Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12134

1 Thursday, 13th January, 2000

2 [Ex Parte Hearing]

3 [Open session]

4 --- Upon commencing at 2.37 p.m.

5 JUDGE MAY: Yes. The registrar to call the

6 case.

7 THE REGISTRAR: Good afternoon, Your

8 Honours. Case number IT-95-14/2-T, the Prosecutor

9 versus Dario Kordic and Mario Cerkez.

10 MR. NICE: I appear for the Prosecution with

11 Mr. Scott, Mr. Lopez-Terres, and we are also joined

12 today by Mr. Harmon because the binding order

13 litigation was so closely integrated with the binding

14 order litigation that started in the Blaskic case,

15 which he prosecuted.

16 JUDGE MAY: Yes. For the Federation.

17 THE INTERPRETER: Microphone, please.

18 MR. AHMIC: [Interpretation] Amir Ahmic, a

19 liaison officer for the International Tribunal in The

20 Hague here is one of those appearing for Bosnia, the

21 Federation of Bosnia-Herzegovina.

22 MR. TOMIC: [Interpretation] Good afternoon.

23 I'm Ivan Tomic, lawyer, and I am substituting today for

24 temporarily-absent Robert Muselimovic.

25 JUDGE MAY: Thank you.

Page 12135

1 There is before the Court this afternoon

2 applications, as I understand it, relating to a number

3 of matters; first of all, the non-compliance, as

4 alleged, with orders made by the Trial Chamber on the

5 4th of February and the 1st of June of last year, and

6 an application relating to a request made on the 19th

7 of July.

8 We have had before us material which we've

9 recently received, dated the 10th of January from

10 Mr. Tomic and the 12th of January from Mr. Ahmic. We

11 also have Prosecution application and submissions dated

12 the 22nd of December.

13 It may be convenient for the Prosecution to

14 start, to tell us at the outset what they are asking us

15 to do, and then we'll hear submissions in relation to

16 that.

17 MR. NICE: I'll introduce matters, but

18 briefly, because Mr. Scott has dealt with the detail.

19 First of all, I recall that we haven't seen

20 any authority supporting Mr. Tomic's substitution for

21 Mr. Muselimovic. We knew of his authority. That may

22 be of some significance when I take you to one matter

23 of detail a little later.

24 In summary, we seek various orders.

25 Mr. Scott will deal with that in more detail.

Page 12136

1 Our basic premise is that there has been

2 non-compliance, intentional; that orders made should

3 now be very short in terms of time allowed; and that

4 the Chamber should supervise actively the production of

5 any documents, that is to say -- I'm asked to check

6 whether we're in open or closed session. As I

7 understand it, we are in open session and there's no

8 challenge to that.

9 JUDGE MAY: Is there any objection to our

10 being in open session? No.

11 MR. NICE: I return to what we seek; namely,

12 that the Chamber should supervise actively the

13 production of any documents, asking them to be produced

14 to the Chamber, following such return dates perhaps

15 almost immediately or very, very shortly afterwards by

16 return dates as the individuals to address the question

17 whether production has been sufficient or not. The

18 alternative to such a process, as we can see from the

19 schedule produced by Mr. Scott, is that very

20 substantial delays get built in. Indeed, I think it's

21 worth noting that in the absence of timetabled return

22 dates, the application for a hearing made on the 22nd

23 of June was outstanding until today's date, so time

24 passes very quickly, and that's a very compelling

25 reason for the Chamber to take a grip of these matters,

Page 12137

1 it may think, and supervise them itself.

2 I'm also going to respectfully suggest that

3 the representatives of the parties could take account

4 of the fact that although the Chamber is incompletely

5 composed today, there being only two Judges, not

6 three --

7 JUDGE MAY: That's my omission.

8 The position is this: that Judge Robinson is

9 away for urgent personal reasons, as I hope the parties

10 have been informed. We cannot make any orders in his

11 absence, as a Trial Chamber. Unless there is any

12 objection, in order to save time and to expedite

13 matters, we propose to hear oral argument now, and then

14 when we are composed as a Trial Chamber, we will make

15 orders arising from it. Judge Robinson can, of course,

16 read the transcript of this hearing and join in any

17 decision. He will be returning on or about the 25th of

18 January.

19 Is there any objection to our following that

20 course? There is an indication that there is none.

