{short description of image}

  1. 1 Monday, 31st May 1999

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 2.58 p.m.

    5 THE REGISTRAR: Good afternoon, Your

    6 Honours. This is case number IT-95-14/2-T, the

    7 Prosecutor versus Dario Kordic and Mario Cerkez.

    8 JUDGE MAY: Mr. Smith, if I may address you.

    9 This is your application, as I understand it, to

    10 exclude evidence obtained from a search executed in

    11 September of last year in Vitez by the representatives

    12 of the Office of the Prosecutor. It may simplify

    13 matters if I briefly indicated what it appears to me

    14 are the issues in this matter.

    15 The Defence argue, on behalf of Mr. Kordic,

    16 that there was an illegal search by the Office of the

    17 Prosecutor of the premises of a Bosnian government

    18 agency and evidence was seized in violation of the

    19 rights of the Republic of Bosnia-Herzegovina, and you

    20 allege, Mr. Smith, the basic principles of criminal

    21 procedure.

    22 The cooperation and assistance of the Bosnian

    23 authorities was not sought as required by Bosnian law

    24 on cooperation with the Tribunal and, you said,

    25 customary international practice. A search warrant,

  2. 1 you say, was executed without regard to the authorised

    2 scope of the search in a different location and, you

    3 say, without providing a detailed inventory and the

    4 document have not been returned. Therefore, you argue

    5 that all the documents recovered should be excluded.

    6 There seems, in fact, on the evidence to be

    7 very little dispute about what happened. Please

    8 indicate in due course what you say is in dispute. We

    9 have the affidavits of Mr. Zigonjic, the head of the

    10 defence office at Vitez, with attached exhibits; the

    11 affidavits of Mr. Tadic, the Minister of Justice of the

    12 federation; and Mr. Antunovic, the head of the defence

    13 administration in Travnik.

    14 You also ask, and I don't know whether this

    15 is being dealt with by agreement, for an inventory of

    16 everything that's been recovered during the search.

    17 The Prosecution response of the 5th of

    18 February we have, arguing that your client doesn't have

    19 the locus to challenge this, his rights not having

    20 being affected, only those of the government. They

    21 argue that the Prosecutor was entitled to carry out the

    22 investigation, Article 18(2) of the Statute saying that

    23 the Prosecutor has the power to collect evidence and in

    24 so doing she may, as appropriate, seek the assistance

    25 of state authorities. Rule 39 of the Rules allow the

  3. 1 Prosecutor to collect evidence and undertake such other

    2 matters as appear necessary for completing the

    3 investigation and seek to that end the assistance of

    4 governments.

    5 They argue that the Prosecutor wasn't

    6 required to act only through the authorities of the

    7 federation and, accordingly, the evidence should not be

    8 excluded. The investigation, they say, was carried out

    9 in a lawful and proper manner.

    10 They say they're willing to provide a written

    11 list of the relevant documents in relation to the

    12 inventory, but they oppose a request for a full

    13 inventory.

    14 We have had their summary of evidence.

    15 Mr. Nice, if I may address you for one moment on this

    16 topic. The declarations, although it's true that they

    17 were summarised in an earlier document which you

    18 submitted, didn't reach, speaking for myself, my desk

    19 until this morning.

    20 MR. NICE: I'm very sorry about that.

    21 JUDGE MAY: They were ordered by the 17th of

    22 May, were dated the 28th of May.

    23 MR. NICE: Our understanding of the order was

    24 that the summary was wanted by the 17th. The summary

    25 was provided and the detailed documents were provided

  4. 1 later. They were certainly filed last week and I'm

    2 sorry they didn't reach your desk until today, but that

    3 was our understanding.

    4 JUDGE MAY: Very well. Mr. Smith, it's for

    5 you to begin. As I say, we've had these papers, and I

    6 would invite you to deal with the matter as

    7 expeditiously as you feel able. Having regard to this

    8 fact, I believe there's a witness here, and if there

    9 is, we would be anxious to get on with the evidence as

    10 soon as we can.

    11 MR. SMITH: Thank you, Your Honour. This

    12 request, this motion, raises three basic issues, quite

    13 fundamental issues, I believe, particularly the first.

    14 The first issue is whether the UN Security

    15 Council has granted to the Prosecutor direct

    16 enforcement authority for armed search and seizure in

    17 sovereign states, a matter, I would suggest, of some

    18 consequence.

    19 Secondly, whether, if it has, the Prosecutor

    20 has properly exercised that authority in this case.

    21 Third, the question of locus standi but in

    22 light of the Tadic appeals decision, in our judgement

    23 that establishes standing. I will not dwell on this

    24 further until the Trial Chamber wishes to go into the

    25 matter.

  5. 1 Let me state very briefly the relevant

    2 facts.

    3 JUDGE MAY: Unless they are particularly

    4 relevant to your submissions, we have had the chance of

    5 reading all this.

    6 MR. SMITH: We should proceed directly to the

    7 argument, Your Honour. First, the question of

    8 authority. Neither the Statute, in our judgement, nor

    9 the Rules of the Tribunal grant the Prosecutor

    10 authority to take direct enforcement action in the form

    11 of armed search and seizure operations within the

    12 boundaries of a sovereign state without their consent

    13 and/or participation, and we start with the proposition

    14 that the Tribunal and the Office of the Prosecutor, as

    15 an international organisation, is a body of limited and

    16 delegated authority.

    17 We point to an ICJ 1996 advisory opinion on

    18 the use of nuclear weapons that both we and the

    19 Prosecutor have cited, which establishes an earlier

    20 decision. And speaking of the European Community, a

    21 highly developed organisation "as the European

    22 commission" -- this is a quotation: "As the European

    23 commission is not a state but an international

    24 institution with a special purpose, it has only," and I

    25 underline that word because it is in our quote but in

  6. 1 the quotation in the Prosecutor's brief they picked up

    2 the quotation just after that word, "It only has the

    3 functions bestowed upon it by the definitive Statute

    4 with a view to the fulfilment of that purpose but it

    5 has the power to exercise those functions to their

    6 fullest extent insofar as the statue does not impose

    7 restrictions upon it."

    8 This establishes that the Tribunal is not a

    9 state and is not sovereign. It establishes that it is

    10 a body of limited and delegated authority but with

    11 fulsome right to exercise the authority delegated. In

    12 this case, by the Security Council through the

    13 Statute.

    14 Third, it is true, I believe, that in any

    15 case, as even a sovereign nation would be, both the

    16 Tribunal and the Prosecutor, however independent the

    17 Prosecutor may be, are bound to the limitations imposed

    18 by international law and that the Security Council in

    19 enacting a Statute enacts it, as does a legislature

    20 generally, against the background of applicable,

    21 binding law, in this case, international law.

    22 Insofar as the Tribunal is authorised and the

    23 Prosecutor's office is authorised to exercise their

    24 functions "to the fullest extent," that must mean to

    25 the fullest extent allowed by law, that is to say, the

  7. 1 international law.

    2 I will not dwell on the principles of

    3 international law applicable to the use of force in

    4 search and seizure operations upon the territory of a

    5 sovereign state because that matter is dealt with at

    6 some length in our briefs. But it is clear that under

    7 international law, any entity, other than the sovereign

    8 state itself, that wishes to exercise what our

    9 essentially executive powers of sovereignty within the

    10 territory of a sovereign state must have the consent

    11 and the assistance of the sovereign state, and there

    12 are bilateral and multilateral treaties, as well as

    13 model conventions, commonwealth schemes that lay out

    14 the mutual judicial assistance provisions which apply.

    15 It is important, turning first to the

    16 question of the language of the Statute, to note in

    17 general that the Tribunal has been granted judicial

    18 authority and not executive authority, and it is also

    19 important to note that given the general international

    20 law prohibiting the exercise of armed search and

    21 seizure operations in the territory of a sovereign

    22 country, any such power granted by the Statute, the

    23 language of which we will examine in a moment,

    24 necessarily would need to be express, quite express,

    25 because it would run counter to the general thrust of

  8. 1 international law and the rights of the member states

    2 of the UN that enacted the Statute or that authorised

    3 the Statute through the Security Council.

    4 I think it might be useful to look at what

    5 people have said about this question of the enforcement

    6 authority of the Tribunal. We have set out in our

    7 brief at page 11 statements in the first report of the

    8 ICTY, a statement by the Court in the Blaskic appellate

    9 judgement on subpoenas, statements by then President

    10 Cassese of the Tribunal, statements by President

    11 McDonald during her tenure as recently as November of

    12 1998 after the search and seizure in question, and in

    13 our brief requesting an inventory and notice, we have

    14 also quoted the Prosecutor herself in an interview only

    15 days before this search and seizure, all of which stand

    16 directly for the proposition that they read the Statute

    17 as providing no direct enforcement authority and no

    18 authority for armed search and seizure unilaterally

    19 exercised in sovereign states.

    20 JUDGE MAY: Mr. Smith, let me stop you.

    21 Whereabouts in the brief, first of all, are we going to

    22 find these comments referred to?

    23 MR. SMITH: They're on page 11 and 12, Your

    24 Honour. I had planned to read them but decided not to

    25 in light of Your Honour's injunction for brevity.

  9. 1 JUDGE MAY: Just so that we have a note of

    2 them.

    3 MR. SMITH: Yes. At pages 11 and 12,

    4 footnotes 22, and then a commentator to the same

    5 effect, Mr. Fredereik Harhoff writing in the

    6 international view of the Red Cross in footnote 21.

    7 JUDGE MAY: You referred also to the

    8 application for an inventory.

    9 MR. SMITH: Yes, Your Honour, and that will

    10 take me a moment because I have it in my bag. May I

    11 suggest that I proceed and ask one of my co-counsel to

    12 find that quotation in that brief, Your Honour, and we

    13 will supply you the page number in a moment.

