089

1 responsible position to have this information, to come

2 before the Court and make some such certification.

3 That's all we can -- the Court is absolutely right.

4 Ultimately, that's all you can do, and if that official

5 is either unintentionally wrong or intentionally

6 misleading the Court, then if that can be later

7 established, then the Court is in a position to do

8 something about it.

9 There may also be the question, Your Honour,

10 of -- and we just raise this again because Mr. Nice

11 raised it in a prior matter, prior hearing -- there may

12 be some questions of certain adverse inferences being

13 drawn from the lack of production. If a state closely

14 identified with a party, with an accused before this

15 Tribunal, is in a position to produce documents and

16 refuses or fails to do so, I think the Court should at

17 least entertain the notion -- we certainly expect no

18 ruling this morning, but we ask the Court -- we think

19 all of us should entertain the notion that it may be

20 appropriate, and I think this was discussed and perhaps

21 implemented in the Blaskic Chamber -- maybe it was only

22 discussed -- but that is that some inference then be

23 drawn. I realise there is some -- the question will be

24 asked, "How can the lack of cooperation or lack of

25 compliance by one entity be laid at the feet of another

Page 12090

1 party?" I recognise -- we recognise the issue, Your

2 Honour.

3 However, when you have -- as we submit is

4 true here for reasons the Court has heard before and

5 which Mr. Nice may touch on further at a further

6 opportunity, when there is such a complete, in our

7 view, identification between the state which supports a

8 Defence, which pays for a Defence, which is intimately

9 related in the conduct of a Defence, has information

10 documents available to it and refuses to produce them,

11 there may be a situation that negative inferences can

12 and should be drawn.

13 JUDGE MAY: You suggest that we summon

14 officials.

15 MR. SCOTT: Yes, Your Honour. I think,

16 again, that was another part of the Court's question,

17 and I apologise for not answering.

18 JUDGE MAY: No. What I want to ask you is

19 simply what are our powers to do that?

20 MR. SCOTT: Your Honour, I think under the

21 Blaskic subpoena decision, the Appeals Chamber in

22 October of 1997, the procedure was laid out that the

23 Court can take steps to put the proceedings in such a

24 posture that if the state continues to be ordered to

25 comply, this Chamber -- this Tribunal can then order

Page 12091

1 the state to identify such specific senior officials,

2 that the authorities of that state not only identify

3 such officials but then further direct them to comply.

4 And that if such compliance is then not forthcoming,

5 essentially what the Tribunal jurisprudence says, as I

6 understand it, Your Honour, is that the Court is then

7 in a position to subpoena those individuals in their

8 personal or individual capacity. That's what we

9 would -- that's where we think we would be on that,

10 Your Honour, in terms of --

11 JUDGE MAY: If you're referring to the

12 Blaskic decision, it would be helpful to have the

13 paragraph.

14 MR. SCOTT: Your Honour, I have to admit I

15 have not read it recently, and I can do that. I will

16 do it, but --

17 JUDGE MAY: You can deal with it after the

18 break. Just refer us to the paragraph that you're

19 relying on, please.

20 JUDGE BENNOUNA: [Interpretation] Mr. Scott,

21 please try to look at the Blaskic case. But if my

22 memory serves me well, I do not think that is precisely

23 what you are telling us.

24 If my memory serves me well, it is a case,

25 when an order is addressed to a state to carry out the

Page 12092

1 decision of the Tribunal, that in that state an

2 individual receives an order to do something and fails

3 to do that, it means that the decision or, rather, an

4 order is addressed to that state and in that state a

5 specific individual who receives instructions to

6 execute something does not do that, at that moment that

7 individual, that person, then is reduced from the

8 position of a representative of a state to the position

9 of a private person, and the Tribunal then can serve

10 the subpoena, and then in an injunction a subpoena may

11 be issued, but only in his capacity as a private

12 person. And if my memory serves me well, and under the

13 reservation that perhaps I'm wrong, this is what

14 happened in the Blaskic case.

15 At the moment, we're not in that particular

16 position. I believe the state needs to be asked

17 expressly to designate a valid interlocutor on behalf

18 of the state to explain which are the steps which then

19 led them to conclude that there were no documents

20 available.

21 Somebody says 3,000 documents or something.

22 That is what -- that is the legal representative of

23 Croatia says that not one of these documents exists,

24 but Croatia tells us -- that is, Croatia makes a

25 distinction between documents it produces itself and

Page 12093

1 documents which come from some other source. And for

2 the latter, for the documents that come from the other

3 source, it says that it cannot say whether it has them

4 or it doesn't have them, and that is yet another nuance

5 in the position of Croatia, because to say or not to

6 say whether such documents exist or do not would be a

7 national state secret.

8 I believe, and I'm stating, and I speak only

9 in my own name, that I believe such a position is

10 unacceptable. One cannot say that because to turn over

11 the text one has to say -- one cannot say that even

12 saying whether one has or doesn't have a document could

13 also be a secret. That is also unacceptable, and I

14 think this is the first stage. I am speaking, as I

15 said, in my own name, but we shall consult us in the

16 Chamber because this is a point which indeed needs to

17 be clarified.

18 And then the third element concerning the --

19 concerning Croatia's position. It says that if one is

20 to verify whether there are any documents which

21 constitute a national secret, one needs first to know

22 what is -- and this is also a way of non-responding,

23 that it needs to know which are these documents which

24 were mentioned in the Blaskic case; that is, which are

25 acceptable, which are relevant, and so on and so

Page 12094

1 forth.

2 Now, it seems to me that from the requests

3 which the Prosecutor said that Croatia indeed had all

4 the time available to determine what is and what is not

5 a national secret. And if we can use the existing

6 text, perhaps we could say that the first element is

7 that there is no response because something is not a

8 secret but one has to determine what is a secret or,

9 rather, the objection on the national secret has to be

10 developed today, and we have to hear that from

11 Croatia's representative.

12 Now, having said that, evidently it is

13 necessary for Croatia's representative or some

14 representative of Croatia to tell us about this and not

15 only a law firm which will be here and which will give

16 us some legal thesis about the responsibility, but a

17 representative of Croatia to tell us that.

