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  1. 1 Friday, 21 May 1999

    2 (Closed session)

    3 (Ex parte)

    4 --- Upon commencing at 10.01 a.m.









    13 pages 2903 – 2935 redacted – closed session (ex parte)













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    13 --- Recess taken at 11.05

    14 --- On resuming at 11.30 a.m.

    15 (Open session)

    16 JUDGE MAY: We are in open session now.

    17 This is a hearing of a Prosecution

    18 application for an order for the production of

    19 documents, dated the 16th of April. We have the

    20 application before us. We bear in mind, of course, the

    21 Blaskic guidelines or criteria in the judgement of the

    22 Appeal Chamber of the 29th of October, 1997. The

    23 request is to issue a binding order to Croatia to

    24 produce the documents listed within an annex within 45

    25 calendar days, and in the event of nondisclosure, to

  2. 1 appear before the Trial Chamber to show cause.

    2 It's your application, Mr. Nice.

    3 MR. NICE: I've very fully argued in the

    4 motion of the 16th of April --

    5 THE INTERPRETER: Microphone, please.

    6 MR. NICE: -- fully argued in the motion of

    7 the 16th of April, we know nothing of the intended

    8 response of the state of Croatia to the motion, and in

    9 those circumstances, it may be better if I add nothing

    10 now but reserve what may be of further assistance when

    11 I hear the response of Mr. Casey, unless there is

    12 anything that's troubling the Chamber at the moment.

    13 The material sought -- perhaps I should then

    14 just outline -- the material sought is plainly relevant

    15 for the reasons set out in the motion, both because of

    16 the clear evidence of close contacts between Zagreb and

    17 those intimately involved in the subject matter of our

    18 case, because of the need to prove international armed

    19 conflict, they are all dealt with by the request or the

    20 documents subject of the request, we would invite the

    21 Chamber to say, for example, from evidence of regular

    22 meetings in Zagreb, of which it's already heard at the

    23 highest level, that it's simply impossible to accept

    24 that such meetings weren't documented, and that the

    25 documents will plainly be of assistance to this Chamber

  3. 1 and should be produced.

    2 JUDGE MAY: Mr. Casey?

    3 MR. CASEY: Yes, Your Honour. Let me begin

    4 by saying Croatia has not filed a written answer to the

    5 Prosecutor's application; it was our understanding that

    6 this was Croatia's opportunity to respond, and so we

    7 have not responded hitherto.

    8 With respect to the application, Croatia does

    9 not believe that the OTP's application meets the

    10 requirements of the Appeals Chamber's 29 October, 1997,

    11 judgement, any more than its original July 24th, 1998,

    12 application did. Although this question requests seeks

    13 materials regarding certain named individuals, the

    14 requests themselves continue to seek materials

    15 identified only by category and not the specific

    16 relevant documents required by the Appeal Chamber's

    17 decision.

    18 Indeed, the very number of the OTP's requests

    19 is, in and of itself, astounding. When the 41

    20 individual categories of documents demanded by the OTP

    21 are considered, with the 22 separate subject matter

    22 areas listed in attachment 1, each has 22 subparts, for

    23 a grand total of 902 individual requests, each one

    24 seeking all documents or records of various types in a

    25 particular category that may be in the possession of

  4. 1 any agency of the Croatian government. This, in and of

    2 itself, renders the request unduly onerous and

    3 inconsistent with the law of the International

    4 Tribunal.

    5 In suggesting that the application meets the

    6 requirements for a binding order under Article 29(2),

    7 the OTP has taken a position fundamentally at odds with

    8 the language and spirit of the 29 October, 1997,

    9 judgement. The OTP continues to treat the International

    10 Tribunal's authority to issue biding orders as a

    11 general investigative tool. Is it not. The authority

    12 of the International Tribunal to issue binding orders

    13 to states, under Article 29(2), as explained by the

    14 Appeals Chamber in --

    15 THE INTERPRETER: Please slow down.

    16 MR. CASEY: -- my apologies -- as explained

    17 by the Appeals Chamber in the 29 October, 1997,

    18 judgement is, as the Chamber explained, a novel and

    19 unique power. As the Chamber continued, under

    20 customary international law, states, as a matter of

    21 principle, cannot be ordered, either by other states or

    22 by international bodies. As an extraordinary power,

    23 one exercised in derogation of the ordinary rules of

    24 international law, the International Tribunal's

    25 authority to issue binding orders to states should be

  5. 1 narrowly construed and in accordance with the Appeals

    2 Chamber's strict ruling.

    3 In this respect, and in determining the

    4 proper scope of the International Tribunal's authority

    5 under Article 29(2), reference to the power of national

    6 courts to order production of evidence from third

    7 parties, whether in civil or criminal cases, which in

    8 most jurisdictions is narrow in any case, are not

    9 particularly instructive.

    10 As the Appeals Chamber stated in its 29

    11 October, 1997, judgement --

    12 JUDGE MAY: Just a moment, Mr. Casey. Where

    13 are you reading from, please?

    14 MR. CASEY: My notes, Your Honour.

    15 JUDGE MAY: I'm sorry. I thought you had

    16 been referring to the Blaskic judgement.

    17 MR. CASEY: The first quote that I mentioned

    18 is on page 17 of the judgement. That would be paragraph

    19 26, in about the middle of the page. The second

    20 quotation, which I'm about to read, is at paragraph 23,

    21 which would be on page 14.

    22 As the Appeals Chamber stated in its 29

    23 October 1997 judgement, the Appeals Chamber holds that

    24 domestic judicial views or approaches should be handled

    25 with the greatest caution at the international level,

  6. 1 lest one should fail to make due allowance for the

    2 unique characteristics of international criminal

    3 proceedings.