    14 Let me turn then to Article 16, cited by the

    15 Prosecutor as a potential basis for authority. Article

    16 16 provides that OTP is "responsible for"

    17 investigations of war crimes, but that is not a grant,

    18 it seems to me, of power in the face of the sovereign

    19 rights of countries. It further provides that the OTP

    20 shall act "independently," but that cannot mean

    21 arbitrarily or lawlessly, and this Trial Chamber must

    22 be the forum in which to judge the lawfulness of the

    23 Prosecutor's conduct under Article 95 of its Rules.

    24 Let me turn then to Article 18, which Your

    25 Honour has mentioned in his summary. This provides

  10. 1 first in its first subsection that the OTP shall

    2 "initiate investigations" and "assess information."

    3 That does not, in our submission, constitute a direct

    4 grant of authority to engage in armed searches in a

    5 sovereign territory without consent.

    6 In Article 18, paragraph 2, we have the

    7 language authorising the Prosecutor to conduct "on-site

    8 investigations" and to "collect evidence." That, Your

    9 Honours, is as good as it gets in terms of language

    10 authorising this activity in the Statute.

    11 The Prosecutor, in briefs, argues that the

    12 activity undertaken constitutes, and they characterise

    13 it this way continuously through their brief, on-site

    14 investigation and collection of evidence. In their

    15 affidavits or in their declarations, however, they

    16 refer over and over again to the activity as one

    17 involving seizure. Thus, in the declaration by Pantz,

    18 the word "seizure" is used to characterise the activity

    19 undertaken at paragraphs 30, 32, 37, 47, 48, 49, 55,

    20 56, and 57. Likewise, in the declaration by Dornan,

    21 the word "seizure" is used, collected and seized, in

    22 paragraph 21 and the same thing in the affidavit by

    23 Gillissen at paragraph 15.

    24 In short, Your Honours, this was not just a

    25 consensual collection of evidence and on-site

  11. 1 investigation. This was, in fact, a coercive,

    2 inclusive search and seizure operation backed up by and

    3 expressly authorised to use armed force. What was done

    4 here was, therefore, the exercise of direct enforcement

    5 power.

    6 JUDGE MAY: Before you leave paragraph 2 of

    7 Article 18, perhaps you can help us with the second

    8 sentence. It may be we're going to deal with it

    9 anyway, in which case I apologise, but it states that

    10 in carrying out the tasks, that is, the power to

    11 collect evidence and to conduct on-site

    12 investigations, "In carrying out these tasks, the

    13 Prosecutor may, as appropriate, seek the assistance of

    14 the State authorities concerned." Now, your argument,

    15 Mr. Smith, is that that should read "must"; is that

    16 right?

    17 MR. SMITH: No, Your Honour. I would submit

    18 that it must be done, it is appropriate to be done and

    19 it must be done, not because of the language here but

    20 because of the binding international law obligations,

    21 where there is an armed search and seizure action

    22 taken, when it is that form of collecting evidence, it

    23 must be done. But there are many forms of collecting

    24 evidence where it need not be done, at least not in

    25 many countries.

  12. 1 Now, there is a decision of the French

    2 Constitutional Court, their highest court, which is not

    3 in our brief and I brought it to the attention of the

    4 Prosecutor, in which the search and seizure provisions,

    5 the investigation provisions really, of the lone treaty

    6 involving the international criminal court were at

    7 issue, and the question was whether the French

    8 constitution had to be amended before that treaty could

    9 be ratified. The French Constitutional Court found

    10 that even in the case of a non-coercive investigation,

    11 it would violate the French constitution if the

    12 prosecutor at that point, the prosecutor of the

    13 international criminal court, were to proceed without

    14 going through the requirements under French law.

    15 I am not making that argument here because in

    16 many countries I think it might well be lawful for the

    17 prosecutor to undertake the same form of non-coercive

    18 investigation that we, as the Defence, can undertake.

    19 It is when the Prosecutor takes upon herself the

    20 attributes of sovereignty to exercise, through armed

    21 force, a search and seizure, which the Defence as

    22 private parties could never do in a country, it is at

    23 that point that we argue, not because of the may/shall

    24 language here but because of the general obligation of

    25 this Tribunal and the Prosecutor to comply with

  13. 1 constraining international law which the Prosecutor

    2 generally ignores in their brief, as we have pointed

    3 out.

    4 JUDGE MAY: What was the point of putting

    5 that sentence into Article 18? If your argument is

    6 right, it's completely unnecessary.

    7 MR. SMITH: I think first it alerts the

    8 Prosecutor that in many cases, it may not just be

    9 appropriate but necessary, because there are a wide

    10 range of these types of investigatory activities. So

    11 in France, it alerts the prosecutor to do even

    12 consensual activities, in effect; they must notify the

    13 French authorities. In the case of this kind of

    14 aggressive, armed search and seizure, then it alerts

    15 them that they must investigate whether they are

    16 constrained, and they are constrained to follow

    17 international legal requirements, Your Honour.

    18 JUDGE ROBINSON: Mr. Smith?

    19 MR. SMITH: Yes, Judge Robinson.

    20 JUDGE ROBINSON: The second sentence in

    21 Article 18(2) doesn't deal with consent, it deals with

    22 assistance which is quite a different matter.

    23 MR. SMITH: Your Honour is quite correct in

    24 that, and it seems to me that it can be explained on

    25 those grounds as well.

  14. 1 If I might go on to Article 29, Your Honour,

    2 which is related, Article 29 provides a duty to

    3 cooperate which would not be there, in our judgement,

    4 unless it were necessary. Therefore, it confirms the

    5 analysis that we make of the Statute. There would be

    6 no need for requests of cooperation, nor a duty on

    7 states to respond if the Prosecutor had free reign in

    8 conducting activities like an armed search and seizure

    9 in sovereign territory.

    10 JUDGE MAY: Following your argument, the

    11 logic of it is that any state that wishes to prevent

    12 the Prosecutor carrying out her duties is entitled to

    13 do so and as against such a refusal the Tribunal is

    14 powerless.

    15 MR. SMITH: First, Your Honour, that is not

    16 the situation we face here, because there is Bosnian

    17 legislation and there is a memorandum of understanding,

    18 that I will come to in a moment, governing the

    19 assistance to be given to the Prosecutor and to the

    20 Tribunal, number one. Number two, providing a

    21 methodology similar to that employed in bilateral

    22 treaties throughout the world for judicial assistance

    23 on matters like search and seizure when armed force is

    24 required.

    25 In the first instance, I do not think we need

  15. 1 to reach that question on these facts.

    2 JUDGE MAY: So you're saying that they should

    3 have applied to the federation --

    4 MR. SMITH: Yes, Your Honour.

    5 JUDGE MAY: -- to carry out the search

    6 warrant?

    7 MR. SMITH: Yes, Your Honour. That is the

    8 basic methodology applied in bilateral treaties on

    9 judicial assistance.

    10 JUDGE MAY: What would happen if the entity

    11 refused?

    12 MR. SMITH: In that instance, Your Honour,

    13 the remedy for the Prosecutor and the Tribunal is to go

    14 to the Security Council.

    15 JUDGE MAY: What would happen to the

    16 documents, the other matters which were going to be

    17 seized meanwhile?

    18 MR. SMITH: They might or might not stay in

    19 their original state. That's quite obvious. I concede

    20 that as a matter of fact. Nonetheless, it seems to me

    21 that what is essentially at stake in the Prosecutor's

    22 argument is whether the end justifies the means. The

    23 means have simply not been provided on the face of the

    24 Statute, other than through the exercise of national

    25 sovereignty and consent.

  16. 1 For example, I think that if the Prosecutor

    2 attempted the same exercise in France, or the United

    3 States, or in Germany, the Prosecutor would be in some

    4 difficulty and the states involved would not think that

    5 they had granted the Tribunal or the Prosecutor the

    6 authority to engage in an armed search and seizure on

    7 their territory.

    8 With Your Honour's leave, I would move on to

    9 the Rules.

    10 JUDGE MAY: Yes, of course.

    11 MR. SMITH: The first thing to say about the

    12 Rules is they do not add to the statutory power.

    13 Rule 39 allows the Prosecutor, again, to collect

    14 evidence and conduct on-site investigations. It also

    15 allows, in (ii), the Prosecutor to "undertake such

    16 other matters as may appear necessary ..." That

    17 language, in our submission, has to mean such other

    18 matters as are authorised by Statute and as appear to

    19 be necessary because the Rules cannot expand on the

    20 statutory authority.

    21 In short then, Rule 39 does not and cannot

    22 provide the Prosecutor with more authority than the

    23 Statute does, and the Statute allows the Prosecutor to

    24 obtain a search warrant and to take it to the relevant

    25 national government to have it processed in the normal

  17. 1 way subject to national law, as I've indicated

    2 earlier.

    3 I would turn now, Your Honour, to Bosnia and

    4 Bosnian law. Bosnia does not allow armed search and

    5 seizure operations on its sovereign territory.

    6 First, it would not matter to this case if it

    7 did. It could not grant the Prosecutor's office

    8 authority it did not already have under the Statute.

    9 Secondly, even if that were not the case, it

    10 is useful to look at several documents that we have

    11 cited and the Prosecutor has cited in briefs to see

    12 whether they provide the basis for the authority to the

    13 Tribunal or the Prosecutor to engage in an armed search

    14 on Bosnian territory without regard for Bosnian law,

    15 indeed, without advanced notice, much less advanced

    16 consent.

    17 I would start, Your Honours, with the

    18 3 December, 1994 memorandum of understanding.

    19 JUDGE MAY: Where would we find that?

    20 MR. SMITH: It is cited in our brief. I have

    21 copies with me if the court does not have access to it

    22 and would be happy to pass them out if you like.

    23 JUDGE MAY: It may be more convenient if you

    24 give it to us now.

    25 MR. SMITH: The first thing to note, Your

  18. 1 Honours, about the memorandum of understanding is that

    2 it is pre-Dayton. The second thing to note about it is

    3 that it is a memorandum of understanding only and it is

    4 not a treaty.

    5 This memorandum of understanding was signed

    6 by the Minister of Foreign Affairs on behalf of the

    7 government only a mere matter of months after a mixed

    8 government had been provided for. There have been

    9 efforts by both the Bosnian Croats and the Bosnian

    10 Serbs to have it changed because they did not

    11 participate in its negotiation or signing. There is a

    12 new memorandum drafted and submitted but never acted on

    13 by the Bosnian government. As you know, many matters

    14 in the Bosnian government are effectively blocked if

    15 one or more of the parties objects to the action.