18 JUDGE MAY: Mr. Scott, we will also have in

19 mind, while you're considering matters, Rule 54 bis,

20 which we haven't referred to yet, and it may be that

21 the respondents can make their submissions on that Rule

22 after the adjournment.

23 MR. SCOTT: Yes, Your Honour.

24 JUDGE MAY: Mr. Casey, I will refer you

25 specifically to 54 bis (F)(i) which requires the state

Page 12095

1 to identify, as far as possible, the basis upon which

2 it claims that its national security interests will be

3 prejudiced. You will have all those matters in mind,

4 of course.

5 It may be helpful to the Trial Chamber if you

6 were to respond to what Judge Bennouna has just said.

7 MR. CASEY: I would be delighted to, Your

8 Honour.

9 JUDGE MAY: Yes. After the adjournment.

10 MR. CASEY: Yes, Your Honour.

11 JUDGE MAY: Mr. Scott, if there's anything

12 you want to add.

13 MR. SCOTT: Yes. If I can respond to

14 Judge Bennouna, and then I think I can conclude my

15 remarks before the recess if the Court allows me.

16 Three very short responses, Your Honour, and

17 Judge Bennouna. You're absolutely correct. My

18 understanding is the same as yours on the rulings under

19 the Blaskic judgement, and you have said it better than

20 I have been able to say it.

21 That official can then be subpoenaed in what

22 the law considers -- some might call of a legal

23 fiction -- in a private capacity, and that is exactly

24 the position that I understand it to be as well.

25 Secondly, I appreciate the Court pointing out

Page 12096

1 something that's in our papers but I had not yet

2 addressed this morning, and that is the distinction

3 Croatia makes in some of its responses between

4 documents produced or generated by Croatia itself, if

5 you will, and by its agents, and documents in its

6 position from third parties.

7 Let me be completely clear. We do not

8 recognise or take any comfort in that distinction. Our

9 request is, and I believe the Court's orders are

10 documents in their possession. And I would have to

11 tell the Court that we are very concerned that

12 documents -- for instance, that once we're in Bosnia,

13 ones possessed by the HVO or ones possessed by the

14 Herceg-Bosna government, have in the ensuing years

15 found their way into Croatia or into the hands of

16 certain parties or organisations or governments in

17 Croatia.

18 So let me be clear. I believe the Court's

19 orders and certainly our requests are for all documents

20 in their possession by whoever initially generated or

21 collected.

22 On the national security issue, Your Honour,

23 the third point, Judge Bennouna, you've raised, again I

24 completely agree with you. There have to be specific

25 steps taken -- and the President was also correct --

Page 12097

1 under the new Rule 54 bis to be very specific. We

2 think there is a very high burden to meet in justifying

3 and setting out the basis for a national security

4 claim. I agree with Your Honour.

5 Let me just close with this, Your Honour: We

6 believe these issues are of a paramount importance to

7 this Tribunal, not just the Kordic case, not just this

8 Trial Chamber. The ability for this institution and

9 indeed for a future International Criminal Court to

10 conduct its business in an effective way has to provide

11 for a way, a mechanism for courts to enter orders and

12 ensure that those orders are complied with. Otherwise,

13 Your Honour, if you will allow me, we are a paper

14 tiger. We make strong statements that cannot be

15 enforced. I don't think that's the position we should

16 be in.

17 In terms specifically of where we stand, and

18 I close with this, after three years, Your Honour,

19 since January of 1997, here is the score: In the

20 Blaskic case, perhaps something like half or more of a

21 small box of documents produced in three years, most of

22 it unresponsive or irrelevant, continued denials that

23 other documents exist or alleged national security

24 concerns.

25 In the Kordic case specifically, starting in

Page 12098

1 July 1998 with our first request, 31 documents were

2 produced in response to a request and subsequent

3 application for something that we've shorthand termed

4 the "Bobetko documents." We tell the Court that they

5 were not produced voluntarily. In fact, this goes back

6 to a question that, Judge Bennouna, you raised a few

7 minutes ago. We asked for them voluntarily. We never

8 got a response, didn't get a telephone call, didn't get

9 a letter. There was simply no recognition of our

10 request. We waited for some period of time. Some

11 months went by. We then sought -- applied to this

12 Court for an order. The order was issued and the

13 documents were finally produced. And I submit, Your

14 Honour, the only reason, in our view, frankly, that

15 they were produced is because General Bobetko had seen

16 the wisdom of writing a book about the war in which he

17 identified all these orders very specifically, and,

18 quite frankly, Croatia and its representatives were not

19 in a position to deny the existence of the orders.

20 They simply had no alternative essentially but to

21 produce them.

22 Beyond that, Your Honour, we have three

23 documents produced in response to a 34-paragraph

24 request on the Cerkez case.

25 JUDGE MAY: Mr. Scott, I don't want to

Page 12099

1 interrupt you, but I think we have those points.

2 MR. SCOTT: Thank you, Your Honour.

3 JUDGE MAY: We will adjourn now until half

4 past 11.00, Mr. Casey, and we'll hear you then.

5 MR. CASEY: Very well, Your Honour.

6 --- Recess taken at 11.00 a.m.

7 --- On resuming at 11.35 a.m.

8 JUDGE MAY: There is a request from the

9 interpreters and those who are following in a different

10 language, would the parties slow down in their

11 submissions, please, and have others in mind.

12 Mr. Casey, beginning with you.

13 MR. CASEY: Yes, Your Honour. I will keep

14 that in mind.