    4 Specifically with respect to what the Appeals

    5 Chamber termed the domestic analogy between national

    6 courts and the International Tribunal, it noted that,

    7 and I quote, "International courts do not necessarily

    8 possess, vis-à-vis organs of sovereign states, the same

    9 powers which accrue to national courts in respect of

    10 the administrative, legislative and political organs of

    11 the state. Hence, the transposition onto the

    12 International Community of legal institutions,

    13 constructs or approaches prevailing in national law may

    14 be a source of great confusion and misapprehension."

    15 That is at paragraph 40 of the Blaskic judgement.

    16 JUDGE BENNOUNA: All this is related to

    17 subpoena, isn't it? All the reasoning is related to

    18 the question of subpoena.

    19 MR. CASEY: Well, Your Honour --

    20 JUDGE BENNOUNA: We are not subpoenaing

    21 Croatia, or we are not discussing the question of

    22 subpoenaing from Croatia. Have this in mind.

    23 MR. CASEY: Yes, Your Honour. As a matter of

    24 fact, the case, while it did quash a subpoena issued to

    25 Croatia, also set the boundaries of, quote/unquote,

  7. 1 "binding orders" under Article 29(2), and so the

    2 Court's language here is fully applicable to binding

    3 orders as well as the original subpoena that was at

    4 issue in that case.

    5 JUDGE BENNOUNA: I think there is a

    6 confusion, really. You are confusing between the

    7 binding order, which is accepted, really, by this

    8 Chamber, and the question of subpoena. All what is

    9 said and what you will recall here, what you are citing

    10 is related to the question of subpoena. The

    11 distinction is very clear, either in the decision of

    12 the Court or in all the commentaries which were given,

    13 you know, from this date by the scholars, by the

    14 professors, in the international reviews and so on, and

    15 I think it really will not help our Chamber to return

    16 to this discussion which is now very known, a very

    17 known distinction, so really, really, in all the

    18 faculties of law, I can assure you.

    19 MR. CASEY: Well, Your Honour, with respect,

    20 I think the Appellate Chamber was speaking a little

    21 more broadly, and the question of whether, as a matter

    22 of ordinary international law, a state can be

    23 compelled, whether it be under the name of subpoena or

    24 under the name of binding order, I think the answer is

    25 that as an ordinary matter, states cannot be compelled

  8. 1 to, frankly, do anything by other states, with the

    2 exception of some very narrow instances where you may

    3 have a Security Council resolution specifically

    4 requiring a state or actually requiring other states to

    5 compel a state to do something.

    6 JUDGE BENNOUNA: (Interpretation) You're

    7 saying, Mr. Casey, that it is on the basis of the

    8 Security Council, which established this Tribunal, and

    9 in Article 29 it has the authority to order a state,

    10 and that this was accepted by this Tribunal.

    11 But subpoena, subpoena is a different

    12 decision. It means the transposition of the national

    13 and international law, and this was rejected by this

    14 Tribunal. Now, this distinction between these two

    15 things is quite clear, and the Tribunal is fully

    16 empowered to order and to request and bind a state to

    17 produce a certain number of documents. I do not think

    18 that this is at issue any longer, and we do not have to

    19 evoke -- we can go back to Chapter 7, but we are not

    20 discussing it here. This, what we are talking about,

    21 has been accepted generally as something that the

    22 Tribunal may do.

    23 The transposition of certain national issues

    24 to international law is a different matter, but I

    25 believe that to us, it's quite clear, and if you are

  9. 1 not clear about these distinctions, then evidently

    2 something has to be done about that.

    3 MR. CASEY: Your Honour, I see the point

    4 you're making. Croatia does not contest the authority

    5 of the International Tribunal to issue binding orders,

    6 as was decided in the Appellate Court's judgement. All

    7 I'm saying is that in making that addition, the Court

    8 carved out, based upon Article 29(2), an exception to

    9 the ordinary rule of international law, and therefore

    10 it should be narrowly construed. I'm not saying that

    11 the Court does not have the authority to issue binding

    12 orders.

    13 The purpose of Article 29(2) is not to permit

    14 the OTP to conduct a general investigation, seeking

    15 documents that might be useful to the OTP's work in

    16 this or other cases or that might contain relevant

    17 information. Rather, the International Tribunal's

    18 authority to issue --

    19 THE INTERPRETER: Will you please slow

    20 down?

    21 MR. CASEY: The International Tribunal's

    22 authority to issue binding orders, under Article 29(2),

    23 is a device whereby states may be compelled to produce

    24 specific documents that each are deemed relevant to the

    25 trial of the accused and that are limited in number.

  10. 1 These criteria, as the Trial Chamber noted in its 22

    2 January 1999 order to Croatia, are cumulative and

    3 mandatory.

    4 The OTP's 16 April 1999 application does not

    5 meet these criteria. Indeed, the OTP concedes that it

    6 cannot, and I quote, "cannot specify the precise

    7 nature, date, author, recipient, and content of each

    8 specific document." This, however, is precisely what

    9 the Appellate Court decision requires.

    10 Even where the title, date and author of a

    11 document are known, the specific document sought must

    12 still be identified. Here, the OTP cannot even

    13 identify the nature of the documents it seeks.

    14 In support of its request, the OTP relies

    15 upon the separate opinion of Judge Shahabuddeen in an

    16 order issued to Croatia on July 21st, 1998, in the

    17 Blaskic case. This reliance is misplaced.

    18 First, Judge Shahabuddeen's opinion was

    19 attached to an order that, by and large, did request

    20 specific --

    21 THE INTERPRETER: Counsel, slow down. The

    22 interpreters do not have a copy.