    16 Let me turn to the language of the memorandum

    17 of understanding itself and, in particular, first to

    18 the beginning, which states: "An agreement to cooperate

    19 fully and unconditionally with the Prosecutor of the

    20 Tribunal in the performance of his rights, duties and

    21 obligations."

    22 That language, Your Honours, provides for

    23 cooperation as required and guided under Bosnian law.

    24 Thus, any bureaucrat, under Bosnian law, who has

    25 discretion to exercise would be required to exercise

  19. 1 that discretion so as to cooperate fully and

    2 unconditionally within his legal constraints.

    3 Secondly, I would point Your Honours to

    4 paragraph 11, which deals with documents and other

    5 investigative source material. It provides that the

    6 Prosecutor may send investigators to examine documents,

    7 et cetera, gathered by the authorities of

    8 Bosnia-Herzegovina in relation to international

    9 potential violations of international war crimes.

    10 It provides, again, that the authorities will

    11 cooperate with such investigators and allow them access

    12 to such documents, indices, and other materials so that

    13 they can examine them, copy them, or otherwise

    14 reproduce them. It does not provide for their

    15 searching and seizing them.

    16 If original documents are required there is a

    17 provision under which investigators and the authorities

    18 make special arrangements for the original documents to

    19 be securely transmitted to The Hague. In this case,

    20 the original documents were seized and taken

    21 unilaterally to The Hague.

    22 So that, Your Honours, this paragraph, to the

    23 extent that it was intended to cover search and seizure

    24 at all, has been violated, and I suggest that it was

    25 intended to cover cooperative consensual gathering of

  20. 1 evidence, not the unilateral armed seizure of

    2 evidence. It does not authorise that.

    3 The law that governs --

    4 (Trial Chamber confers)

    5 JUDGE MAY: Mr. Smith, I'm sorry we

    6 interrupted. We were considering a matter. If you'd

    7 like to go on.

    8 MR. SMITH: Thank you, Your Honour.

    9 Paragraphs (v) and (vi) of the memorandum of

    10 understanding cited by the Prosecutor speak only of

    11 collecting evidence and on-site investigating, not

    12 armed search and seizure operations.

    13 The law that applies within Bosnia to

    14 requests from outside the country for search warrants

    15 to be executed is cited in our brief and it is the 1996

    16 law on cooperation with the ICTY, which is subsequent

    17 to the memorandum of understanding and which is a law

    18 and thus it overrides, to the extent of any

    19 inconsistency, a prior memorandum of understanding

    20 which is not a treaty.

    21 In Article 27, which we cite, any final order

    22 to collect evidence must be executed by the Ministry of

    23 Justice and Administration in cooperation with the

    24 Interior Affairs Ministry and the Foreign Affairs

    25 Ministry. Article 6 of that law designates the code of

  21. 1 criminal procedure of Bosnia to regulate the details of

    2 judicial assistance.

    3 The code of criminal procedure, in turn, also

    4 cited in our brief, contains Articles 518 covering

    5 requests for warrants to collect evidence which are to

    6 be submitted to the Ministry of Foreign Affairs, and

    7 Article 519(1), which requires the Ministry of Foreign

    8 Affairs to submit such requests to a competent court,

    9 usually a court of first instance, and this is the

    10 traditional, time-honoured international law

    11 methodology for judicial assistance.

    12 It is in stark contrast, I might add, to

    13 provisions in the laws of some of -- at least one of

    14 the countries involved in the former Yugoslavia which

    15 prohibits extradition, for example. That is not this

    16 situation. This is a situation that Bosnia has

    17 provided the mechanism required by its duties under the

    18 statue.

    19 There is a similar cooperation provision in

    20 the Bosnian constitution which is to the same effect,

    21 that officials are obligated to cooperate, obviously

    22 within the bounds of legal requirements and, therefore,

    23 it governs the exercise of their discretion.

    24 JUDGE ROBINSON: Mr. Smith, you refer to the

    25 traditional, time-honoured international methodology

  22. 1 for judicial assistance. Now, that time-honoured

    2 methodology deals with mutual assistance, mutual legal

    3 assistance, whatever you wish to call it, between

    4 states, inter-state.

    5 In this environment, we're not dealing with

    6 mutual legal assistance between states. The origin of

    7 this entire exercise is a resolution of the Security

    8 Council acting on the Chapter VII of United Nations's

    9 Charter, an exercise of its enforcement policy.

    10 So in my view, the analogy that you keep

    11 drawing with mutual legal assistance treaties, and

    12 which in my former career I worked for quite a long

    13 time, is really inapposite because that's a consensual

    14 basis. It must be a consensual basis as between states

    15 and you have a treaty. Here the basis of this exercise

    16 is not a treaty, it is a resolution of the United

    17 Nations, of the Security Council acting on the Chapter

    18 VII. I think there is a vast difference that you need

    19 to take up.

    20 MR. SMITH: I take Your Honour's point, and I

    21 would suggest that the procedures applicable under

    22 International Law as between sovereigns, when one

    23 sovereign attempts to exercise coercive power within

    24 the territory of another sovereign is a good guide to

    25 what the Security Council would have intended and did

  23. 1 intend in enacting the language that we've just

    2 examined of the Statute, because the language of the

    3 Statute applies to all Member States and a holding that

    4 there is power to exercise coercive armed search and

    5 seizure in any member state of the UN created by the

    6 statute, notwithstanding this normal pattern even among

    7 sovereign states.

    8 Of course, as I started out, the United

    9 Nations and this Tribunal is not a sovereign entity.

    10 It is an international entity, as the case law in the

    11 ICJ indicates, which in the case of the UN has only

    12 the powers authorised by its charter, and in the case

    13 of this Tribunal has only the powers authorised and

    14 delegated to it under its Statute.

    15 So it seems to me the normal pattern of

    16 international law goes very strongly, at a minimum, to

    17 the intent, the likely intent of the Security Council

    18 in granting these powers, and it seems also to me that

    19 it provides an international law backdrop to the

    20 customary international law. This Tribunal is

    21 obligated to follow the rules of customary

    22 international law, and the rule of legality is a matter

    23 going to procedure as well as substance. So I would

    24 link it back into a legal obligation on the Tribunal in

    25 that regard as well, Your Honour.

  24. 1 But your point is quite well taken about the

    2 consensual nature of those bilateral treaties. I

    3 believe, however, they reflect, in effect, customary

    4 international law.

    5 Let me then proceed with the several points

    6 that the Prosecutor makes, and I shall be brief on the

    7 authority argument now in finishing. The Prosecutor

    8 cites the primacy of the ICTY in its jurisdiction over

    9 adjudication as a bolster for its exercise of what are

    10 essentially executive, non-judicial search and seizure,

    11 armed search and seizure operations, and I suggest to

    12 you that simply to state that proposition explains why

    13 that law is inapposite. It applies to adjudication,

    14 and there is primacy there, and it does not apply to

    15 this sort of activity.

    16 They also cite the Blaskic Appeals Chamber,

    17 and I have already indicated the quotation from that

    18 Appeals Chamber that reflects directly the fact that

    19 search and seizure must be done through the use of the

    20 state activities involved, and, in any case, as our

    21 brief indicates, that case deals with witness

    22 interviews and witness protection, a different matter.

    23 The Prosecutor also cites their own Statute.

    24 We do, and they reply on that, that it is a

    25 treaty-based, consensual matter, not a matter of the

  25. 1 Article 7 enforcement authority, but I would argue that

    2 what it provides in the way of power for search and

    3 seizure reflects the current customary international

    4 law, and it requires the consent of the affected

    5 state. It also reflects what the Security Council

    6 would have intended and did intend for the same reasons

    7 I just outlined to Your Honour.

    8 Now, the Prosecutor makes several other

    9 implicit responses in their brief in the nature of, it

    10 seems to me, that when you think you're strong on the

    11 facts, try to argue the facts. The Prosecutor says

    12 there's a great need in this situation for these powers

    13 to be possessed by the Prosecutor, and I go back to the

    14 proposition I articulated earlier in response to a

    15 question: No matter how great the need, the end cannot

    16 justify the means if the means are not granted in the

    17 Statute, and we've examined the language.

    18 Secondly, they have asserted over and over

    19 that they have acted in a polite fashion, as it were,

    20 when they undertook this investigation and that the

    21 Bosnian Croats who were searched and whose material was

    22 seized had offered them coffee. Nonetheless, Your

    23 Honours, a polite attitude by a bank robber cannot

    24 justify a bank robbery. It cannot overcome the lack of

    25 authority, and there was a threat of armed force

  26. 1 present. There's simply no question about that. The

    2 Bosnian Croats, once they had made a decision that

    3 blood should not be spilled on this question, not

    4 withstanding sovereignty, proved that they are not

    5 nearly as obstructive as the declarations of the

    6 Prosecutor's witness indicated.

    7 There are several other things that the

    8 Prosecutor has argued, that there's been no objection

    9 by the Bosnian government officials. Well, they've got

    10 the cart before the horse. What is involved here is a

    11 violation of the rights of Bosnia in which consent was

    12 required. There has been no consent. The fact that

    13 there is not an objection lodged since then in any

    14 official manner is irrelevant to the question of

    15 whether the needed consent was obtained.

    16 As I'm sure Your Honours recognise and, I

    17 suspect, the Prosecutor recognised in engaging in the

    18 search without advance notice, that government tends to

    19 be deadlocked on issues that divide the communities.

    20 The Prosecutor stresses that what are seized

    21 are government documents, not personal documents, but

    22 that simply makes the insult to sovereignty, as we've

    23 said in our brief, that much more significant. These

    24 were not just government documents; these were national

    25 security documents. In addition, there were social

  27. 1 security documents and pension documents that bear on

    2 the rights of individuals.

    3 Finally, the Prosecutor has argued that the

    4 Bosnian Croats, in general, have not cooperated in

    5 making material available to the Tribunal and that that

    6 somehow justifies this operation.