15 May it please the Court, Croatia and the

16 Office of the Prosecutor obviously see the world very

17 differently. In Croatia's view, it has complied with

18 the Court's orders. It has not provided materials to

19 the OTP in response to any of the OTP's requests for

20 assistance because it did not believe that the OTP was

21 legally entitled to those materials. The OTP has asked

22 for things that were framed far too broadly and in many

23 cases it would have required simply turning over the

24 military or other archives of the Croatian government

25 to satisfy them.

Page 12100

1 Croatia contested the legal sufficiency of

2 the OTP's requests for orders, and it prevailed. It

3 is, in fact, the OTP that consistently has refused to

4 accept the Appeals Court's rulings on this matter in

5 October of 1997, and it has continued to demand

6 materials that it is otherwise not legally entitled

7 to.

8 THE INTERPRETER: Counsel please down,

9 please.

10 MR. CASEY: This is not non-compliance by

11 Croatia but a refusal by the OTP to accept the legal

12 rulings of the Court.

13 The OTP's claim that the materials produced

14 by Croatia were irrelevant and unresponsive also is

15 misplaced. Given the breadth of the OTP's requests, it

16 is difficult to see how these materials could not have

17 been responsive. It may be more accurate to say that

18 the materials were unhelpful to the OTP's case.

19 However, Croatia's compliance with the Court's orders

20 cannot be judged on the basis of whether it produces

21 materials that support the Office of the Prosecutor's

22 accusations. The complaints of various political

23 institutions that Croatia has failed in its obligations

24 to the International Tribunal are precisely that,

25 complaints by political institutions and not legal

Page 12101

1 opinions.

2 As to the report by former Prosecutor Arbour

3 to the Security Council, that was the opinion of Mrs.

4 Arbour. It was transmitted to the Security Council by

5 President McDonald without legal process because the

6 President believed that the Court's Rules did not

7 provide for a legal process before the transmission was

8 made. Hopefully, that will be changed. However, to

9 characterise the support to the Security Council as the

10 view of the International Tribunal or to give it the

11 character of a judicial determination is entirely

12 wrong. Croatia understands that Mrs. Arbour was not

13 satisfied with its cooperation with her office, but it

14 believes that it fully complied with its legal

15 obligations and that Mrs. Arbour simply was asking for

16 more than she was entitled to.

17 With respect to the question of the

18 appearance of an official of the Republic of Croatia

19 before the Court, the OTP has actually referred to one

20 part of the October 29 decision but, alas, not the

21 portion of that opinion on point. There is no

22 authority in the International Tribunal to require a

23 state official to come before the Tribunal and to,

24 under oath and subject to penalties of perjury or

25 contempt, make statements with respect to that

Page 12102

1 individual's official duties.

2 The relevant paragraph is paragraph 38 of the

3 29 October 1997 opinion. There the Court stated:

4 "The Appeals Chamber dismisses the

5 possibility of the International Tribunal addressing

6 subpoenas to state officials acting in their official

7 capacity. Such officials are mere instruments of a

8 state, and their official action can only be attributed

9 to the state. They cannot be the subject of sanctions

10 or penalties for conduct that is not private but

11 undertaken on behalf of a state. In other words, state

12 officials cannot suffer the consequences of wrongful

13 acts which are not attributable to them personally but

14 to the state on whose behalf they act. They enjoy

15 so-called functional immunity."

16 THE INTERPRETER: I apologise, but that is

17 too fast.

18 MR. CASEY: I'm sorry. I'll go more slowly.

19 "This is a well-established rule of

20 customary international law, going back to the 18th and

21 19th centuries, restated many times since."

22 The following paragraphs may also be of

23 interest to the Court. I will not read from them.

24 JUDGE BENNOUNA: [Interpretation] Mr. Casey, I

25 should like to interrupt you for a moment on this

Page 12103

1 point, because that will perhaps help us to make

2 progress, which is our common purpose, for justice to

3 be served.

4 You are citing the ruling in the Blaskic

5 case. That has to do with the fact of addressing a

6 subpoena to a representative of a state. We cannot do

7 it to a state, nor to a state representative, because

8 they are covered by immunity, as they are acting on

9 behalf of the state. That is quite evident.

10 But that is not the question we are

11 addressing here. We are not talking about a subpoena.

12 You're not responding to the question. The question

13 put is to ask the state to identify a person, a high

14 official, to express himself on behalf of the state,

15 and I think that there is no prohibition on this in

16 international law, as far as we know. There is no

17 impediment to asking a state to designate an agent to

18 tell us what measures have been taken to honour their

19 international obligations on behalf of the state and to

20 come and present the position of the state.

21 So what was in question in Blaskic was the

22 possibility of addressing an order under penalty of

23 sanctions. That is a subpoena, that is what a subpoena

24 means. And it was stated that one could not do that,

25 that one cannot sanction a state, as such, and address

Page 12104

1 a subpoena to a state for the reasons presented in the

2 Blaskic ruling. That is the problem.

3 So will you please respond to the question

4 that has been raised, and we will be very appreciative

5 of your response.

6 MR. CASEY: Yes, Your Honour.

7 I agree, Your Honour, that the International

8 Tribunal is entirely entitled to request that a state

9 designate an official to travel here to explain to the

10 Court what measures it has taken to comply with the

11 Court's orders. What I was responding to was the

12 suggestion by the Prosecutor that that individual, when

13 they came, would be put under oath and would be subject

14 to penalties of perjury and perhaps to contempt. It is

15 only that that I believe, both under the October ruling

16 and international law generally, that cannot be done.

17 The Court clearly can request that the state designate

18 an individual and request that that individual come to

19 explain its position.

20 JUDGE BENNOUNA: [Interpretation] Thank you.

21 MR. CASEY: Thank you, Your Honour.

22 With respect to the issue of national

23 security, under Rule 54 bis it is incumbent upon a

24 state to bring to the Court's attention, as

25 specifically as it can, national security objections to

Page 12105

1 an application within five days before a hearing.