    23 JUDGE MAY: There is a problem if you read.

    24 If someone is reading something, they are inclined to

    25 go much more quickly, and everything here has to be

  11. 1 interpreted. It's also more difficult for those trying

    2 to follow if you go too quickly, Mr. Casey. So can you

    3 please limit yourself?

    4 MR. CASEY: I will endeavour to slow down.

    5 Many of the requests in that order could, in

    6 fact, fairly be characterised as categorical in

    7 nature. They were identified as members of a class, in

    8 Judge Shahabuddeen's words. However, that

    9 identification was specific enough so that the actual

    10 documents desired by the OTP could be separated from

    11 all the other materials in Croatia's archives that

    12 might contain evidence relevant to the Blaskic trial,

    13 and these were emphatically limited in number.

    14 For example, one such request in paragraph 3

    15 of that order sought military information summaries for

    16 the Second Guards Brigade, the Thunderbolts,

    17 quote/unquote, "from 1st September 1993 to 31 October

    18 1993 while serving in Republic of Bosnia and

    19 Herzegovina." This request clearly meets the 29

    20 October 1997 judgement, even though it does not identify

    21 each document by title, date and author but rather

    22 identifies those documents as members of a class.

    23 The type of documents sought, a, quote,

    24 "military information summary", is identified, as are

    25 the particular military information summaries desired,

  12. 1 those for the Second Guards Battalion. Such summaries

    2 are generally kept on a daily basis, as I understand

    3 it.

    4 The request is further limited by date,

    5 September 1st through October 31st of 1993, and place.

    6 Only summaries prepared while the particular unit was

    7 serving in Bosnia and Herzegovina were called for. At

    8 most, some 60 odd documents could have been

    9 responsive.

    10 This is the level of specificity Judge

    11 Shahabuddeen had before him in writing this opinion,

    12 suggesting that categorical requests could be made.

    13 This level of specificity is nowhere to be found in the

    14 OTP's 16 April 1999 application.

    15 It is true that Judge Shahabuddeen goes on in

    16 his opinion to suggest that, quote, "I do not see that

    17 a demand for hundreds of documents is mechanically

    18 excluded if identification by reference to a

    19 clearly-defined category is readily possible." In his

    20 view, requests should be limited based upon an

    21 assessment of whether the number of documents sought is

    22 oppressive rather than an automatic prohibition of

    23 requests totalling in the hundreds.

    24 It might well be that a type of

    25 specifically-identified document could easily be

  13. 1 produced, even if hundreds of such individual documents

    2 existed. However, a request seeking scores of

    3 different kinds of documents, resulting in the

    4 production of hundreds or thousands of documents,

    5 clearly cannot.

    6 In any case, the Appeals Chamber's 29 October

    7 1997 judgement, both in plain language and spirit,

    8 requires that requests must identify a limited number

    9 of documents, and this language must be accorded some

    10 meaning in the context it was written.

    11 To the extent that Judge Shahabuddeen's

    12 opinion would eliminate this requirement, interpreting

    13 it out of existence and transforming the Article 29(2)

    14 binding order into a general investigatory tool, it is

    15 at odds with the Appeals Chamber's unanimous 29 October

    16 judgement and with the governing rules of international

    17 law and cannot control.

    18 Turning to the actual requests in the 16

    19 April 1997 application, the scope of these requests

    20 again is breathtaking. Altogether, as I mentioned,

    21 there are 902 separate requests, each demanding all

    22 documents in particular categories, a number of these

    23 categories repeat requests already rejected by the

    24 Trial Chamber. For instance, in the 24 July 1998

    25 application, the Prosecutors sought all records of

  14. 1 various sorts relating to five meetings between

    2 Croatia's President Tudjman --

    3 JUDGE MAY: You're going to refer to some

    4 specific matters. You don't, by any chance, have it in

    5 writing, do you, those which you say are repeating

    6 requests which have been rejected?

    7 MR. CASEY: I do not have it in -- I have a

    8 couple of examples. I do not have it completely

    9 written up. I would be pleased, certainly, to provide

    10 that to the Court, but I do not have it with me now.

    11 JUDGE MAY: Refer us, then, to those that you

    12 say are repeated.

    13 MR. CASEY: Very well.

    14 For example, in category 9(d) of the original

    15 request, the Prosecutor sought -- or rather that is in

    16 request 9, the Prosecutor sought records of various

    17 sorts relating to five meetings between President

    18 Tudjman and, among others, Mate Boban in the city of

    19 Split on 5 November 1993, and that is category 9(d).

    20 Now the OTP wants all records again of

    21 various times of meetings between Mate Boban and

    22 President Tudjman over a nearly three-year period of

    23 time, addressing any of 22 subject areas, including,

    24 quote/unquote, "the war, conflict, or hostilities in or

    25 upon any territory or area of the former Yugoslavia."

  15. 1 JUDGE ROBINSON: What number request is

    2 that?

    3 MR. CASEY: That is item 4 of the subject

    4 matter group, and the request is -- I'm sorry, it's D

    5 of the subject matter group and request 4 of the

    6 annex.

    7 Indeed, the inclusion of this subject matter

    8 area, supposedly a limiting factor, has, in fact,

    9 effectively eliminated any limiting factor contained in

    10 the other 21 subject matter categories referring to the

    11 conflict or hostilities in the former Yugoslavia.