    7 The first thing that I would say is that it

    8 is important to focus on the fact that this is a case

    9 involving two individuals, not the Bosnian Croats

    10 generally. Secondly, the examples of lack of

    11 cooperation cited by the Prosecutor involve only one

    12 before the date of the search. Three of the ones that

    13 have been cited involve a time period after the search

    14 and really are not logically relevant to the situation

    15 facing the Prosecutor at the time of the search.

    16 Finally, we were just aware of the nature and

    17 thrust of this argument last Friday when we got the

    18 declarations by the Prosecutor. The declarations

    19 concerning the lack of cooperation went beyond the

    20 summary of evidence, and when we examined them, we

    21 undertook an investigation as to the nature of prior

    22 cooperation because this is obviously a matter that's

    23 been going on between the Prosecutor, the Tribunal, and

    24 the Bosnian government. What we found when we

    25 investigated the matter was, and we just got this

  28. 1 information today and I called my learned colleague and

    2 informed him about it, and he's been very helpful in

    3 the further investigation of it apparently at some time

    4 earlier than the search was executed, and I believe

    5 probably in 1997, the Prosecutor at one point sent a

    6 representative to the then Minister of Defence in

    7 Bosnia, Mr. Ante Jelavic, requesting to see the

    8 archives of the HVO, which, of course, at that time

    9 after Dayton had become officially the archives of the

    10 Bosnian Federation.

    11 Mr. Jelavic issued an order authorising that

    12 and sent the Prosecutor's people with that order down

    13 to, I believe, Grude to examine those records. They

    14 found those records in Grude. They were apparently

    15 quite voluminous, and the Prosecutor's personnel

    16 apparently took the position that the Bosnians should

    17 provide the specific information requested, rather than

    18 making the material available to them on-site, and

    19 left.

    20 That set of events was apparently captured in

    21 a letter by Mr. Jelavic to Mr. Blewitt, which I did not

    22 have today but the Prosecution has been kind enough to

    23 provide to me, I have only one copy, but it is a letter

    24 which recites essentially these facts. The Prosecutor

    25 may know more facts about this. All I know at this

  29. 1 point is the information that we were able to determine

    2 over the weekend and what I find in this letter. But

    3 apparently, as the letter says, the Minister was

    4 informed "that for reasons unknown to me, Silvie Pantz

    5 did not want to, that is, refused to examine the

    6 available files and did not allow other authorised

    7 officials from your office to have access to them

    8 either."

    9 Now, I don't fully understand and know the

    10 facts of this situation, but it does seem to me that at

    11 a minimum, the assertion in Ms. Pantz's declaration, in

    12 paragraph 4, that many requests, including some from

    13 1997 and early 1998, have been completely ignored and

    14 stonewalled by the Bosnian Croats who have provided no

    15 assistance whatsoever, represents something of an

    16 overstatement.

    17 To conclude on the question of authority,

    18 Your Honours, what is at issue here is quite simple.

    19 First, the Prosecutor must not act unlawfully and, in

    20 our judgement, did. Second, the ends cannot justify the

    21 means if the authority to engage in the particular acts

    22 in question, armed search and seizure on the sovereign

    23 territory of a state, have not been provided by the

    24 Security Council in the Statute to the Prosecutor.

    25 Third, and I think this is quite important, Bosnia, if

  30. 1 it is to develop as a full-fledged, well-run,

    2 internationally recognised state, it is that already,

    3 but if it is to develop and fulfil its potential,

    4 cannot be treated as a UN protectorate of some sort.

    5 Its sovereignty must be respected. If the UN expects

    6 the people in the country to take the country

    7 seriously, the UN must do so as well. Finally, to

    8 hold otherwise than to strike the evidence from this

    9 illegal search, we submit, would send entirely the

    10 wrong message to the world about the Prosecutor, the

    11 nature of the Prosecutor's allowed operations, and the

    12 nature of the Bosnian entity and state itself.

    13 I would turn now, Your Honour, briefly to the

    14 questions of the execution of the search warrant.

    15 JUDGE BENNOUNA: (Interpretation) Before going

    16 on to that particular issue, Mr. Smith, there's a

    17 question I would like to put to you.

    18 At this point of your arguments, you have

    19 shown that you were taking as a basis the need of the

    20 obligation for our Tribunal to respect state of

    21 sovereignty, and you referred us to the Statute, you

    22 referred us to the Rules also, and you have also

    23 recognised, however, that the Tribunal was founded on

    24 the basis of Chapter VII of the United Nations Charter,

    25 a chapter which grants the Security Council the power

  31. 1 to take binding decisions, binding on all member

    2 nations of the United Nations, as you well know, and

    3 even non-member states have to comply with the Security

    4 Council's decisions.

    5 Then as far as sovereignty is concerned, I

    6 would simply like to ask you or, rather, tell you and

    7 see how you react to it, tell you that you have

    8 overlooked Article 2, paragraph 7, of the United Nations

    9 Charter, a very important paragraph as it guarantees

    10 the international authority of states. This is what we

    11 call an exception to jurisdiction. The United Nations

    12 is an international organisation. That's a fact.

    13 It's not a sovereign organisation, it's not a

    14 superstate, as the ICJ recognises itself and you have

    15 reminded us of that particular fact in your brief, it

    16 was in 1949, I think, but the United Nations has to try

    17 not to go into matters which are directly relevant to a

    18 state and to its national jurisdiction. The article

    19 quotes in English, and I'll give it to you in English

    20 because that's all I have, and I won't do that again,

    21 but for once, I will speak in English in order to quote

    22 the text right:

    23 "... in the present Charter shall authorise

    24 the United Nations to intervene in matters which are

    25 essentially within the domestic jurisdiction of any

  32. 1 state or shall also require the members to submit such

    2 matters to settle under the present Charter, but this

    3 principle shall not prejudice the application of

    4 enforcement measures under Chapter VII."

    5 That means that this particular paragraph on

    6 national jurisdiction is recognised by the Charter,

    7 with the exception that is said very clearly in Article

    8 2, paragraph 7, an article which governs the very

    9 principles on which the United Nations rests, with the

    10 exception of the article of Chapter VII. So the argument

    11 of national sovereignty does not resist what is said in

    12 Article 2(7). In 1997, we are yet again arguing about

    13 Chapter VII as the SFOR who has taken action pursuant

    14 to Article 2(7) through a decision of the Security Council

    15 which was taken after the Dayton Agreement. Let me

    16 remind you that the Dayton Agreement had to be made

    17 legitimate by a decision of the Security Council.

    18 May I also remind you of what Article 103 of

    19 the Charter says? It's a very interesting article

    20 because you have reminded us of an agreement which was

    21 concluded between the United Nations and a member state

    22 or an agreement that is ratified by two different

    23 states. Article 103 of the Charter deals with the

    24 supreme character of the Charter. It says: "... of

    25 the members of the United Nations under the present

  33. 1 Charter and their obligations under the international

    2 agreement, their obligations under the present Charter

    3 shall prevail."

    4 That's a crucial article, needless to say,

    5 because what does it mean? It means that whatever the

    6 agreements reached between states, there is the

    7 supremacy of the Charter over any international

    8 agreement concluded after the Charter has been

    9 adopted.

    10 That there is an obligation to cooperate with

    11 the state of Bosnia, that is quite evident for very

    12 practical reasons. We must cooperate with the Bosnian

    13 authorities. If we did not cooperate, how could we

    14 manage, practically speaking? We have to have the

    15 Bosnian authorities as our interlocutors.

    16 That this be an exclusive legal obligation,

    17 an exclusive obligation to cooperate, that's something

    18 I'm not so sure about because we find ourselves in a

    19 very specific situation, a situation covered by Chapter

    20 VII. Chapter VII grants, in that particular case, the

    21 authority to the Security Council to decide, to reach a

    22 decision. So you cannot refer to the authority of the

    23 state, to the sovereignty of a state. The sovereignty

    24 becomes something that is peripheral to Chapter VII.

    25 In that particular case, there is priority given to

  34. 1 Chapter VII that is stressed in Article 2(7), and the SFOR

    2 took action within that particular Article 2(7) and Chapter

    3 VII.

    4 That is the elements I wanted to introduce in

    5 this debate, because I don't think you've raised these

    6 different issues in your brief, Mr. Smith, and I did

    7 want to bring all this up to see what you had to say on

    8 the matter. I don't know if you have something to say

    9 on this, but, of course, I would like to hear from you

    10 if you have a particular opinion on the matter.

    11 MR. SMITH: I do, Your Honour, and I

    12 apologise if I have failed to make myself clear. I am

    13 not arguing that the Security Council could not have

    14 authorised enforcement methods that overrode national

    15 sovereignty under these provisions that Your Honour

    16 cites. I am arguing that they have not done so and

    17 that if they were to do so in the face of customary

    18 international law for dealing with these matters, it

    19 would have and should have been express and clear as a

    20 grant of authority because of the startling reach of

    21 the power that it would give the Prosecutor to conduct

    22 armed searches in Russia, for example, quite

    23 remarkable.

    24 I might mention several other things. The

    25 second sentence of Article 18, paragraph 2 that Judge

  35. 1 Robinson mentioned seems to me to be required as

    2 appropriate, seek the assistance of state authorities

    3 language, because without authorisation, member states

    4 would have no requirement to respond to the Prosecutor,

    5 in particular. They need to know that the Prosecutor

    6 is authorised to request their assistance under Article

    7 29.

    8 I would also mention that the Statute has

    9 been almost uniformly interpreted by the member states

    10 of the UN as involving the kind of judicial

    11 assistance for armed search and seizure that we are

    12 discussing here. There are 22 member states who have

    13 enacted special laws on cooperation with the ICTY and

    14 all regulate mutual assistance effectively in

    15 accordance with the international law bilateral,

    16 consensual model that Your Honour has mentioned.

    17 So I think that the views of the member

    18 states as well as the views that I cited earlier of the

    19 Tribunal itself, the Presidents of the Tribunal, all

    20 seem to be of one accord on this matter. But I hope I

    21 have cleared your question up. I am not arguing that

    22 the Security Council could not, if it had chosen,

    23 override under Article 7 the sovereignty of countries.