2 On January 7th, Croatia filed a response to

3 the Court's scheduling order and a request or

4 application for an extension of time to make further

5 national security objections. The objections stated in

6 the January 7th filing were admittedly broad, but they

7 were as specific as possible, given the nature of the

8 Prosecutor's categorical requests.

9 Now, it is obviously the case that depending

10 on the request, whether it be for a specific document

11 or specific category or set of documents, one may well

12 be able to tell, from the face of the request, that

13 there are specific national security objections to the

14 production of the documents. At the same time, it may

15 not be possible to tell that, to a categorical request,

16 until all the documents that might be responsive to

17 that category have been collected and identified and

18 the appropriate officials have had the opportunity to

19 determine whether production of any particular document

20 would comprise the country's national security.

21 I think Judge Bennouna referred to the

22 question of third-party documents and whether a state

23 can merely assert that because a request calls for

24 third-party documents, that its national security is

25 implicated and therefore it does not have to produce

Page 12106

1 the documents. Croatia has never asserted so much.

2 Croatia's position is that with respect to third-party

3 documents in individual cases, it may well compromise

4 its national security to admit that it is in possession

5 of such documents, because to do that could reveal how

6 it obtained the documents and could well reveal sources

7 and methods of intelligence gathering, a matter that

8 all states consider a matter of vital national

9 security. Again, it is impossible to say, at least

10 with the requests in the Prosecutor's July 19

11 application, as well as the April 16 application,

12 whether that will be a problem with any specific

13 document. That will not be -- Croatia will not be able

14 to determine that until it identifies any documents

15 that are responsible to the orders.

16 Now, it is also true that at least with

17 respect to the April 16th application, Croatia has been

18 in possession of that application for some time. With

19 respect to the July 19th application, the country, as I

20 understand, received that only after the Court issued

21 its December 15 order. I believe -- I hope they

22 received it in advance of when we did, but -- and so

23 they've had that much less time.

24 However, the Prosecutor has consistently

25 maintained that merely because the Prosecutor applies

Page 12107

1 for an order, the state is immediately required to

2 begin collecting documents as if it were to respond or

3 comply with that order before the order has even been

4 issued by the Trial Chamber. If due process is to have

5 any meaning at all, the state cannot be required to

6 begin complying with one of the Prosecutor's requests

7 until after the Court has issued a proper legal order,

8 assuring itself that the requirements set out in the

9 October 27, 1997 opinion, as glossed by the

10 September 9, 1999 opinion in the Cerkez case, have been

11 met.

12 Therefore, Croatia has asked for and believes

13 that it will need the additional time it has asked for,

14 45 days from the time an order actually issues by the

15 Court, to identify further national security

16 objections, and ultimately 60 days to produce whatever

17 it may have that is responsive to the Court's order.

18 Croatia believes that that is an entirely reasonable

19 period of time, and indeed it is only 15 days more than

20 the original 45 days the Prosecutor itself suggested in

21 the 19 July application.

22 Finally, before I turn the podium over to

23 Mr. Rivkin to discuss the issues that were raised in

24 the Prosecutor's submission, one point on the issue

25 that the Prosecutor has raised of the alleged support

Page 12108

1 by the Republic of Croatia for the Defence in the

2 Kordic case, I would simply point out that it is no

3 more inappropriate for a state to render assistance to

4 the Defence, or the lawyers for that state, for that

5 matter, assuming that they are within the bounds of any

6 orders the Court has issued, as it is for states to

7 offer assistance to the Office of the Prosecutor, which

8 we believe has also been the case.

9 Indeed, I would point out that of the lawyers

10 standing here today, four of us have, at various times,

11 served in the United States Department of Justice;

12 Mr. Rivkin, myself, Mr. Harmon, and Mr. Scott. And I

13 believe at least at one point lawyers were seconded or

14 detailed from the Department to assist the Office of

15 the Prosecutor.

16 I think it is important to keep in mind that

17 merely because the Office of the Prosecutor has brought

18 allegations against individuals, allegations which we

19 must all accept as nothing more than allegations until

20 the Prosecutor has proved its case beyond a reasonable

21 doubt here in court, it has not, by that act, lined up

22 the entire world against the defendant. It is not the

23 world versus the defendant, it is not the United

24 Nations versus the defendant, it is not right-thinking

25 states versus the defendant, it is merely the

Page 12109

1 Prosecutor versus the defendant, and it is up to the

2 Court to determine, ultimately, whether there is guilt

3 or innocence.

4 So states are perfectly free, and properly,

5 to give assistance to either the Prosecutor or the

6 defendant as they may see fit, within the bounds of

7 their international obligations, and we believe that

8 Croatia has fully complied with those limits.

9 Thank you, Your Honour. I would be happy to

10 answer any questions the Court may have.

11 JUDGE MAY: Mr. Casey, just this: I referred

12 you to Rule 54 bis.

13 MR. CASEY: Yes, Your Honour.

14 JUDGE MAY: Now that, in relation to national

15 security interests under Subrule (F)(i), requires the

16 state to identify, as far as possible, the basis upon

17 which a national security interest is claimed. Now, I

18 anticipate that to mean more than merely an assertion,

19 that what will be required is the identification, at

20 least in general terms, of what the interest is. It

21 will not be sufficient merely to say a national

22 security interest is involved. It will be necessary

23 for the state to go further than this, and it may be by

24 the calling of evidence to establish what that interest

25 is.