    12 Croatia has not, of course, had the

    13 opportunity to review the OTP's relevance claims, but

    14 it is inherently incredible that each of the documents

    15 called for by this request could be deemed relevant to

    16 Mr. Kordic's trial.

    17 Similarly, in its original application, and

    18 this is category 1 of the original application, the OTP

    19 sought, among other things, orders, communications,

    20 plans, memoranda of understandings and directives from

    21 President Tudjman to Defence Minister Susak, or their

    22 representatives, directed to Mate Boban and his

    23 representatives from May 1st, 1992, to January 1st,

    24 1994 --

    25 JUDGE MAY: Just slow down, please.

  16. 1 MR. CASEY: Sure. -- regarding five subject

    2 matters including, among others, the presence, use and

    3 deployment of HV military police and intelligence

    4 personnel in Bosnia and Herzegovina, and that was

    5 subpart A, and under subparts B and C, the Prosecution

    6 requested documents relating to the military and

    7 political goals and objectives of the HV and HVO

    8 military police and intelligence forces in Central

    9 Bosnia, including the municipalities of Vitez,

    10 Busovaca, Foca and Kiseljak.

    11 In the April 16th application, the OTP has

    12 asked, and this would be subject matters F, G and H,

    13 when put together with request, I believe it is, 3

    14 or -- yes, that would be actually requests 4, 5 and 6

    15 and 7 through -- and 7 and 8, or, I'm sorry, no, 7 and

    16 then 10 and 11, requesting documents including orders,

    17 directives, correspondence and et cetera from President

    18 Tudjman or Minister Susak to Mate Boban during a

    19 three-year period the 1st of June, 1991, to 31 March

    20 1994, dealing with the presence, use and deployment of

    21 Croatian government forces or personnel on or within

    22 the territory of Bosnia and Herzegovina, and that is

    23 subject matter F, or the military and political goals

    24 of Croatian government forces or Bosnian Croat forces

    25 within the whole territory of Bosnia and Herzegovina,

  17. 1 and that is in subject matters G and H.

    2 In fact, the OTP is not merely on a fishing

    3 expedition here, it is using drift nets. Of the 41

    4 principle categories of documents requested by the OTP,

    5 only 13 involve materials sent or received or kept,

    6 perhaps, by officials of the Croatian government,

    7 materials most likely to be in the Croatian

    8 government's possession. The balance of the OTP's

    9 requests involve individuals who, at the relevant

    10 times, were not officials of Croatia but either of the

    11 Bosnian Croat entity or the HVO. Seeking these

    12 materials from Croatia is merely a shot in the dark.

    13 Indeed, these are precisely the kinds of

    14 material one would expect to find in the HVO or

    15 Herceg-Bosna archives, which, as I understand it, were

    16 indeed raided by the OTP in September of last year. If

    17 the OTP already has access to this material, it is

    18 entirely inappropriate to seek duplicates from

    19 Croatia.

    20 Could the OTP's request be made to meet the

    21 standards articulated by the Appeals Chamber? In its

    22 current form, no. Could a request that meets those

    23 standards be formulated? Of course.

    24 If, for the moment, we jettison the

    25 paraphernalia of discovery, the interminable

  18. 1 definitions, the indicatings (sic), recordings,

    2 evidencings (sic) and discussings (sic), and focus on

    3 individual documents that the Court could perhaps deem

    4 relevant to the accuseds' trial, it is possible the OTP

    5 largely did just this in the 21 July 1998 order to

    6 which Judge Shahabuddeen's opinion was attached. But

    7 what the OTP is not entitled to do is use Article 29(2)

    8 as a means to obtain access to hundreds of categories

    9 of undefined documents in order to determine whether

    10 anything of use or interest may be found therein. That

    11 is what the OTP has again attempted to do in the 16

    12 April 1999 order, and the Trial Chamber should

    13 accordingly reject that application.

    14 Thank you, Your Honour.

    15 JUDGE ROBINSON: Mr. Casey, have you

    16 exhaustively listed all those requests which you say

    17 are repeats and, more significantly, were disallowed

    18 originally by the Chamber?

    19 MR. CASEY: Your Honour, those are the ones

    20 that struck me when I was preparing. I have not gone

    21 through every category to determine which are

    22 duplicated. As I said, I would be pleased to do that

    23 for the Court, if you wish, and submit something in

    24 writing to that effect.

    25 JUDGE MAY: Well, it's a pity that you

  19. 1 didn't, Mr. Casey, if you're going to rely on the

    2 point. It would have been much better to have handed

    3 us a document so that we had it before us.

    4 MR. CASEY: Yes, Your Honour. I'm sorry, I

    5 should have thought of that.

    6 JUDGE MAY: Very well. We'll hear the

    7 Prosecutor.

    8 MR. NICE: Certainly, there's a measure of

    9 repetition.

    10 Just to remind the Chamber of what it's

    11 probably already recollected, the categories excluded

    12 in respect of the earlier application were excluded, I

    13 think, on the grounds of relevance, and there was an

    14 application by us to reconsider, which was rejected as

    15 a matter of principle by the Chamber. We were out of

    16 time to deal with the matter on appeal.

    17 The matter was brought back to you in a new

    18 form, with absolutely nothing to stop that being done.

    19 The Chamber, in our respectful position, is in a

    20 position to consider it afresh on its merits.

    21 If one turns to attachment 1 of our

    22 application, which is the categorisation, as it is

    23 said, of topics, this in part responds to one of the

    24 earlier objections by the State of Croatia to an

    25 earlier formulation in the request, where it was said

  20. 1 that the subject matter of any meeting or communication

    2 was so widely defined that it could relate either, I

    3 think, to lunch or possibly to traffic tickets,

    4 something to that effect.

    5 Seeing the theoretical strength of that

    6 argument, it seemed appropriate for us to attempt to

    7 define what is and what everybody knows is at issue

    8 here. Thus, attachment 1 identifies topics in a

    9 sensible and coherent way and hopes, by those topics,

    10 to cover the whole territory with which, as everybody

    11 knows, we are interested.