21 MR. NICE: I return to where I was, then.

22 I'm going respectfully to suggest that the

23 representatives of the parties can take account of the

24 fact that some time will pass between today and

25 Judge Robinson's return and thus between today and the

Page 12138

1 first moment when any order can be made, and that they

2 could and should take steps to prepare documentation

3 for compliance with orders, and that the time allowed

4 thereafter in the orders of the Chamber, if any such

5 orders are made, should take account of the ability of

6 the parties to use the intervening time to prepare

7 themselves.

8 That said, I have two other points to make.

9 In light of the closeness of the Bosnian

10 Croat side of the Federation with Croatia itself and

11 the Defence of Kordic, non-compliance or failure to

12 produce documents will, in our submission, in due

13 course run the risk of adverse inferences properly

14 being inferred or drawn, contrary to the interests of

15 Kordic, and it's important that those representing that

16 part of the Federation should know that.

17 The last point I want to deal with is dealt

18 with at page 35 of the brief drafted by Mr. Scott. It

19 is the passage that deals with the meetings between

20 various parties concerning the Kordic Defence, a

21 meeting that in our submission fits with what will or

22 may already have been inferred about purposes of

23 obstruction being found in part of the Federation.

24 I'm able to tell the Chamber this, and happy

25 to do so, that the documents upon which the Prosecution

Page 12139

1 rely were seized shortly before Christmas by NATO;

2 nothing to do with the OTP. They were seized in

3 Mostar. They were seized because NATO was concerned

4 about non-compliance with the Dayton Agreement. The

5 documents were seized in one building masquerading as

6 another, and of course the disguising of the purposes

7 of buildings is one of the general problems we may

8 face.

9 The documents seized appear, in general, to

10 show a connection between Croatia intelligence and work

11 being done contrary to the Dayton Agreement in

12 Bosnia-Herzegovina.

13 Now, some of those documents have been made

14 available to us, and it's those documents upon which we

15 rely, and the Chamber will already have noted that

16 there is no challenge to any of the detail so far, no

17 challenge to any of the details recited.

18 At page 35, the Chamber may wish to

19 understand the degree to which those documents, as

20 summarised, implicate the Croat part of the

21 Federation. On page 35, summarising the effect of the

22 first substantial document, we see that present at the

23 meeting, (d), was Primorac, the overall head of the

24 Bosnian Croat Secret Service, and -- and here comes an

25 interesting fact -- (e), Robert Muselimovic, the

Page 12140

1 accredited liaison officer now to this institution and

2 the man expected to appear here today.

3 The principal document that was relied on was

4 drafted by the man Muselimovic. And as a matter of

5 interest, the second document that is referred to --

6 and you'll see that at paragraph 79, at the foot of

7 page 36 -- was addressed to Ante Jelavic, a name that

8 the Chamber will find set out on the first page of the

9 schedule that Mr. Scott's prepared. He, at the time

10 that the schedule refers to him, being the Minister to

11 whom Judge McDonald issued an order for compliance, an

12 order which was never respected and complied with.

13 So that's the way in which those recently

14 discovered matters involve and implicate the Croatian

15 part of the Federation.

16 I'll hand over to Mr. Scott for the detail.

17 MR. SCOTT: May it please the Court,

18 representatives of the Federation. Your Honour, I'm

19 sure the Court's heard more of me today than you

20 probably would like, so I'll try to be short, partly

21 because I think this proceeding is postured differently

22 than the one we had this morning in this respect: The

23 Court has already come to grips, to some extent, with

24 the non-compliance of the Federation with at least one

25 of the outstanding orders, and that is the order of

Page 12141

1 this Court dated the 4th of February of 1999. There

2 was a compliance hearing, if you will, on that on the

3 20th May of last year, in which the Court made a

4 finding of non-compliance, followed by a written order

5 on the 1st of June, again documenting non-compliance

6 and ordering certain follow-up, if you will, by the

7 Federation, including the identification of senior --

8 specific senior officials to make a further response to

9 the Court essentially as to why there had not been

10 compliance.

11 In that sense, Your Honour, we are postured a

12 little further along perhaps in this proceeding than in

13 the earlier proceeding today.

14 Having said that, let me touch upon -- I'm

15 going to use, I think, this afternoon a bit more than I

16 did this morning the table which I understand has been

17 provided to the representatives for the Federation, I

18 believe. Is that correct?

19 JUDGE MAY: Have you got this table?

20 MR. AHMIC: Yes.

21 MR. TOMIC: Yes.

22 MR. SCOTT: What I will do, Your Honour, is

23 move through some of these events and stop at some

24 places to add a little bit more information out of our

25 submission of December 22nd. I will say again that

Page 12142

1 that submission, we believe, is quite detailed, quite

2 exhaustive in many respects, and can say more fully

3 what I can probably say on my feet this afternoon, and

4 we certainly rely on the full submission.