    24 They obviously can and do, and the current situation is

    25 an example. But on this point, I am arguing that given

  36. 1 the breadth of the power being asserted here by the

    2 Prosecutor, they have not, and it would be a

    3 misinterpretation of their intent based on the slim

    4 language of on-site investigations and collecting

    5 evidence to conclude that they intended to allow armed

    6 intrusions in national territory for searches and

    7 seizures.

    8 I'm prepared at this point to turn to

    9 executions of --

    10 JUDGE BENNOUNA: (Interpretation) Excuse me,

    11 Mr. Smith, but maybe we can spend another minute on

    12 that particular issue.

    13 Article 18(2) of the Statute, you said that

    14 Judge Robinson quoted it, yes, indeed, he quoted it but

    15 only to inform you of the fact that the Prosecutor can

    16 ask, if necessary, the authorities of the relevant

    17 state to lend a helping hand. So, yes, the Prosecutor

    18 is authorised to collect evidence, and, yes, it is

    19 authorised to go into the country to execute those

    20 powers, but only for very practical reasons because the

    21 Prosecutor has no police force at its disposal. So the

    22 Prosecutor may, indeed, as appropriate seek the

    23 assistance of the state authorities concerned.

    24 Do you think that the Prosecutor cannot, for

    25 example, ask for the assistance of the SFOR, because

  37. 1 this is what you're talking about basically. You are

    2 pushing us to reach the following conclusion. The

    3 Prosecutor, who is responsible pursuant to Article 18

    4 to investigate and prepare the indictment has no police

    5 force of its own. It has to ask for the state's

    6 assistance. You are telling us that it cannot either

    7 seek the assistance of an international intervention

    8 force. Is that your argument, Mr. Smith?

    9 MR. SMITH: No, Your Honour. Again, I fail

    10 to be clear enough, and I apologise. I am arguing that

    11 they could ask the assistance of SFOR to take actions

    12 which are within SFOR's jurisdiction, and we cited in

    13 our brief the SFOR power to support activities and to

    14 provide for security.

    15 SFOR does not, however, itself have the power

    16 to engage in an armed search and seizure. It may well

    17 have the power to arrest. It does not, it seems to me,

    18 have the power of search and seizure, and neither does

    19 the Prosecutor. In this case, neither of the two

    20 entities involved had the power to override sovereignty

    21 of the country of Bosnia.

    22 There is a distinction, I think, on the

    23 question of arrest in 59 bis. There is no equivalent

    24 to Rule 59 bis for purposes of search and seizure, even

    25 assuming that 59 bis doesn't expand improperly on the

  38. 1 statutory authorities in the area of arrest. But

    2 that's not the issue in this case, nor is the refusal

    3 of the one state, the Federal Republic of Yugoslavia,

    4 to respect the arrest authority and extradition

    5 authority of the Tribunal.

    6 JUDGE ROBINSON: Mr. Smith, I wanted to go

    7 back to the question of mutual assistance treaties and

    8 the regime that governs those treaties. In those

    9 treaties, the standard formulation is that assistance,

    10 and certainly in the case of search and seizure, is to

    11 be carried out in accordance with the laws of the

    12 domestic state, of the state in which the search and

    13 seizure is carried out.

    14 Now, a state that enacts legislation to

    15 implement such a treaty would, of course, be entirely

    16 correct in enacting legislation that requires its

    17 consent or, at any rate, requires that the search and

    18 seizure be carried out in accordance with its laws.

    19 I've been trying to tell you that the

    20 situation here is different and for the reasons that

    21 Judge Bennouna and I have been trying to explain, the

    22 Chapter VII nature.

    23 If, for example, you look at Article 29 on

    24 cooperation and judicial assistance, Article 29 is

    25 itself a derogation from customary International Law.

  39. 1 Under customary International Law, states cannot be

    2 obliged to cooperate in a judicial manner, particularly

    3 in relation to matters that affect them, affect their

    4 sovereignty, but Article 29, as the Blaskic judgement

    5 itself acknowledges, is a derogation from International

    6 Law.

    7 A state that enacts legislation, implement

    8 Article 29, cannot properly enact legislation that

    9 would require its consent for the implementation of

    10 Article 29, as one or two states have done, and as the

    11 Blaskic judgement itself, and I don't wish to name the

    12 states that have done that, but the Blaskic judgement

    13 itself says that that is quite improper.

    14 I mean, that legislation has no effect at all

    15 on the Tribunal in relation to Article 29. The fact

    16 that a state has enacted legislation that requires its

    17 consent for the implementation of Article 29 is totally

    18 irrelevant, because Article 29 delegates from customary

    19 International Law and the Blaskic judgement itself says

    20 so.

    21 So that I think what Judge Bennouna and I

    22 have been trying to explain to you is that the basis

    23 for action in this regard is entirely different from

    24 the basis for action in relation to the traditional

    25 judicial assistance treaty which proceeds on the basis

  40. 1 of consensuality. Here it is the Chapter VII of the

    2 UN Charter, which imposes a certain regime and which

    3 overrides any treaty regime including even the treaty

    4 that you referred us to, by virtue of Article 103.

    5 I might say that when I pointed to the second

    6 sentence in Article 18(2), I think perhaps you

    7 interpreted it in the way that suited your ends. I was

    8 really trying to illustrate that what the Prosecutor is

    9 enabled to seek here is the assistance of the state and

    10 not the consent. He may seek the assistance. It does

    11 not say that he may seek the consent of the state. I

    12 mean, far less does it say that she must seek the

    13 consent of the state. It is assistance. It is

    14 cooperation, which is quite different from consent.

    15 MR. SMITH: Your Honour, what I'm arguing is

    16 that neither Article 18, nor Article 29 exercised in

    17 the Article 7 powers to require that states waive ipso

    18 facto their sovereign rights to object to armed search

    19 and seizure operations by the Office of the Prosecutor

    20 on their territory.

    21 If they had, if it were clear, if Article 18

    22 had clearly granted that authority and Article 29

    23 clearly reflected that the cooperation intended was

    24 that they waived their sovereignty, that would be a

    25 quite different case, but 22 countries have construed

  41. 1 the cooperation obligations to allow them to grant

    2 consent, to withhold consent if they choose to, to

    3 require their consent before search and seizure

    4 operations are undertaken on their territories. That

    5 seems, to me, to be powerful evidence in the face of

    6 very little express language that goes to armed search

    7 and seizure in Article 18, that the framework is one in

    8 which that power was not exercised as to this sort of

    9 activity by the Security Council and that is, in

    10 effect, the argument that I've been trying to make, and

    11 I apologise if -- you are far more schooled than I in

    12 these issues involving bilateral treaties, but that is

    13 essentially the argument that I've been trying to

    14 make.

    15 It may be useful to quote the Blaskic case on

    16 this point, which we do at page 11. It says, "It is

    17 indubitable that states, being the addressees of the

    18 Article 29 Statute to cooperate, have some choice or

    19 leeway in identifying the persons responsible for and

    20 the method of its fulfilment. It is for each such

    21 state to determine the internal organs competent to

    22 carry out the order."

    23 It follows that if a Judge or a Chamber

    24 intends to order the production of documents, the

    25 seizure of evidence, the arrest of suspects, et cetera,

  42. 1 being acts involving action by a state, its organs or

    2 officials, they must turn to the relevant state and the

    3 relevant state, in our judgement, would react under its

    4 special law on cooperation with the ICTY which

    5 provides, in the case of Bosnia, as in most states, for

    6 a mechanism similar, by analogy, to the normal judicial

    7 assistance mechanism in bilateral treaties which I

    8 understand are consensual.

    9 One of the points about a consensual

    10 bilateral treaty is that it can be consensual. A

    11 sovereign has no -- no one has the right, absent the

    12 consent of the sovereign, and, therefore, you have to

    13 have a treaty for the execution of a search warrant in

    14 another country.

    15 JUDGE MAY: Mr. Smith, I recognise you

    16 haven't had the last hour and a half to yourself but,

    17 nonetheless, perhaps we can move on and try and

    18 complete your argument before the break.

    19 MR. SMITH: Let me do so quickly, Your

    20 Honour.

    21 The second basic argument in the case is the

    22 method of execution, and here we're dealing with the

    23 factual declarations by the Prosecutor and our

    24 affidavits. I would note, in dealing with that factual

    25 material first, that the three affidavits we have

  43. 1 submitted are first-party material, that is to say, the

    2 person involved was present at the time in giving the

    3 material that he's describing.

    4 The Prosecution's declarations, two of them

    5 are not first party. Ms. Pantz was not at the

    6 locations of the inspection. She may have been in

    7 Sarajevo, but she was not at the locations of the

    8 inspection and she is reporting opinions, and legal

    9 conclusions, various other things that have been told

    10 to her. Dornan apparently, as near as we can

    11 determine, is the same thing.

    12 It is interesting that the person who was

    13 present at the inspection of the Zigonjic premises has

    14 not provided an affidavit. I would have normally

    15 thought there would be a first-party affidavit by that

    16 person that was present, but we note that it was not

    17 so.

    18 Issues we raise here, we have not raised the

    19 issue of probable cause, Your Honour, because as we

    20 indicated in our briefs at page 7 note 10, we cannot,

    21 not having been party to the issuance of the warrant,

    22 and indeed once we became aware that a search had taken

    23 place, we inquired of the defence council office

    24 whether we could obtain a copy of the search warrant

    25 and the materials leading up to it, and we were

  44. 1 informed, after they had made inquiries, that those

    2 materials were not available to us. So we have not

    3 argued that because we could not.

    4 Secondly, a search warrant generally must

    5 have a concrete nexus among the places searched, the

    6 objects searched, and the alleged offences. This is a

    7 remarkably broad order with a number of people listed

    8 in the back of it, some of whom are currently in

    9 office, at least one of whom, I believe, is in office,

    10 and no real indication of the link between the people

    11 for whom information is sought and the particular

    12 crimes because there aren't any crimes actually stated

    13 on the face of the warrant.

    14 The Antunovic declaration shows that the

    15 Prosecutor is represented. He has seized virtually

    16 everything. In effect, a random search, and they

    17 simply took large volumes of material, some 44 boxes --

    18 I think 45 boxes, perhaps, of material including hard

    19 disks and computer floppies that can contain a very

    20 large body of material in a very small space.