Page 12110

1 MR. CASEY: Yes, Your Honour. I would -- we

2 understand that, Your Honour. I believe in the

3 January 7th submission, that Croatia identified the

4 basis of its interests as far as possible at this time,

5 that being two; that the April 16th order requests

6 certain documents from and to the then President of

7 Croatia as well as its Defence Minister.

8 The correspondence of the head of state as

9 well as the head of the country's military normally is

10 considered to be of national security concern. Again,

11 it may not be that all of the correspondence is. You

12 can only determine that on a document-by-document

13 basis. But that is one of the bases upon which Croatia

14 has a national or may have a national security concern

15 with some of the documents once it reviews whatever it

16 may have in its possession.

17 The second basis was the third-party issue,

18 and that is many or most of the requests in the April

19 16th, as well as in the July 19th applications, seek

20 documents that were not generated or at least

21 presumably not generated in Croatia or by Croatian

22 government officials. Mostly they seek documents

23 either from or to the defendant Mr. Kordic and various

24 other named individuals. Consequently, if Croatia is

25 in possession of some or all of those documents, how it

Page 12111

1 came into possession of those documents might well

2 raise a national security interest. Again, the basis

3 would be that it would reveal the sources and methods

4 of intelligence gathering or even intelligence

5 capabilities. I mean if you don't have a document, it

6 may reveal as much about your intelligence capabilities

7 as if you do.

8 Again, because of the categorical nature of

9 requests, Croatia cannot be more specific at this time

10 until specific documents have been identified and a

11 review of them can be made. Indeed, even once a review

12 is made whether to assert a national security interest,

13 should it exist, is a matter for the elected government

14 to determine. So again, Croatia's requested some

15 additional time so that process can take place.

16 JUDGE MAY: Thank you.

17 MR. CASEY: Thank you, Your Honour.

18 MR. RIVKIN: Judge May, Judge Bennouna, I

19 will try very briefly to respond to several points made

20 by the OTP in their written submission. Indeed, I'm

21 grateful to Judge May for bringing them to my

22 attention. I, of course, have not had much time to

23 study them so would like perhaps to reserve an

24 opportunity to respond to them -- I better slow down --

25 to respond to them in writing at the earliest possible

Page 12112

1 opportunity, but I certainly am able to make a couple

2 of preliminary observations, because I think those

3 points are not very difficult to respond to.

4 Number one, I notice that the particular

5 numbered paragraphs that Judge May referred to cite

6 newspaper articles. If I'm not mistaken, fairly

7 recently in this very Trial Chamber, in response to a

8 controversy involving the issue of withdrawal of

9 Tribunal funding for the lawyers in the Kupreskic case

10 that was undertaken by the registrar, and I apologise

11 if I have the Trial Chamber wrong, has pointed out that

12 newspaper articles are inherently unreliable methods

13 of -- a means of proving any point.

14 Indeed, I would mention that there are a

15 number of newspaper articles, not only in Croatian

16 newspapers but papers like the New York Times, one of

17 the most respected newspapers in the world, that have

18 made allegations, for example, arguing, for example,

19 that the OTP has leaked information about alleged

20 indictments against President Tudjman, prompting OTP to

21 respond that this is not the case. So newspapers quite

22 often get their facts wrong. That's sort of the first

23 point.

24 The second point: It's always difficult for

25 counsel to respond to newspaper accounts or any other

Page 12113

1 accounts that involve confidential the attorney/client

2 privilege which is certainly very important to any of

3 us who practice law and one of the most important means

4 of ensuring due process and liberty.

5 However, I think in this case my situation is

6 somewhat easier, because I can point out that as the

7 Prosecutor very well knows, those newspaper accounts

8 actually deal with an entirely different matter.

9 Again, if you actually read those newspaper accounts,

10 the way the Prosecutor weaves the facts --

11 THE INTERPRETER: Could the counsel slow

12 down, please.

13 MR. RIVKIN: The way the Prosecutor weaves

14 the facts in those numbered paragraphs would lead one

15 to believe that the subject matter involved was the

16 general strategy of Croatia vis-a-vis this Court or,

17 rather, the way the Prosecutor categorises the general

18 strategy of non-compliance or obstruction by Croatia

19 vis-a-vis this Court.

20 Actually, those articles deal solely with one

21 issue and one issue only, which is the position of

22 Croatia regarding the question of whether or not this

23 Tribunal has jurisdiction over operations storm and

24 flash. It has nothing to do with Blaskic case, Kordic

25 case, production of documents in any of those cases.

Page 12114

1 And again, while I'm constrained by the

2 bounds of attorney/client privilege from getting in a

3 lot of detail, I can certainly tell Your Honours, and I

4 believe some of Your Honours know that from other

5 context that the Croatian position was, is, and remains

6 that this Tribunal lacks jurisdiction over those

7 particular operations and that this matter should be

8 resolved for a judicial process. And I should hasten

9 to add that Croatia has pointed out consistently in

10 writing and orally that it would be bound by whatever

11 decision is reached by this Tribunal, judicial decision

12 is reached by this Tribunal regarding these

13 operations. So I am really puzzled as to why those

14 articles are being trotted out on the issue of what has

15 Croatia's record or strategy been relative to

16 production of documents.

17 Let me now just briefly make another point in

18 this regard; that it has never been the position of the

19 Republic of Croatia to adopt a general strategy of

20 non-cooperation with the Tribunal. That strategy has

21 never been, to the best of my knowledge, discussed,

22 raised, or communicated in any meeting or encounter in

23 which we have -- that has taken place. Have we ever

24 heard such a strategy even being discussed, again, a

25 generic strategy of non-compliance with Croatia's legal

Page 12115

1 obligations? We have advised our client, in the

2 strongest possible terms, not to do so because indeed

3 that would have been in violation of international

4 legal obligations and Article 29 and perhaps other

5 bases in other international law.

6 And lastly, on that point, I am enormously

7 disappointed in the fact that the OTP continues to --

8 and I say continues because we had an exchange of

9 correspondence in this matter that I hope perhaps

10 erroneously closed this issue down to mischaracterise,

11 which is rather unusual for especially people trained

12 in Anglo-Saxon law, mischaracterised position, or I

13 should say relationship between counsel and the

14 client.