    12 And when I say "the territory," which, as everybody

    13 knows, is that in which we are interested, I'm saying

    14 no more than the obvious. The State of Croatia well

    15 knows -- and it's important to have this in mind, from

    16 the way this case has been presented from its opening

    17 and since -- what is said to be significant in the

    18 meetings and communications between Croatia and those

    19 in Bosnia. It has two absolutely fundamental

    20 significances: One, international armed conflict; two,

    21 the role, the function, the authority, the purpose, the

    22 intention of the defendants, but in particular of the

    23 defendant Kordic.

    24 It's not a difficult story to narrate or to

    25 understand, and accordingly, if the Chamber will be

  21. 1 good enough to come back and look at five pages before

    2 where we set out the documents that are sought, it's

    3 perhaps helpful to put oneself in the mind of or in the

    4 position of those dealing with this matter in Croatia,

    5 knowing the case raised against them -- not against

    6 them; against Kordic, and the issues that concern

    7 them -- was Kordic here to take instructions, to take

    8 soundings, to be advised on the conduct of affairs in

    9 Bosnia?

    10 Supposing the answer is yes, the question

    11 would then be: "And where is that documented?" They

    12 will know.

    13 Let us look, therefore, at paragraph 4, which

    14 I think has been referred to by Mr. Casey -- or 3 --

    15 sorry, 3 is better; I'm grateful to Mr. Scott.

    16 They will know whether communications with

    17 and between Kordic and Franjo Tudjman were dealt with

    18 by what could be described as orders, directives,

    19 correspondence, letters, notes, or reports, and they

    20 will also know that if we limit ourselves, for example,

    21 to letters or to orders, and that if something can be

    22 properly categorised as a directive or a plan or a

    23 message, then, as it were, we would have failed by our

    24 particularity. So we absolutely have to cast our

    25 description sufficiently wide to cover all the

  22. 1 categories of material as it may be described.

    2 But the underlying issue is a simple one.

    3 There were communications, they inevitably were

    4 documented, and finding those documents, frankly, can't

    5 be that difficult to those who know that they were

    6 created. Describing them is inevitably more difficult

    7 for us, but the description we provide is not onerous

    8 in any sense and certainly doesn't lack sufficient

    9 specificity.

    10 Likewise, Number 4, where it says minutes,

    11 notes, records, audio recordings, photographs, video

    12 recordings of or related to meetings between Franjo

    13 Tudjman and Mate Boban, the same significance: What is

    14 going on as between these two parties that concern Mate

    15 Boban with his role in Bosnia, how are they recorded?

    16 Yes, they were recorded. We have to ensure that the

    17 words we use don't allow a record to slip between our

    18 definitions so that the party concerned, knowing full

    19 well what's at stake, is able to say, "No, they've used

    20 the word 'note' and 'record,' and this is a minute, so

    21 we won't provide it."

    22 As was explained in our application, the

    23 apparent number and length of the list of requests and

    24 its details boils down to a very much shorter and

    25 smaller real target area. It's done by a number of

  23. 1 plainly relevant individuals. It's done by the

    2 combination of those individuals together, and it seeks

    3 records, that the state of Croatia will know how it

    4 describes, covering those issues. They are plainly

    5 relevant, and the request we have made falls fair and

    6 square within the requirements of the Blaskic order.

    7 Incidentally -- I'm grateful to Mr. Scott

    8 again -- in our response of August of last year, but I

    9 can just read it to you, there was this paragraph,

    10 paragraph 4 -- I'll read it slowly -- "The former chief

    11 of the Croatian army has recently confirmed that many

    12 if not all the documents which the Prosecutor has been

    13 seeking since the 15th of January, 1997, are in the

    14 archives of the Ministry of Defence of the Republic of

    15 Croatia in Zagreb."

    16 In an article in the 27th of September, 1998,

    17 edition of the Croatian newspaper Slobodan Dalmacia

    18 concerning the recent execution of search warrants in

    19 Bosnia and Herzegovina looking for many of the same or

    20 similar documents or information, General Janko Bobetko

    21 is quoted as saying: "I can't understand why they are

    22 looking for documents in Herzegovina and Central Bosnia

    23 when all the documents are kept in the archives of the

    24 Ministry of Defence in the Republic of Croatia."

    25 And that, I think, just responds to the point

  24. 1 suggested that we've raided documents elsewhere. I

    2 think what Mr. Casey was referring to was the execution

    3 of a search warrant that was lawfully authorised, and

    4 publicised as such, and there is no question of there

    5 being a search here for duplicates of documents already

    6 available. That would be a waste of everyone's time.

    7 If this material that we assert must exist in records

    8 as we have, we hope, succinctly but accurately

    9 described, if such material was already available to

    10 us, we wouldn't be seeking it elsewhere. It isn't, and

    11 it must be available there, and that's why we seek it.

    12 Mr. Scott has prepared, in relation to the

    13 possible arguments on relevance that have been, I

    14 think, touched on by Mr. Casey, a small bundle of

    15 exhibits, and if it can help further with the question

    16 of whether these documents are too broad for the

    17 categories, if there is any other issue on the question

    18 of repetition of our request, may he just present this

    19 small bundle of exhibits?

    20 JUDGE MAY: Yes, Mr. Scott.

    21 MR. SCOTT: Thank you, Your Honour. If I

    22 could hand the usher several documents, I think there's

    23 four, so perhaps for the Court initially -- and I'm

    24 sorry if I didn't make enough initially -- but there's

    25 one for Mr. Casey, and there's a second bundle as well,

  25. 1 so there are two bundles of four.

    2 Allow me to start, only in passing, with the

    3 first one, which is titled "Report," and I know we're

    4 in open session, Your Honour, and I'm not going to make

    5 any reference to the content of the document other than

    6 this: The representations of arguments made by

    7 Mr. Casey to this Court, to this Chamber, about the

    8 level of cooperation and assistance in the Blaskic

    9 Chamber, we could not possibly disagree with more

    10 strongly, and this document in particular will indicate

    11 some additional background to this Chamber on the true

    12 state of Croatia's cooperation with this Tribunal. And

    13 I'll leave it at that for the moment, but this position

    14 has gotten to the point where it is misleading to this

    15 Court for this Chamber not to have this information in

    16 front of it.