5 In terms of the table or summary, we, again,

6 Your Honour, face this afternoon a situation which

7 takes us back and runs a history of some three years.

8 On the 15th of January, 1997, starting with

9 box number 3 or item 3 on the chart, Judge McDonald, at

10 the request of the Office of the Prosecutor in the

11 Blaskic case issued a subpoena to the Federation. That

12 then, if you will, initiated a series of orders,

13 further subpoenas, findings, all directed to the

14 Federation throughout essentially the remainder of

15 calendar year 1997.

16 As the table notes, for instance at

17 item 12 -- but I'll tell the Court again this is not a

18 full -- by any means a completely detailed account,

19 because if we were to include every order and every

20 piece of correspondence, the summary would be even

21 quite a bit longer than it is. Suffice it to say for

22 today's purposes that starting with item number 3 and

23 continuing through item number 8, there were a series

24 of continuing orders and subpoenas from Judge McDonald,

25 trying to obtain compliance with the subpoena. The

Page 12143

1 subpoena, Your Honours, asked for many of the same

2 documents that we continue to seek today. So we again

3 find ourselves in a position of now having spent some

4 three years seeking these documents.

5 I will just note in particular,

6 Judge McDonald, as early as the 28th of February, 1997,

7 in item 5, even at that early date reached the point of

8 issuing a show-cause order which then Minister of

9 Defence Jelavic should not be held in contempt.

10 As Mr. Nice has already indicated, just to

11 show how intertwined, some might say incestuous, the

12 story is, this is the same Mr. Jelavic who, as we

13 speak, is the president, the chairman of the

14 Federation, of the presidency of the Federation. That

15 position, as the Court may know, rotates between the

16 Bosniak member of the presidency, the Serbian -- the

17 Bosnian Serbian member of the presidency and the

18 Bosnian Muslim member of the presidency, and since

19 approximately June of last year, this same Mr. Jelavic

20 is the president.

21 That ultimately led to -- that ultimately led

22 to -- to finish on 1997, and is further again detailed

23 in our briefs, which is again -- there's a much longer

24 story to this. I'm sorry.

25 [Trial Chamber confers]

Page 12144

1 MR. SCOTT: Leading to an exchange of

2 correspondence from the Prosecutor, Judge Arbour, on

3 the 3rd of September, 1997, item 10, basically saying,

4 after a long series of events, to Defence Minister

5 Jelavic in so many words, "Look, enough is enough.

6 Produce the documents."

7 That resulted in a letter from Mr. Jelavic in

8 item 11, dated the 18th of December, 1997, in which he

9 committed to produce the documents. And ultimately, on

10 22nd of October, 1997, some bundle of documents,

11 approximately seven or eight inches thick, were in fact

12 turned over to the Prosecutor's representative in

13 Sarajevo.

14 In reality, Your Honour, and as Mr. Harmon

15 will know from his more direct personal involvement,

16 once again, as has been true in some of the other

17 proceedings that we've been involved in today, the

18 documents produced were, for the most part,

19 non-responsive and irrelevant. There was simply a

20 volume of paper, most of which had no value to the

21 Prosecutor.

22 About that time, Your Honour, then going to

23 item 13, there was some additional applications and

24 orders to the Federation, one on the 17th of December,

25 1997 and another one in item 17 on the 27th of

Page 12145

1 February, 1998. In response to both of those orders,

2 no documents were produced.

3 In fact, Your Honour, it's safe to say that

4 at this point in time, except for the seven or eight

5 inches worth of documents produced by Mr. Jelavic in

6 October of 1997, in the three years there has been no

7 production of documents at any time by the Bosnian

8 Croat part of the Federation. I say the Bosnian Croat

9 part, Your Honour, because as the Court will understand

10 from our papers and probably has come to understand in

11 the course of these proceedings, the Muslim side of the

12 Federation, if you will, for the most part, is not in a

13 position to have access to many of those documents,

14 given the continuing nature of the division of the

15 entities in Bosnia-Herzegovina.

16 Then in specifically the Kordic case, Your

17 Honour, starting with item 24, was a request for

18 assistance. Not a binding order but initially a

19 Rule 29 request for assistance that went to the

20 Federation. Again with no effect. No documents ever

21 produced at all.

22 That was followed up by -- if you go to

23 item 32, the request for assistance was followed by a

24 binding order on the 25th of January, 1999, which the

25 Court then granted; item 35, which the then Court --

Page 12146

1 binding order entered by the Court on the 4th of

2 February, 1999. It was that binding order, outstanding

3 order, which led to the compliance hearing last May.