    21 As to the things seized, we note that weapons

    22 were seized and confiscated. They were not covered in

    23 the search warrant. We could understand their

    24 sequestration during the search, but it is not at all

    25 clear to us the legality of their confiscation and

  45. 1 their retention the search was over. This was, of

    2 course, a defence office, and it was quite natural that

    3 one might find weapons at such a location.

    4 The inventory that was left was, in our

    5 judgement, too general. It was not in a language that

    6 could be understood by the person who had to sign it.

    7 There is some slight deviation in the accounts between

    8 our affidavits and the Prosecutor's declaration, but I

    9 remind Your Honours that ours is first party and except

    10 for the Antunovic search theirs is not on that point.

    11 We suggest without a detailed inventory, and

    12 none has been produce almost eight months later, this

    13 is a significant issue about the chain of custody and

    14 the validity of materials, and the owner can't tell

    15 what it was that has been taken in a case involving

    16 social security and welfare benefits for individuals.

    17 Finally, the materials, eight months on, have

    18 never been returned, nor has a copy been made even to

    19 return to those offices so they can proceed in their

    20 normal course of business. I suggest that this

    21 violates principles of International Law requiring the

    22 return of such materials when they are seized found in,

    23 for example, Article 6 of the European Convention on

    24 Human Rights, and there are similar provisions in the

    25 UN model convention on mutual assistance and the

  46. 1 Commonwealth mutual assistance scheme.

    2 We believe that this was, in these regards,

    3 an improperly executed search and an illegally executed

    4 search, and that these materials should be, under

    5 Rule 95, excluded either on the grounds that they

    6 cast -- that the method of their acquisition,

    7 particularly given the broad inventory, the very

    8 general inventory, casts substantial doubt on the

    9 reliability of the evidence or, alternatively, that the

    10 method of the execution of the warrant and, in our

    11 judgement, the lack of the power to exercise an armed

    12 search and seizure operation without going through the

    13 requirements of Bosnian law is antithetical too or

    14 seriously damages the integrity of the proceedings were

    15 the Tribunal to allow this sort of evidence to be used

    16 by the Prosecutor.

    17 If the Tribunal is to control the exercise of

    18 investagatory powers by the Prosecutor so that they are

    19 lawful, we submit that the exclusion of evidence,

    20 generally the rule in most jurisdictions, is the

    21 effective tool for doing so.

    22 With, that Your Honour, I will conclude.

    23 Thank you.

    24 JUDGE MAY: We'll take the usual break,

    25 quarter of an hour.

  47. 1 --- Recess taken at 4.30 p.m.

    2 --- On resuming at 4.50 p.m.

    3 JUDGE MAY: Yes.

    4 MR. NICE: I don't believe Mr. Kovacic wants

    5 to add anything. I'm not sure. Apparently not.

    6 I can deal with the points raised shortly.

    7 The potential for these powers contended for by the

    8 Prosecution to have been granted is conceded. We say

    9 they have been granted explicitly. The lack of

    10 complaint by the state in relation to this warrant, as,

    11 indeed, in relation to earlier warrants executed on its

    12 territory is not insignificant. It shows a recognition

    13 by the state of the legality of what's done, they

    14 neither seeking to arrest removal of materials by any

    15 domestic intervention, nor complaining, as they are

    16 entitled to, to this Tribunal under, I think, Rule

    17 103.

    18 Dealing with a few of the points Mr. Smith

    19 raised and in the sequence in which he dealt with them,

    20 for the most part, non-cooperation has been dealt with

    21 just not in Ms. Pantz's affidavit but also extensively

    22 in the Prosecutor's brief at pages 9 and 10, where in

    23 the footnotes, there is reference to the annual reports

    24 to the Security Council which sets out extensively the

    25 history of non-cooperation.

  48. 1 Mr. Smith relies today heavily, and I think

    2 more heavily than in the original motion, on the notion

    3 that this was an armed search. That is not the case,

    4 as is known, I'm sure, to the Court from its reading of

    5 the papers in this application. This was a search

    6 authorised by the warrant of the Court that SFOR

    7 attend, as they are obliged to do, to ensure the

    8 security of people whose presence on the territory they

    9 are aware of. It was their judgement and theirs alone

    10 what level of security was required. They took no part

    11 in the search.

    12 The example of the same powers being capable

    13 of exercise in France or the United States of America

    14 is worth perhaps the following four points: At the

    15 beginning, of course, when these powers were granted,

    16 the territory was in a state of war, and what's being

    17 contended for now might have been wholly inappropriate

    18 and would be completely different from what would apply

    19 in relation to a friendly and peaceful state.

    20 In any event, it may be, and it doesn't fall

    21 for determination today, but it may be that there is

    22 some limitation in the powers to affect search warrants

    23 in the phrase or words "on-site" in Article 18(2). But

    24 to deal, and it may be conclusively, with the problem,

    25 if there is any problem, in the example raised of

  49. 1 France or the United States of America, the Prosecutor

    2 has in respect of search warrants always sought, as she

    3 can, an order of the Tribunal, and it may be that any

    4 application to exercise powers of search in respect of

    5 a country with which cooperation could be fully

    6 expected would be refused.

    7 Can I deal with the memorandum that was

    8 distributed? It, of course, in many ways is not in

    9 point at all. It is a memorandum about something

    10 entirely different and sets out quite a specific

    11 regime. But on page 10, paragraph 7, the Chamber may

    12 find something of interest where it says as follows,

    13 page 10, paragraph 7: "Investigators may take

    14 possession of documents and other pieces of physical

    15 evidence provided to them by witnesses during

    16 interviews, this is within the setting of the regime of

    17 interviews dealt with by this memorandum, but shall not

    18 exercise without a warrant or other order of a judge of

    19 the International Tribunal seek to exercise any powers

    20 of search or seizure," which all seem to acknowledge

    21 there and then the ability for such warrants to

    22 exercise such powers being granted.

    23 I turn from the memorandum just to make a

    24 couple of points about the Bosnian law referred to at

    25 page 17 of the defendant's motion, and it's their

  50. 1 paragraph 32. As one of their witnesses first reveals

    2 and which has been possible for me to discover but only

    3 very recently, the citation is not as precise as the

    4 Chamber might have hoped for. In paragraph 32, there

    5 is reference to the Bosnian law on cooperation with the

    6 ICTY, and footnote 33 identifies the Statute of 1996.

    7 That Statute is apparently and exclusively a statute on

    8 the laws of extradition. It is not a statute headed

    9 and titled, as I am informed but I'm afraid only now

    10 informed today, on cooperation.

    11 When it goes on to say that Article 27

    12 requires any final order to collect evidence should be

    13 executed by the Ministry of Justice and administration

    14 and so on, the position is that Article 27 refers to

    15 the regime appropriate to the return of somebody being

    16 extradited and Article 28 makes a reference to the

    17 production or collection of property and says that the

    18 regime for that material must be the same as Article

    19 27.

    20 Finally, when it is said that Article 6 of

    21 the law of cooperation explicitly designates the code

    22 of procedure as the law that regulates the judicial

    23 assistance procedures, my understanding is that the

    24 code of criminal procedure is invoked as a residuary

    25 code to be applied where things are not otherwise

  51. 1 specified but this all in a statute that deals with

    2 extradition. So that whatever value it is that may be

    3 diminished by its precise terms, in any event, as I

    4 think has been made plain, unilateral laws are not to

    5 the point if, as we contend, quite explicit powers of

    6 the type required have been given to this Office of the

    7 Prosecutor by the Statute.

    8 I think that we've set out at our page 7 a

    9 relevant quotation from the Blaskic decision which sets

    10 out how on-site activity may require to be done

    11 unilaterally and without notice, and that fits entirely

    12 with the reasoning that lies behind the powers that we

    13 say are granted.

    14 So far as Article 18 and Article 29 are

    15 concerned, we say that this matter is governed by

    16 Article 18. I needn't repeat the section and further

    17 identify the distinction between the first and second

    18 sentence. Article 29 deals with cooperation. This was

    19 not a question of seeking and obtaining acts by

    20 cooperation. It's true that notice was given

    21 simultaneously with execution of the warrants, and so

    22 it could be said that at that stage and from that

    23 moment, cooperation was required and was granted, but

    24 we rely on the quite clear and precise terms of Article

    25 18.

  52. 1 I turn briefly to deal with the matters of

    2 fact. I've explained to Mr. Smith, and I'm sure he

    3 accepts, the only reason why the affidavits produced do

    4 not include an affidavit from the investigator who

    5 dealt with the particular site and who read the correct

    6 but left the wrong warrant is because he's the

    7 investigator who sadly died earlier this year, having

    8 contacted, I think, a tropical disease in the course of

    9 the winter. That's the only reason that you don't have

    10 the first-hand affidavit.

    11 This warrant and its breadth reflect the fact

    12 that it was not, of course, solely restricted to an

    13 investigation into these two defendants. This was

    14 wider than that. So far as weapons seized were

    15 concerned, that was entirely a matter for SFOR. It had

    16 nothing to do with the search warrant, and as I

    17 understand it, SFOR, in different locations, may have

    18 made different judgements in relation to weapons that

    19 they discovered were found. But it was a matter for

    20 them and had nothing to do with the search warrant.

    21 The material sought was wide and, of course,

    22 its breadth was approved by the Court when the warrant

    23 was granted, and there's no challenge to the

    24 appropriateness of the Court making the decision it did

    25 on the material available to it.

  53. 1 The inventory preparation was necessarily an

    2 extensive exercise. Statistics revealing how extensive

    3 are, I think, contained on the last page of Ms. Pantz's

    4 affidavit. The Defence were provided on the 1st of

    5 April with an extract from the full inventory still

    6 then in the process of preparation, and the extract of

    7 some 88 pages related to documents identified as

    8 particularly appropriate or potentially appropriate to

    9 the defendants. The process of completing the

    10 inventories continued, and the full inventories were

    11 sent out not to the defendants but to the custodians on

    12 the 14th of May of this year. Some have, as I

    13 understand it, and some have not yet reached the final

    14 custodians, it being an administrative matter to make

    15 sure they find the right office or person.