    17 As to the separate packet of exhibits, what I

    18 want to touch on very quickly is, in part, Mr. Casey's

    19 position that some of the material we asked for in our

    20 request might, on the surface, appear to be more likely

    21 found in the Federation of Bosnia and Herzegovina. As

    22 I hope the court is beginning to understand more all

    23 the time -- and I'm sure it does, forgive me if I

    24 suggest otherwise, I'm sure the Court does

    25 understand -- it's the Prosecutor's position, and we

  26. 1 believe the evidence shows now, and will ultimately

    2 show at the conclusion of trial, that there was a deep

    3 and indeed virtually incestuous relationship between

    4 the Bosnian Croats and the government of Croatia. On

    5 one day you hear from one group that the documents are

    6 in Croatia, and the next day, literally,

    7 representatives from the government of Croatia come

    8 here and tell you, "They're in the Federation."

    9 Well, they're somewhere. One group says

    10 they're in Croatia, and the next group says they're in

    11 the Bosnian Croat side of the Federation. We are

    12 therefore required to seek them from both places.

    13 As an example, the first document of the 22nd

    14 of February, 1993 -- this is simply as a sampling.

    15 This is a communication from an HVO commander to an HV

    16 officer -- the 4th Split Brigade is a regular Croatian

    17 army unit, an HV unit, stationed in Split -- concerning

    18 the death of an HV soldier, not on the borders of

    19 Croatia and Bosnia, but deep in Central Bosnia, in

    20 Gornji Vakuf, an area that is directly relevant to this

    21 case. This HV soldier was killed in fighting between,

    22 as this HVO officer says, the so-called

    23 Bosnia/Herzegovina army and the HVO, was wounded by a

    24 sniper bullet and ultimately died in fighting. This

    25 was an HVO soldier in Central Bosnia.

  27. 1 The next document, dated the 16th of May,

    2 1993, is a similar letter or communication from

    3 actually the same HVO officer, Mr. Tokic, also

    4 addressed to a regular Croatian army HV unit, the 2nd

    5 Brigade of the Croatian army, requesting to use "your

    6 officer," that is, your regular HV army, Croatian army

    7 officer, "Mate Kunkic, at our disposal in the zone of

    8 responsibility of our brigade." Where is that

    9 brigade? Where is Mr. Kunkic, an officer of the

    10 Croatian army, located? Gornji Vakuf, in Central

    11 Bosnia.

    12 The letter goes on, and I won't take the

    13 Court's time to read it, imploring the HV to leave this

    14 officer in Central Bosnia, for he has been of great

    15 service.

    16 For instance, at the last sentence of the

    17 next-to-last paragraph, Mr. Tokic makes this

    18 statement: "There is no need to say that since last

    19 April, in these areas, he" -- that is, Mr. Kunkic --

    20 "and his Alpha Force unit have considerably assisted

    21 in the organisation of our headquarters and later in

    22 the brigade. This HV army officer has considerably

    23 assisted in Central Bosnia." Alpha Force was an HVO

    24 force in Central Bosnia, the evidence will show, and

    25 apparently under the command of an HV officer.

  28. 1 Why, again, is -- why do we ask for

    2 documents, for instance -- one moment, Your Honour --

    3 for instance, in paragraph 28 of our request, of our

    4 annex -- and I will give the Court a moment to find

    5 that, because it's important -- in terms of our annex

    6 of requested items, as an example, paragraph 28.

    7 The evidence will show, and I don't think

    8 there will be any bona fide dispute about this,

    9 Slobodan Praljak was the chief of staff, the senior

    10 officer of the HVO, throughout Herceg-Bosna in large

    11 parts of 1993. So Mr. Casey may say, well, why are we

    12 asking for these documents from Croatia? Wouldn't the

    13 Federation -- wouldn't the Bosnian Croat Bosnian side

    14 of the Federation, the very -- have these documents?

    15 Well, the evidence will show that Slobodan

    16 Praljak was in fact a professional HV army officer --

    17 had been -- had been moved from the HV in Croatia to

    18 become the chief of staff of the HVO during most of

    19 1993. And the one document, just simply as a sampling,

    20 that I've given the Court, dated the 6th of November,

    21 1992, the next one in the packet, is, in fact, an order

    22 signed by Major-general Slobodan Praljak to all members

    23 of the HVO and BH army, dated the 6th of November,

    24 1992.

    25 Now, what happens to this very same

  29. 1 Mr. Praljak, that -- and I go to the last exhibit and

    2 finish with this, Your Honour -- the last exhibit in

    3 this packet, which is the one that was referred to

    4 earlier, now copied and provided to the Court -- an

    5 order from the Minister of Defence of the state of

    6 Croatia, Mr. Susak, dated the 21st of December, 1993.

    7 And who is it, who is it that Mr. Susak, the Minister

    8 of Defence of the state of Croatia, puts in charge of

    9 the archive for the Croatian Ministry of Defence?

    10 For the Croatian -- an archive, again, likely to have a

    11 tremendous number of directly relevant documents for

    12 this Court that this Court should be able to see, that

    13 this court should examine -- and who does he put in

    14 charge of this? Slobodan Praljak, the same general who

    15 had just, days before this order -- days before this

    16 order -- was in Bosnia, was the chief of staff of the

    17 HVO.

    18 That is the reason why we have to ask for

    19 these documents from the Federation and from Croatia,

    20 because, I'll be very blunt with the Court, we can't

    21 tell for sure which place they are. We think there are

    22 reasons to believe that they are in both places or in

    23 one place. But given the relationship between the

    24 Bosnian Croats and Croatia, it is constantly a shell

    25 game. You lift the shell, and where is the pea? And

  30. 1 the only thing the Prosecutor can do is lift all the

    2 shells until we find it, and so this Court can consider

    3 the evidence.