15 It is never the case. I've already mentioned

16 to Your Honours what has been the position of Republic

17 of Croatia regarding cooperation of the Tribunal. But

18 in any case, it has never been the role of counsel, in

19 this or any other representation to decide policy for

20 its client, be it Republic of Croatia, a corporation,

21 an individual. What we have always done and will

22 continue to do for this or any other client, and any

23 lawyer I know of serving in the legal capacity, is to

24 tell the client what its legal options are. It is the

25 client's choice what policy to adopt, but it is

Page 12116

1 incumbent upon any lawyer to the extent that there are

2 valid legal arguments which go to the question of what

3 precisely a client's obligation is, to advise the

4 client as to what legal options they have. If you

5 don't, indeed I would argue that in most circumstances

6 you would be committing malpractice, but it's always

7 the client's decision as to what policy to adopt.

8 And the last point I would like to make, and

9 I'm supplementing an observation made by my

10 distinguished colleague, Mr. Casey, relative to

11 Croatia's interest in cooperating with various

12 defendants, in addition to everything that Mr. Casey

13 has said, I would like to point out that obviously a

14 great deal of interest on Croatia's part in what is

15 happening in these cases is attributable precisely to

16 the fact that the OTP chose to prosecute these

17 individuals not merely for specific acts or activities

18 but in the process as indeed -- not inappropriate,

19 sought to paint a picture of actions by the Republic of

20 Croatia during certain portions of a conflict following

21 the dissolution of the former Yugoslavia, that, from

22 the position of Republic of Croatia, are completely

23 untrue and unfair. And the Republic of Croatia indeed

24 is in a difficult position or any other sovereign

25 state. It is not a party, it is not able to come in

Page 12117

1 and directly argue on the question of whether or not,

2 for example, there was an armed conflict in Central

3 Bosnia. It doesn't -- indeed, I think at one point the

4 Republic of Croatia has asked for an opportunity to

5 even submit an affidavit on that point in Kordic case

6 and I believe, if my memory serves me -- Blaskic case,

7 forgive me. If my memory serves me right, the problem

8 was that it was rather late in the trial, but also it

9 wasn't obvious what would be the probable value of such

10 a memorial given any status of a state like Croatia or

11 states like Croatia vis-a-vis this Tribunal. And it's

12 quite natural, as I said, in addition to what my

13 colleague, Mr. Casey, said, it's quite natural for a

14 state in a proceeding or proceedings where it feels its

15 behaviour in the past is being quite unfairly

16 characterised to be actively working with those parties

17 who do have an opportunity to say something in the

18 courtroom. It would be foolhardy. I cannot see any

19 other sovereign state acting in that fashion.

20 So to me, as long as everybody is operating

21 within the bounds of protective orders and that

22 certainly has been the case, I can't imagine how

23 anybody would try to base any imputation or inference

24 of conduct, good or bad for the defendant or for the

25 state involved, from those exchanges.

Page 12118

1 Thank you, Your Honours. I would be happy to

2 respond to it in writing, indeed I will at greater

3 length, but that's what I wanted to say today. I would

4 be happy to answer any questions.

5 JUDGE BENNOUNA: [Interpretation] I have a

6 question but, rather, for Mr. Casey, regarding his

7 comment concerning the interpretation of Rule 54 bis.

8 This Rule relating to orders to states for

9 the production of documents has the following form:

10 The criteria are indicated for issuing such an order.

11 I don't know whether Croatia is contesting that those

12 criteria are stipulated, that the documents be

13 identified, that they are relevant, that there was an

14 attempt made to obtain them by other means, through

15 cooperation and so on.

16 Then also there is the possibility for the

17 Judges rejecting that request, and that is not

18 under (B). Then we come to (C); that is the

19 possibility of appeal. And under (D), that applies to

20 us, and that is that we decide to hear the state in

21 audience, and such a hearing was decided and envisaged

22 for today, the 13th of January.

23 We are in the situation envisaged under (D),

24 and we come to the situation under (E), which doesn't

25 concern us. It doesn't concern us. What does concern

Page 12119

1 us is the (D) and the (F). Do we agree on that?

2 Under (F) it is stated that prior to the

3 hearing, a state may make an objection claiming

4 national security interest. And, as you say, the basis

5 for such an objection, the grounds, have to be

6 provided, specified, as is stated under (F).

7 Then if an objection is made, which you

8 appear to be doing, we either ask you to explain

9 yourself clearly or to require a special hearing to

10 hear your objection, which is something that you

11 haven't done.

12 So what are you telling us, make the

13 decisions first and then we shall see? But that is not

14 what is envisaged under Article 54 bis. It doesn't

15 function in that way at all. It does not oblige us to

16 make a ruling and depending on that ruling, because you

17 made an interpretation which is not correct. It is

18 clear from this Rule, which says that if you have an

19 objection, you can present it now, which do you not

20 wish to do, or you can require protective measures for

21 your objection to be protected to the maximum as well

22 as national security interests, and after the Court,

23 the Chamber has heard you, it is only then that we make

24 our ruling, taking into consideration the criteria,

25 which we don't know if you are contesting them or not

Page 12120

1 because you haven't said anything, and taking into

2 consideration the national security interests.

3 Therefore, we wish to draw your attention to

4 the fact we cannot, as you are saying, make a ruling

5 and give you 45 days to respond regarding national

6 security interests and then give you 60 days after

7 that. It doesn't work that way.

8 Therefore, if you have an objection based on

9 national security interests, you must make it, and if

10 you wish it to be protected, you must request a hearing

11 implementing Article 54, and it provides certain

12 guarantees under (F). If you don't do that, that means

13 that the Tribunal will go over your objection, that it

14 has no contents. It is up to you to give it

15 substance. You must request a hearing, and it is up to

16 us to decide whether we will grant it to you, providing

17 guarantees and necessary protections.