4 The Court ordered at that time -- granted the

5 Prosecutor's application with the exception of

6 paragraphs 28 and 39 and directed the Federation

7 respond by 5th of April of last year.

8 Going to item 38, you will see that, in fact,

9 no documents were produced in compliance with the

10 Court's order, leading to item 39, the Prosecutor then,

11 on the 16th of April, requested a hearing on the

12 Federation's non-compliance. Then going on to item 44,

13 on the 27th of April, this Chamber set a hearing for

14 the 20th of May to allow -- "To allow the BiH

15 representatives to explain why it," that is the

16 Federation, "had not complied with the previous

17 order." That then led to item 46, that on the 20th of

18 May last year, there was, in fact, a compliance hearing

19 for this Chamber that concluded that the Federation

20 was, quote, "in breach of its duty to comply with the

21 4th February order."

22 That then takes us on to item 49.

23 Following the Court's hearing on May 20th, a

24 written order was issued on the 1st of June. Again,

25 the Court recorded or found the Federation's

Page 12147

1 non-compliance and then entered the following

2 additional order: Ordered the Federation, quote, "to

3 identify specific senior officials, either at the

4 ministerial or at another level, who are responsible

5 for complying with the Trial Court's order and to

6 direct them to comply."

7 In the week or two after, the evidence would

8 show, after that June 1st order, in item 50 the Prime

9 Minister of the Federation indeed, in written orders or

10 written communications, identified the following

11 specific senior officials and ordered them again,

12 having first ordered them to comply as early as

13 February of last year, but ordered again or directed

14 that they comply with the Court's order to -- and those

15 officials being the BiH Federal Minister of Defence,

16 the BiH Federal Minister of Justice, and the BiH

17 Federal Minister of the Interior. Unfortunately,

18 notwithstanding that further direction, still no

19 documents were produced, which then takes us to item

20 52.

21 On the 22nd of June, the Prosecutor requested

22 a hearing on this matter, which in this respect brings

23 us to today's hearing.

24 At the same time, Your Honour, while that

25 particular series of events was unfolding -- I'll go

Page 12148

1 back to item 34.

2 I must point out, with no particular offence

3 meant toward Mr. Tomic, who joins us today, that even

4 as far back as January of last year, Justice Arbour in

5 our office, having increasing difficulties with getting

6 any cooperation or assistance from the Bosnian Croat

7 side of the Federation, and in a letter to the

8 President of the Federation, Judge Arbour raised her

9 concerns. That letter is a matter of record, attached

10 to our submission.

11 Going to item number 41, and again

12 simultaneous with some of the other events we've now

13 been through, on the 16th of April the Prosecutor

14 applied for a further binding order, a new binding

15 order for a different set of documents, which then

16 takes us to item 48 in the chart.

17 On the 1st of June at the same -- in fact,

18 the same date as the Court's order on the February 4th

19 order, on the 1st of June the Court found the

20 Prosecutor's 16 April application to be specific,

21 relevant, and not unduly onerous, and ordered the

22 Federation to produce the documents by 1 August 1999,

23 which takes us to item 57, and we have to report to the

24 Court that, in fact, no documents were produced,

25 essentially, if you will, setting up, Your Honour, at

Page 12149

1 least a second, if not third or fourth, instance of

2 non-compliance.

3 We then have, after that, one outstanding

4 application dated the 19th of July, which is item 53,

5 and that application is pending. We hope the Court

6 will act on that.

7 That is a very quick review of three years

8 worth of events, the net result of which is, again,

9 except for the handful of irrelevant documents produced

10 by First Minister, now President, Jelavic in October of

11 '97, no documents of any sort being provided to this

12 Tribunal since that time. There are at least two now

13 outstanding orders with non-compliance and one

14 application pending.

15 We would say, Your Honour, that this history

16 is again an instance where these are not isolated

17 incidents. It reflects, once again, a strategy or

18 policy of obstruction, resistance, delay to this

19 Tribunal's work by the Bosnian Croat part of the

20 Federation. I say that because in this particular

21 instance, I should say for the Court, and the Court

22 will hear from the representatives later, we have not,

23 in these respects, had any trouble working with

24 Mr. Ahmic or the Bosniak side. Mr. Ahmic has been

25 entirely cooperative and has tried to assist us as much

Page 12150

1 as he could in these matters. But as I said earlier,

2 the Bosnian Muslim or Bosniak side of the house, if you

3 will, is, generally speaking, not in a position to have

4 access to these -- to what were at one time and perhaps

5 still are HVO or Herceg-Bosna government documents.