    4 Thank you, Your Honour.

    5 JUDGE MAY: Mr. Casey, if you want to comment

    6 on the material which the Prosecutor has put in, then

    7 you may do so.

    8 MR. CASEY: Thank you, Your Honour, just a

    9 few words.

    10 To begin with, with respect to the report in

    11 the other Trial Chamber, I have stated that Croatia has

    12 indeed cooperated. I have never suggested that the

    13 Office of the Prosecutor is satisfied with that.

    14 Indeed, the Prosecutor, Justice Arbour, any time she

    15 can find a crowd, seems to assert that Croatia has not

    16 cooperated to her satisfaction. Croatia's position is

    17 that it is not required to cooperate to her

    18 satisfaction; it is required to carry out its

    19 obligations to the Security Council, and through that,

    20 to the international Tribunal.

    21 With respect to the documents that the

    22 Prosecution has provided with respect to their claims

    23 of relevance, I'm not going to try to analyse them,

    24 since this is the first time I've seen them. I'm not

    25 even quite sure whether that would be appropriate,

  31. 1 since Croatia's interests in this matter do not include

    2 whether the Prosecutor can or cannot prove its case.

    3 Croatia, however, has stated before the other

    4 Trial Chamber that it was involved in Bosnia, that it

    5 did give help to the HVO. It has stated that a number

    6 of both officers and regular private soldiers who were

    7 serving in the HV, many of whom indeed had come from

    8 the Herzegovinian areas of Bosnia when the war began

    9 with Serbia to fight in the Republic of Croatia's

    10 forces, when that war spread to Bosnia returned there

    11 and fought for the HVO. Some of those individuals

    12 later returned to the HV, General Praljak, I believe,

    13 being an example of that. All of that is indeed

    14 documented in the materials given to the Blaskic Trial

    15 Chamber.

    16 The extent to which the Prosecutor wishes to

    17 argue how -- what implications these particular

    18 documents may have is really a matter more, I think,

    19 for the Defence as opposed to Croatia. However, with

    20 respect to the bearing these documents may have on the

    21 relevance of the requests that the Prosecutor has made,

    22 to some extent they suggest ways in which the

    23 Prosecutor's requests can be narrowed.

    24 If indeed the Prosecutor believes that it can

    25 show that there was a, quote/unquote, "international

  32. 1 armed conflict" in Bosnia in accordance with the legal

    2 definition of that under international law, then,

    3 indeed, orders from Croatian regular army officers to

    4 the HVO could perhaps provide some evidence of that.

    5 That would be for the Court to determine. They may

    6 also not prove that, but it is at least conceivable

    7 that such evidence could be found in such orders.

    8 That being the case, it would seem incumbent

    9 upon the Prosecution to ask for orders from relevant HV

    10 officers to relevant HVO officers during the period of

    11 time in question, as opposed to trying to sweep in

    12 every piece of paper that may have passed between

    13 various individuals over a three-year period. In fact,

    14 if the Prosecution has before it a specific legal issue

    15 it is trying to prove, it is not all that difficult to

    16 figure out the kinds of materials it will need to prove

    17 it. Moreover, defining order --

    18 JUDGE MAY: Remember the interpreters,

    19 please.

    20 MR. CASEY: I am sorry.

    21 Defining order also ought not to be that

    22 difficult.

    23 An order is a written directive from one

    24 individual to another, requiring that some action be

    25 taken. There is obviously always a problem or always a

  33. 1 perceived problem that if you don't say, you know, "all

    2 orders, directives, communications," you may miss

    3 something. But if, in fact, you're only looking for

    4 very specific things, which is, in fact, all they are

    5 entitled to, then it should be quite easy to craft a

    6 request along with specific definitions that will

    7 produce -- assuming they exist, and I can't represent

    8 that one way or the other obviously -- documents that

    9 may inform them of the situation as it existed in

    10 Bosnia.

    11 And one other point: Croatia does not

    12 maintain and I certainly did not mean to suggest that

    13 there is no archive in Croatia, either in the Ministry

    14 of Defence or elsewhere. Of course there are

    15 archives. I think the question before the Tribunal

    16 and, indeed, that has been before the Court now for two

    17 years or more is whether the Prosecutor is entitled to

    18 have free run in that archive just to see what might be

    19 there of interest to it. Of course, it is the position

    20 of Croatia that it is simply not entitled to that.

    21 Thank you.

    22 JUDGE ROBINSON: Mr. Casey, I think one has

    23 to be careful not to construe the Blaskic judgment as

    24 proscribing requests in respect of categories of

    25 documents. What it proscribes is a request in respect

  34. 1 of a broad category, and the mere fact that a

    2 particular request begins with the phrase "all

    3 documents," et cetera, does not by itself render that a

    4 broad category, because the request may go on to

    5 include what I might term sufficiently limiting factors

    6 by reference to names, places, and to other

    7 characteristics which would render the request

    8 sufficiently specific in terms of a category to meet

    9 the criterion set out in the Blaskic Chamber. So I

    10 merely want to say that you have to be careful not to

    11 misconstrue the Blaskic decision in that respect.