    16 In summary, we say, as we said in the motion

    17 and have nothing much further to add, nothing further

    18 to add, the powers were explicitly envisaged and

    19 given. This warrant was correctly granted. Its

    20 execution, as revealed by the material, the evidential

    21 material before you, was entirely proper, and there is

    22 no grounds here whatsoever for excluding admission of

    23 any of this evidence on the grounds that it was

    24 obtained pursuant to the search warrant.

    25 I can simply add that material from the

  54. 1 search warrants has already been admitted in other

    2 cases. Before entering premises, it would not be

    3 possible to know the quantity of potentially useful

    4 material that might be revealed, but it was possible to

    5 forecast and SFOR so forecast, as it were, that there

    6 would only be the potential for one day's work. So

    7 everything had to be accommodated within one day. Any

    8 overnight pause was unacceptable -- sorry, overnight

    9 continuation was not possible, so far as SFOR was

    10 concerned, and a pause overnight would render the

    11 following day's exercise potentially valueless. It all

    12 had to be dealt with in one day. That explains the

    13 hierarchy of inventories that had to be prepared. It

    14 simply wouldn't be possible to prepare a detailed

    15 inventory of the amount of material that was, in the

    16 event, found to be of potential value, given the

    17 resources and the time available.

    18 Of course, surprise was necessary, though I

    19 don't think it's dealt with specifically in the

    20 evidence. One can give examples within these very

    21 searches, not necessarily this particular one that

    22 concerns Mr. Smith, but searches on the same day are

    23 the sort of events that can happen at computers if

    24 there is any advance notice given that a search is

    25 going to take place.

  55. 1 I return briefly to the legal argument that

    2 has been advanced in relation to the granting of an

    3 exercise of warrants generally. If the Defence

    4 argument is right, then even assuming ground forces

    5 enter Kosovo while it remains part of Serbia, it would

    6 not be lawful for any force of the Office of the

    7 Prosecutor following the armed forces to search

    8 premises for documents, because they would still have

    9 to operate through the state. With great respect, that

    10 simply isn't right.

    11 These powers were granted to deal with a

    12 particular known situation. They have been properly

    13 exercised, and, in our respectful submission, the

    14 evidence should be admitted.

    15 JUDGE MAY: Thank you. Mr. Smith?

    16 MR. SMITH: I will be quite brief, Your

    17 Honour.

    18 First, the citation of the statement by

    19 Louise Arbour which is comparing her powers to those

    20 that the Nuremberg Tribunal had: "They ruled over the

    21 territory. I can only imagine how quickly we would

    22 finish in the former Yugoslavia if we could enter any

    23 ministry and take documents that we need." That is on

    24 page 4, footnote 2 of our motion for advance notice.

    25 That's the first matter.

  56. 1 Secondly --

    2 JUDGE MAY: Sorry. Let me find that. Where

    3 is this?

    4 MR. SMITH: Page 4, footnote 2 of the second

    5 set of briefs relating to this matter, that is,

    6 relating to the motion for advance notice of the

    7 Prosecutor's intent to offer evidence, dated 8 March,

    8 1999.

    9 JUDGE MAY: Well, that's presumably a purely

    10 factual comment, comparing the position at Nuremberg

    11 with the position here. It's not any comment about the

    12 powers or legality.

    13 MR. SMITH: I had read it and taken it as

    14 having an implicit predicate which was that she could

    15 not enter any Ministry and take any documents, and if

    16 she could she would. I may be incorrect on that

    17 matter, Your Honours. That's for you to decide.

    18 JUDGE MAY: It's a pure matter of fact, it's

    19 not a matter of law.

    20 MR. SMITH: Your Honours, on the question of

    21 lack of complaint, I've addressed that already. That's

    22 not at issue. It's lack of consent that is at

    23 question. But on that point and the question of

    24 whether this was an armed search, I think that the

    25 affidavits we have submitted leave no doubt. SFOR was

  57. 1 present for security purposes, but the search warrant,

    2 in paragraph 8, expressly authorised the use of force

    3 and that was handed to the persons at the search site.

    4 In the paragraphs of the affidavits, Mr. Zigonjic,

    5 Mr. Antunovic both indicate that the presence of the

    6 armed troops made them afraid to resist. It was

    7 clearly under threat of force and that when they

    8 checked up the line of authority, they were told that

    9 they had no choice but not to oppose the search.

    10 I can, if you like, take the time to point

    11 out the particular paragraphs, otherwise, I will simply

    12 leave Your Honours to see the testimony by the persons

    13 against whom the threat of force in the search and

    14 seizure was applied. Indeed, the Minister -- Your

    15 Honours indicated earlier that he was now the

    16 Minister. He is not. He is the former Minister of

    17 Justice.

    18 In paragraph 6 of his affidavit, he says, "I

    19 contacted the Ministry of Defence to see what course to

    20 take. They said that they had also been visited by the

    21 representatives of the Prosecutor and were given

    22 warrants. They were also surprised by such act because

    23 the SFOR was armed and had deployed armoured vehicles.

    24 We," the Minister of Justice and the Minister of

    25 Defence, in other words, "decided not to react in order

  58. 1 to avoid shooting. On top of that, there was no point

    2 in our resisting the execution of the search as it had

    3 already been commenced."

    4 Indeed, the seizure of the weapons indicates

    5 that SFOR disarmed the persons being searched. I think

    6 it is not possible to call this anything but an armed

    7 search and seizure. If the U.S. Prosecutor went into a

    8 location with the aid of police that, it seems to me,

    9 under threat of force, is, in effect, exactly what has

    10 happened here.

    11 On the question whether this power could be

    12 or would be asserted against the U.S., or Russia, or

    13 France, or any other major power, I think the

    14 suggestion was made that the U.S. Would simply refuse

    15 but that is not the issue here. The power asserted,

    16 they would have no opportunity to refuse. What is

    17 asserted is the unilateral power without advance notice

    18 or consultation by armed force to seize evidence

    19 anywhere in the United States, the United Kingdom,

    20 France, or Russia, and I suggest to Your Honours that

    21 those countries would be startled, as would China, for

    22 example, to find that power asserted by the Prosecutor

    23 even subject to a search warrant.

    24 A search warrant was issued here. It is the

    25 execution of the search warrant without the consent of

  59. 1 the sovereign nation which is at fault, not the search

    2 warrant itself. The search warrant perfectly was, in

    3 that regard in terms of power, properly issued. I'm

    4 the not conceding probable cause or any of the

    5 specifics, but the point is it is the execution

    6 unilaterally in a sovereign country that we believe is

    7 clearly not authorised by the Statute.

    8 On the memorandum of understanding, the

    9 Prosecutor has cited the provision dealing with

    10 evidence, as he properly indicates, supplied by a

    11 witness during an interview. First of all, that is not

    12 what has evolved here. This is in a section of the

    13 memorandum of understanding that deals with witnesses.

    14 That is not the situation.

    15 In any case, that language notes that even

    16 with a warrant, the Prosecutor must seek to exercise,

    17 he must go and request consent under the laws relating

    18 to cooperation with the Tribunal. Seek to exercise.

    19 Furthermore, in that same section dealing

    20 with witnesses, in paragraph 5 it provides that

    21 investigators will not be armed. This is just a

    22 provision which is not applicable in this situation.

    23 On the question of the Blaskic opinion, we

    24 have read to Your Honours the language dealing with

    25 search and seizure. That is the relevant language, not

  60. 1 language dealing with on-site activity, as the

    2 Prosecutor terms it.

    3 As to the statistics in the declaration by

    4 Ms. Pantz, the statistics are 45 boxes, formats with

    5 large acetate coverings, as I recall.

    6 On the question of question of the

    7 inventories and the return of the materials, I suggest

    8 to Your Honours that whatever may be the difficulties

    9 in providing a detailed inventory, which has now

    10 apparently been provided eight months on, there simply

    11 is no excuse for not copying 45 boxes of materials and

    12 returning the originals to the office so that the

    13 persons whose social security benefits and other

    14 benefits could be provided by the office and its

    15 activities are not brought to a halt.

    16 If you will look at the affidavits by

    17 Zigonjic and Antunovic, you will see that they both say

    18 that having the material taken away from them, and even

    19 now, even with the inventory provided, no copy

    20 apparently, no original back to the working office in

    21 charge of social security benefits for individuals just

    22 seems to us to be unlikely to be well-received by the

    23 persons in the country in question. Finally on the

    24 question --

    25 JUDGE MAY: Could you slow down a bit,

  61. 1 please?

    2 MR. SMITH: Yes. On the question of the

    3 powers in Kosovo, I am by no means an expert on the

    4 laws of conflict, but I suggest to Your Honours that if

    5 NATO occupies Kosovo, the power to -- and does so under

    6 Article 7, enforcement powers, that it becomes, in the

    7 effect, in some sense an occupying power, and if the

    8 Prosecutor looked carefully at the law, he would find

    9 that he did not require the consent of the Yugoslav

    10 government or the Serbian government, particularly when

    11 it is that government which has, in the context of Rule

    12 59 bis, clearly enacted legislation to prohibit

    13 exercise of powers by this Tribunal. That is not the

    14 case in the situation that we're dealing with or would

    15 be the case in any other country -- virtually any other

    16 country, particularly the 22 that have enacted these

    17 statutes, laws, dealing with cooperation with the

    18 Tribunal.

    19 Because I can't read the Croatian, I request

    20 Your Honours leave to have my colleague, Ms. Turkovic,

    21 dealing with the provisions in the 1996 law and the

    22 code of procedure that the Prosecutor was citing. If

    23 she could be allowed to do that very briefly.

    24 MS. TURKOVIC: Your Honours, I will be very

    25 brief.

  62. 1 JUDGE MAY: One moment for the

    2 interpretation.