18 That is what I'm trying to say, that your

19 interpretation of Rule 54 is not a good one. It

20 doesn't function that way. It is not up to us to make

21 a ruling and then to give you an opportunity to see

22 whether the documents we are requesting can be claimed

23 national security interests. We do not first have to

24 say which are the documents corresponding to the

25 criteria and then you will see whether you will object

Page 12121

1 or not. That is not what is stipulated.

2 I apologise for drawing your attention to

3 this. Normally it is up to you to tell us, according

4 to the Rules of the Tribunal, whether you have an

5 objection concerning national security interests, if

6 you wish to present it. And if you're asking for a

7 hearing with protective guarantees, it is up to the

8 Tribunal to respond, the hearing will be held, and the

9 Trial Chamber will decide on the order to be issued

10 concerning the production of documents. That is what

11 is stipulated in the text.

12 I wanted to tell you this. I don't know

13 whether you have any comments, but I think you have to

14 react, because if you don't react, then it is our

15 understanding that you have no objection.

16 MR. CASEY: Well, Your Honour, I would like

17 the opportunity to react. I understand the

18 interpretation of the Rule that Your Honour has

19 outlined. As to the elements of Rule 54 bis, they

20 appear to restate the tests, the requirements adopted

21 by the Appellate Chamber in the 29 October, 1997

22 judgement, and Croatia has no objection to those

23 elements.

24 It is true that the Rule is crafted in such a

25 way that one would expect a state to make its national

Page 12122

1 security objections five days before a hearing.

2 However, the Rule does state that the state need only

3 identify those as far as possible, and what Croatia has

4 said is that looking at the requests from the

5 Prosecutor, it is impossible to tell, from the face of

6 the requests, all of the potential national security

7 objections that it may have. From the face of the

8 requests, it can see that some types of documents that

9 have been requested are likely to cause a national

10 security problem if they are released, and Croatia

11 stated in the January 7th submission the basis of those

12 concerns.

13 It also, at that time, asked the Court --

14 JUDGE BENNOUNA: [Interpretation] The question

15 is a very simple one. You have a request for the

16 production of documents. You have a principled

17 objection claiming national security interests. We are

18 agreed. You have a submission a week prior to the

19 hearing. It is up to you now to tell us whether, yes

20 or no, you wish to present in detail and within which

21 deadline those national security objections and under

22 which guarantees. It is up to you to tell us. If you

23 don't tell us, you cannot seek shelter by saying a

24 priori in a general manner, "We cannot tell," and so

25 on. That's very vague. It's up to you to be

Page 12123

1 specific. That is envisaged by the rule.

2 Are you asking for a hearing to present your

3 national security objections or not? If you are not,

4 then we will rely on your filings which simply -- your

5 submission, which simply says that there may be

6 national security interests. It is up to you to tell

7 us whether you want a hearing or not. If you are not

8 requesting a hearing, there is no national security

9 objection. That is the text and that is what I'm

10 asking you to consider.

11 We are not going to take a decision on the

12 production of documents and give you, after that, 45

13 days. That is not what is envisaged by the Rule. The

14 Rule says if you have an objection and if you want

15 guarantees, you ask for a hearing and you present your

16 objections.

17 I'm asking you to tell us clearly: Are you

18 here to speak on behalf of Croatia? As a professional

19 lawyer, you must respond to a legal text as it stands.

20 You may need instructions from the state that employs

21 you. It's up to you to tell us.

22 MR. CASEY: Yes, Your Honour. What Croatia

23 requested was not a hearing, admittedly, but it was the

24 practical equivalent of that, which is additional time

25 to make more specific objections. Whether it would

Page 12124

1 make sense to have those objections done in a hearing

2 context, it may well be most efficient and useful for

3 the Court to have a hearing at which an official

4 appears to articulate more specifically the national

5 security objections.

6 At the same time, it may be that once

7 documents have been collected and reviewed, there will

8 be no national security objection or, if there is, the

9 state will decide, as a matter of policy, not to assert

10 it but to surrender the documents in any case. It is

11 really only the elect representatives of the state that

12 can decide how to handle that.

13 I agree with Your Honour that the Rule

14 appears to contemplate that all national security

15 objections will be made by five days before the

16 hearing. And in some cases that may work very well,

17 because it will be obvious what documents are called

18 for and what documents the state has and what the

19 national security objection is. What I'm saying is

20 that here that is not the case. Therefore, we have

21 requested the Court essentially to grant us an

22 extension of time to make those objections.

23 Again, I believe the Court fully has the

24 authority to do that, both under Rule 54 and under

25 Rule 127 if it is disposed to do that.

Page 12125

1 I would like to make clear that we have not

2 asked for 45 days to make national security objections

3 and then an additional 60 days to produce the

4 documents. What we have asked for, effectively, is

5 60 days to produce the documents but within that period

6 to be able to raise, within 45 days, if some of the

7 documents -- if release of some of the documents would

8 cause a national security problem, to be able to bring

9 that to the Court's attention. It may well be that a

10 hearing would be the best way to do that, assuming

11 there are such additional objections. My colleague --

12 JUDGE MAY: Just one moment.

13 MR. CASEY: Yes, Your Honour.

14 [Trial Chamber confers]

15 JUDGE MAY: Yes, Mr. Casey. Is there

16 anything else you want to add?

17 MR. CASEY: No, Your Honour, but my colleague

18 Mr. --

19 THE INTERPRETER: Microphone, please.

20 MR. RIVKIN: Thank you, Your Honours. Just a

21 factual observation.

22 We fully appreciate that in the normal course

23 of things, of course, the interpretation advanced by

24 His Honour Judge Bennouna would, indeed, be

25 operational, which is to say the state would collect

Page 12126

1 the documents, the relevant -- identify all responsive

2 documents, would look at them, analyse them, and make a

3 decision as to whether or not to assert national

4 security objections.