    12 MR. CASEY: Well, Your Honour, I agree. I

    13 believe it is possible to formulate a request that

    14 seeks specific documents beginning with the words "all

    15 documents" and even in a categorical nature. I think,

    16 in fact, that one example of that was found in the

    17 order that the Chamber issued in the Cerkez case that

    18 is now in appeal. In its papers on appeal, Croatia has

    19 made very clear that a number of those requests it

    20 believes do meet the standard. I don't have it before

    21 me, but as I recall, one of those requests asked for

    22 all orders, directives -- there was generalised

    23 language, appointing Mr. Cerkez a commander of a

    24 particular unit. Well, that request clearly meets the

    25 standards. The Prosecutor didn't know what the

  35. 1 document is called appointing an individual to command

    2 a particular unit, is it a commission, is it a

    3 directive, is it an order, and so they properly

    4 described it in a categorical nature, and that clearly

    5 meets the standards of the October 29 decision.

    6 However, in interpreting the phrase "broad

    7 category" as used by the Court in that decision, it has

    8 to be interpreted in context, both in terms of the

    9 other requirements that the Court there established for

    10 binding orders as well as in the context of that

    11 litigation itself.

    12 When the Court wrote that you couldn't ask

    13 for broad categories, what it had before it were a

    14 series of broad categories that sought unlimited

    15 numbers of documents that were not specifically

    16 defined. It said that, "No, you have to limit the

    17 number of documents you are looking for and you cannot

    18 ask for broad categories." Because the Court didn't

    19 simply say, "Categories are forbidden," does not

    20 suggest, I would submit that, that any category is

    21 permissible, just so long as the Prosecutor can say,

    22 "Well, we can't really tell you, we don't know what

    23 documents, so give them all to us and then we'll decide

    24 what we need." That is not what rule the Court laid

    25 down there.

  36. 1 This, the Prosecutor's current application,

    2 frankly, does not comport -- it requests, indeed, it

    3 requests broad categories. Indeed, in looking at it,

    4 the only one of these requests that perhaps comes close

    5 as a substantive matter, if not in form, I believe, is

    6 number 40, which searches or is asking for orders,

    7 resolutions, declarations, various things regarding the

    8 award of decorations or medals to Mr. Kordic.

    9 Now, presumably, they don't know what again

    10 the documents awarding such things are called, and so

    11 we can tell from that that what they want to know is

    12 were decorations awarded and how was that done, and it

    13 may well be possible to produce a limited number of

    14 documents with respect to that.

    15 I think you have a very hard time narrowing

    16 the other categories in that fashion.

    17 Thank you.

    18 (Trial Chamber confers)

    19 JUDGE MAY: In the light of the submission

    20 made on behalf of Croatia, that there are matters in

    21 the new request which repeat matters which have already

    22 been the subject of an order, we wish, at the least, to

    23 consider whether that submission has merit or not. In

    24 order to do so, we require a list of those requests in

    25 the new application which it is alleged are a

  37. 1 repetition of earlier requests. Mr. Casey should have

    2 provided that. He said that he's prepared to do so,

    3 and we shall order it. Seven days, if you please.

    4 MR. CASEY: Your Honour, if I could perhaps

    5 have a few more days. Substantive materials that we

    6 prepare have to be reviewed by the client in Zagreb,

    7 and that may take a few extra days.

    8 JUDGE MAY: How many days are you asking

    9 for?

    10 MR. CASEY: Perhaps a week from this coming

    11 Wednesday.

    12 JUDGE MAY: Ten days --

    13 MR. CASEY: Thank you, Your Honour.

    14 JUDGE MAY: -- from today's date, the

    15 Prosecutor to have seven days to respond thereafter.

    16 MR. NICE: Yes, we'll comply with that.

    17 Can I just touch on one point that I ought to

    18 have dealt with earlier?

    19 The request that is made is couched in the

    20 present tense, "items in the possession of the party."

    21 I've already made the point, in the most general of

    22 terms, that the Chamber may always be interested in

    23 knowing what items are not only possessed but what have

    24 been possessed. It would be open for it to cast any

    25 order it ultimately makes to include what has existed.

  38. 1 Indeed, there's this general problem that

    2 arises in these cases where materials are produced, for

    3 example, in the course of a defence, something that's

    4 been observed in the Blaskic case, and where the

    5 provenance of the documents isn't known. Sometimes I

    6 think it can be even helpful for a party such as

    7 Croatia, if any order is to be made, to be under a duty

    8 to provide material within categories if it comes into

    9 its possession subsequently, to provide an account of

    10 it.

    11 Sorry not to make this point earlier, but I

    12 was reminded of it in the course of the hearing and

    13 hadn't therefore thought of it before.

    14 One of the problems that can arise is if a

    15 party to a case, in the course of his defence, or a

    16 witness on behalf of defendant produces a document

    17 late, is asked, "Well, where did that come from," then

    18 it's very late to go on the chase of the potential

    19 parties, "Was it this date, was it that date, was it

    20 somebody's private election," and so on, and it would

    21 help a general enquiry if one potential source of such

    22 late discovered documents was on notice to provide any

    23 information of material coming to it after the time of

    24 a particular order.

    25 So what we've couched simply in the present

  39. 1 tense is something that might conveniently and

    2 helpfully be expanded to take care of what has been in

    3 possession of the party and also to deal with what may

    4 come into possession of the party.

    5 I see Mr. Casey wants to respond.

    6 MR. CASEY: Your Honour, if I might respond

    7 to that just for a moment, I think that that, in fact,

    8 is the standard of discovery: Anything in your

    9 possession or that may come into your possession. I

    10 believe it is inconsistent with the Appellate Court

    11 judgement not provided for in Article 29(2). I think it

    12 however does point out that the nature of the

    13 Prosecution's business here is to conduct discovery and

    14 not to obtain a binding order consistent with the

    15 Appellate Court's decision. Thank you.

    16 JUDGE MAY: We'll adjourn.

    17 --- Whereupon the hearing adjourned at

    18 12.40 p.m., sine die.