    3 MS. TURKOVIC: Yes.

    4 JUDGE MAY: Yes.

    5 MS. TURKOVIC: Yes. It is true, as the

    6 Prosecutor has asserted, that the title of the law is,

    7 and I will read in Croatian so that the interpreter can

    8 interpret, not myself in English, (As read)

    9 (Interpretation) "Decree on the proclamation of the law

    10 on extraditing criminals accused, at the demand of the

    11 International Tribunal."

    12 (In English) However, the title in section 3

    13 is: (Interpretation) "Extraditing individuals and

    14 objects, handing over."

    15 (In English) And I will read Article 27: (As

    16 read) (Interpretation) "A decision to hand over, based

    17 on the law, be executed by the Ministry of Justice of

    18 Bosnia-Herzegovina in cooperation with the Ministry for

    19 Internal Affairs of the Federation of

    20 Bosnia-Herzegovina and the Ministry of Foreign Affairs

    21 according to the rule regulating the handing over of

    22 individuals and objects which together be brought by

    23 the competent Ministers.

    24 "These rules and regulations shall be enacted

    25 within 15 days from the day that they come into being,

  63. 1 become effective, from the day this law becomes

    2 effective."

    3 Article 28.1 states that: (As read) "Objects

    4 for which or with the help of which a criminal act has

    5 been committed or objects which can serve as evidence

    6 and are requested by the International Tribunal shall

    7 be handed over to the International Tribunal in keeping

    8 with the rules from Article 27 of this law."

    9 (In English) I have to point out that these

    10 rules have never been enacted. Maybe you know it's

    11 really difficult in Bosnia today to actually obtain the

    12 consent and to enact quite a number of the laws,

    13 especially those that are sensitive and related to the

    14 ICTY.

    15 As related to the Criminal Code, I will just

    16 read the title of the section which is: (As read)

    17 (Interpretation) "Proceedings for Giving International

    18 Legal Assistance."

    19 (In English) So it's not extradition, it's

    20 legal assistance, and Article 518, which says: (As

    21 read) (Interpretation) "Requests by domestic courts for

    22 legal assistance in criminal proceedings shall be

    23 sent follows."

    24 (In English) Throughout the whole Article and

    25 Article 519 they talk about (Interpretation)

  64. 1 "International legal assistance."

    2 We can provide the Articles if you want.

    3 MR. SMITH: To conclude, Your Honour, this

    4 is, as I believe Your Honours appreciate, a matter of

    5 grave consequence to powers asserted by the Prosecutor

    6 in this situation, and that is why the Defence has

    7 raised the matter. I think I indicated at a proceeding

    8 some time ago the seriousness with which the Defence

    9 viewed the nature of the search and seizure operation

    10 and the way it was conducted. We submit that these

    11 powers, as exercised by the Prosecutor, are not granted

    12 by the Statute, are not covered by the Rules, are,

    13 therefore, unlawful and were improperly executed.

    14 Thank you.

    15 JUDGE MAY: Why would one -- one final point,

    16 Mr. Smith. Even if you were right about your

    17 submissions, you would also have to show that the

    18 admission would cast doubt on the reliability of the

    19 evidence, and that is documentary evidence, remember,

    20 or to admit it would be antithetical to and would

    21 seriously damage the integrity of the proceedings.

    22 Now, the proceedings must mean the trial.

    23 MR. SMITH: Yes, Your Honour.

    24 JUDGE MAY: Now, why would it seriously

    25 damage the integrity of the trial if we admitted this

  65. 1 evidence, even if we accepted your earlier argument?

    2 MR. SMITH: Your Honour, for a very

    3 fundamental reason, and that is that if the behaviour

    4 is lawless, if it is beyond the legal power of the

    5 Prosecutor, this Tribunal cannot, in our judgement, and

    6 should not be party to the use of that evidence. It is

    7 morally incongruous for the Tribunal both to argue that

    8 criminals tried before it should have obeyed the law

    9 but that the Prosecutor need not. Point number one.

    10 Point number two, respect for the rule of

    11 law, in our judgement, demands that the evidence be

    12 excluded.

    13 Third, the fairness of the system is

    14 fundamentally dependent on lawful behaviour by the

    15 Prosecutor. The legitimacy of the verdict is of very

    16 great importance, and a verdict based on evidence

    17 admitted which was unlawfully seized, seized outside

    18 the power of the Prosecutor, would, it seems to me, be

    19 seen in many quarters as an illegitimate verdict.

    20 Finally and most fundamentally, the ends

    21 simply do not and cannot justify the means. This court

    22 needs power to operate effectively. I have no doubt of

    23 that, but it's our submission that it cannot be seen,

    24 particularly at this embryonic stage in its development

    25 and at a time at which it is taking indictments of

  66. 1 major international significance and attracting

    2 attention to itself, it simply seems to us that it

    3 must, it must provide for the exclusion of illegally

    4 seized evidence and call the shots as they may fall.

    5 (Trial Chamber confers)

    6 JUDGE ROBINSON: Mr. Nice, I really wanted to

    7 ask you how you respond to Mr. Smith's contention that

    8 in a matter of this kind one would expect to find an

    9 explicit provision in either the Statute or the Rules

    10 providing for search and seizure. He says there is no

    11 such explicit provision.

    12 MR. NICE: We answer that quite simply by

    13 saying this is both explicit provision and the explicit

    14 delegated but effectively delegated power for the

    15 Judges to make further provision. 18(2) is wide enough

    16 and does cover exactly what happened. I repeat -- I

    17 don't repeat, because I never set it out. Taking it as

    18 read: "To collect evidence and to conduct on-site

    19 investigations."

    20 The court will also have in mind

    21 Article 19(2) that: "Upon confirmation of an

    22 indictment the Judge may, at the request of the

    23 Prosecutor, issue such orders and warrants for the

    24 arrest, detention, and surrender," and so on, as may be

    25 required for the conduct of the trial.

  67. 1 Whether or not that further amplifies the

    2 position, Article 18(2), in our respectful submission,

    3 is quite explicit. Article 54 may also be worth

    4 consideration. Rule 54, I beg your pardon. Rule 54

    5 again we've referred to. It's quite broad, and

    6 intentionally so: "At the request of either party or of

    7 its own motion the Judge may issue orders, summonses,

    8 subpoenas, warrants, and transfer orders as may be

    9 necessary for the purposes of an investigation or the

    10 preparation or conduct of the trial."

    11 There can be no doubt, in the setting of this

    12 history and this Tribunal, that these powers are

    13 necessary. They're not optional. They are absolutely

    14 necessary.

    15 The Chamber must be under no illusions in

    16 light of its comparatively recent encounters in this

    17 case with the need for documentary material, the

    18 difficulties of obtaining it, whether by cooperation or

    19 otherwise, and thus its dependence on the search

    20 warrant provision, a provision that has been executed

    21 already, as I say, unchallenged on several occasions.

    22 But my answer remains that it is allowed for. It may

    23 not be spelt out in the words "search warrant," but it

    24 is allowed for by specific provision.

    25 JUDGE ROBINSON: Thank you.

  68. 1 JUDGE MAY: Two minutes.

    2 MR. SMITH: Less than that, Your Honour.

    3 Rule 54 authorises a Judge or a Trial Chamber to issue

    4 an order, and that is not a question here. There was a

    5 search warrant issued. The problem is that it was

    6 improperly executed in a way that the Prosecutor had no

    7 power to do, a unilateral execution without going

    8 through the provisions of the law of the state which is

    9 sovereign and on whose territory it was executed, and

    10 that is not required by the search warrant itself.

    11 There is nothing in the four squares of the search

    12 warrant that authorises that or that purported to

    13 authorise it. The Trial Chamber and the Judge issuing

    14 it did not face that issue when he issued it. It was

    15 the steps taken by the Prosecutor subsequently. Rule

    16 54 is of no assistance on that point.

    17 JUDGE BENNOUNA: (Interpretation) Mr. Nice,

    18 part of what Mr. Smith has said you have not answered

    19 to, the part dealing with the possibility of returning

    20 some of the documents which were seized by you within

    21 the framework of that warrant, search warrant. Can you

    22 answer that part of his argument, that possibility of

    23 returning some of the documents which were seized?

    24 MR. NICE: Two answers. First of all, I

    25 doubt with whether, as a matter of principle, what

  69. 1 happens after a lawfully executed search warrant is

    2 executed can render the execution itself unlawful, and

    3 the remedy of an offended party would be either

    4 directly to the Chamber for relief, or if the party

    5 were a defendant at trial, an argument objecting to the

    6 admissibility of the evidence.

    7 In this case, we know not only that there has

    8 been no official complaint from the government about

    9 the execution of the search warrant, but save for the

    10 statement in an unofficial capacity of a former office

    11 holder, no complaint of any kind. So that as a matter

    12 of law or mixed law and fact as it affects your

    13 decision on this application, I would respectfully say

    14 it has no effect.

    15 Second part of the answer, a practical one,

    16 the decision about preparing inventories and returning

    17 material is not one directly within the power of the

    18 lawyers in the Office of the Prosecutor. As I have

    19 already explained, this material was sought not just

    20 for this trial and, therefore, the decision as to when

    21 it should be returned falls to those who have a wider

    22 brief than the lawyers in just this trial.

    23 Having said that, no doubt, now that the full

    24 process of preparing inventories has been completed,

    25 decisions about return of material can and presumably

  70. 1 will be made, but it seems to me that that is a

    2 practical matter as opposed to one that really affects

    3 your decision here today or whenever.

    4 MR. SMITH: I would simply refer Your Honours

    5 to Article 7 of the UN model treaty on mutual

    6 assistance in criminal matters, which deals with return

    7 of material to the requested state and states: "Any

    8 property, as well as original records or documents

    9 handed over to the requesting state under the present

    10 treaty, shall be returned to the requested state as

    11 soon as possible unless the latter waives its right of

    12 return thereof." I suggest to you that that is the

    13 accepted international practice, and it's no answer to

    14 say that it has not been complied with and there is no

    15 remedy.

    16 JUDGE MAY: The Trial Chamber will take these

    17 matters under consideration. We will announce a

    18 decision in due course. We will adjourn now until

    19 tomorrow, half past two.

    20 --- Whereupon the hearing adjourned

    21 at 5.35 p.m., to be reconvened on

    22 Tuesday, the 1st day of June, 1999

    23 at 2:30 p.m.