5 We beg Your Honours' indulgence. It's

6 somewhat of an unusual time. Croatia is, of course, a

7 sovereign state and continues to function during the

8 transition period, as indeed other countries. But as a

9 practical matters, I hope Your Honours would not be too

10 displeased with the observation that this is, from a

11 bureaucratic perspective, a somewhat different

12 situation than we had, let's say, three months ago or

13 would have again three months from now, which is the

14 ability to get very senior people to focus on the

15 issues is somewhat limited. It is for that reason and

16 that reason only we're proceeding in this manner, and

17 one thing we certainly wish to avoid is to make a

18 request for a national security hearing in a situation

19 that it's quite possible that the relevant government

20 officials, once they complete the collection of

21 responsive documents and analyse them, would decide not

22 to make such an objection. I believe Croatia takes

23 those matters quite seriously, so we didn't want to

24 ask, without a compelling reason, for such a hearing.

25 Again, I want to assure Your Honours this is not -- no

Page 12127

1 disrespect is intended here.

2 JUDGE MAY: Thank you. Yes.

3 Mr. Nice, I don't know that any reply is

4 called for. If there is any matter you want to deal

5 with shortly, in terms of clarification, if you would

6 be short.

7 MR. NICE: I'll be short and, I hope, to the

8 point.

9 First, presumably a responsible government,

10 on receipt of the applications, will have identified

11 the documents, for only by identifying the documents

12 can it know what its response should be, particularly

13 its response in relation to national security

14 concerns.

15 These applications range between January and

16 July of last year. Therefore, there has already been

17 six months for the preparation of documents, as must

18 have taken place for this matter to be dealt with

19 responsibly, and identification of whether there are

20 any national security concerns to be raised.

21 Accordingly, there is no need for further time.

22 I remind the Chamber, particularly in light

23 of the last observation by Mr. Rivkin, that in, I

24 think, April of last year -- it may be this ought to be

25 in private session, it's paragraph 45 -- it's May of

Page 12128

1 last year, paragraph 45 -- to deal with it without

2 needing to go into private session, I just say this:

3 Time was taken with the forecast of exactly such a

4 hearing, the time having been taken, delay having been

5 bought. The hearing was then abandoned. Many of these

6 matters have already been litigated, insofar as they

7 have been in Blaskic, and accordingly preparation as to

8 how to deal with the documents was made by the state

9 then, years ago.

10 That's all that needs to be said about

11 national security.

12 The breadth of the orders were only appealed

13 in one of the Cerkez orders. That appeal was

14 rejected.

15 The vulnerability of an individual to

16 sanctions is dealt with at paragraph 51 of the Blaskic

17 decision. I needn't go through it. I know that the

18 Chamber is familiar with those passages. It's a

19 question of fact.

20 I observe, dealing with the overall arguments

21 raised about cooperation in the Kordic Defence and also

22 in relation to the newspaper articles and the meeting

23 that occurred between all the lawyers and other

24 representatives, I observe that there's no challenge to

25 the accuracy of what's said there. The newspaper

Page 12129

1 articles proceed, for the large part, on the basis of

2 minutes, the accuracy of which is not challenged. They

3 are generic in many places in what they describe of the

4 advice given and the response taken by the state of

5 Croatia. Such phrases as "dragging its feet" will be

6 familiar to the Chamber from its reading of the

7 papers. The matter is adequately pleaded and is in no

8 way met.

9 May we please have a private session for one

10 short matter.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 12130













13 page 12130 redacted private session













Page 12131

1 [Open session]

2 MR. NICE: We can only invite Your Honours

3 today to suggest to the Defence this: that in the same

4 way as it might have been wise and appropriate to

5 prepare documents on receipt of applications in order

6 to know what they were to deal with them, rather than

7 to put it off to hearing dates, that it might now be

8 wise for them to prepare against the orders, if any,

9 made when Judge Robinson makes the Court fully

10 composed. It might be wise to prepare for them on that

11 basis, because this Tribunal might think that it could

12 give very abbreviated time scales to reflect the

13 ability of Croatia to use the intervening time for

14 those purposes. The time scales proposed by Croatia

15 would, of course, take any production beyond the end of

16 the Prosecution case in Kordic.

17 JUDGE MAY: Thank you.

18 MR. CASEY: Your Honour, may I respond?

19 JUDGE MAY: Well, it will be very brief and

20 only on any new point. We don't want to hear any more

21 argument.

22 MR. CASEY: Yes, Your Honour.

23 I would point out that with respect to the 19

24 July submission, Croatia has only had that since

25 December, and it is very voluminous. Moreover, it is

Page 12132

1 not the case that one must collect all the documents to

2 respond to an order with objections if, on the face of

3 the order, it does not meet the requirements for

4 specificity, relevance, burden, and that kind thing,

5 and so the Prosecution is going from an improper

6 premise.

7 I would also like to respond to what the

8 Prosecution has said with respect to the remarks of

9 Mr. Smith, and perhaps we should be in closed session

10 for that.

11 JUDGE MAY: Well --

12 MR. CASEY: It will only take a moment.

13 JUDGE MAY: Mr. Casey, we have litigated this

14 matter thoroughly. If there's anything you want to add

15 to what Mr. Rivkin is going to say in writing, you can

16 say it, but I think we've heard enough on this topic.

17 Both sides have aired their views.

18 MR. CASEY: Thank you, Your Honour.

19 [Trial Chamber confers]

20 JUDGE MAY: Very well. We will consider this

21 matter, and we shall make our order when the Trial

22 Chamber is fully composed. The parties will be

23 informed in writing.

24 We'll adjourn now.

25 --- Whereupon the Ex Parte Hearing

Page 12133

1 concluded at 12.36 p.m.

























Page 12134