6 Again, Your Honour, it's our position that

7 it's not by accident that there has been continuing

8 non-compliance since January 1997 but a policy of

9 resistance to this Tribunal's work.

10 I think, Your Honour, what I want to do is

11 again I'm going to rely more extensively this afternoon

12 than this morning on our papers.

13 There is every reason for the Prosecution and

14 for the Court to conclude that there is, in fact, or at

15 least was -- I guess I should say at least was at one

16 time a substantial volume of relevant material that

17 must have existed. Here again, we know from the

18 investigations conducted by this institution to date

19 that the HVO, Herceg-Bosna, the HDZ political party,

20 these were all modern organisations; yes, perhaps not

21 to English standards, perhaps not to an American

22 standard, but nonetheless very bureaucratically

23 oriented and, in fact, coming out of a communist system

24 in which paper can be extremely important, but there

25 was extensive record keeping. And we've cited in our

Page 12151

1 brief just a few instances on page 3; repeated

2 indication after indication of documents being

3 archived, documents being sent to central records,

4 documents being sent to files, documents being sent to

5 the personnel department. There was extensive record

6 keeping, and there is every reason to believe that

7 those documents at one time existed, at least; further,

8 that an archive was, in fact, established as long ago

9 as 1993.

10 I'm looking now and I'll just touch upon

11 pages 4 and 5 of our submission.

12 I want to highlight one particular document

13 to the Court, if I can, if no others today at least in

14 this part of our submission, and that is what is

15 Exhibit 1 to the Prosecutor's submission, and it's

16 probably worth -- if the Court has access to the

17 exhibits, I think on this one it's worth pausing a

18 moment to look at the actual exhibit. In fact, if the

19 usher has access to it, perhaps he could put it on the

20 ELMO. It would be Exhibit 1 attached to the

21 Prosecutor's 22 December 1999 submission. If it's

22 easier, I can simply hand you one. Yes, that's all

23 right. Maybe just the first two or three pages.

24 For the record, Exhibit 1, for the purposes

25 of this hearing and for the purposes of our December

Page 12152

1 22nd submission, this is a document titled "Work Log."

2 If you go to the second page, Mr. Usher, the actual

3 decision, this was a document generated or at least

4 being communicated at this time by the chief of the

5 Travnik Defence Administration, Anto Puljic. It's our

6 understanding, Your Honour, based on investigation,

7 that as "Travnik Defence Administration" is used here

8 doesn't mean simply the municipality of Travnik or the

9 town of Travnik but essentially the region known as

10 Central Bosnia, what would have been the province --

11 the Travnica province under the Vance-Owen Plan, and so

12 it was a regional organisation, if you will, and this

13 is the chief. You can get a sense, Your Honours, from

14 looking at this particular document, the top part of

15 it, just how official this all is. This is no mere

16 happenstance. There's legislation, there's gazettes,

17 there's statutes, there are formal decisions from the

18 Croatian Defence Council. Going to the middle of the

19 page, "a decision on reference numbers of documents at

20 the Travnik Defence Administration," and they even have

21 a coding system. There's even some numbers set aside

22 for recruitment, some for civilian defence, et cetera,

23 et cetera.

24 What's particularly interesting to this

25 particular case is that at the top of the third page,

Page 12153

1 if the usher could go to that, and if you could show

2 the very top right corner, please, if I have the right

3 document. Handwritten on the original Serbo-Croatian

4 version, which is attached, the notation "11 August

5 1993," and I'm sorry and I don't think there will be

6 any dispute, I'm sure, "Verified for Mr. Kordic's

7 needs." If you look at the body very briefly of the

8 document, you'll see the nature of the document is

9 apparently being communicated to Mr. Kordic, being

10 extensive orders, military records, appointments,

11 assignments, et cetera.

12 I simply stop and emphasise that particular

13 document for a moment again to give the Court some

14 further idea. These documents existed, have existed.

15 Mr. Kordic, as a central figure in Herceg-Bosna and the

16 HVO, was right in the middle of the paper trail. And

17 as the Court has heard the Prosecution say before,

18 there's no reason to believe other than that there were

19 extensive documents that would have passed through

20 Mr. Kordic's hands, if you will, either authored by

21 Mr. Kordic or his staff or being sent to him and his

22 staff.

23 Again, in three years the Bosnian Croat side

24 of the Federation has generated none of those

25 documents, again except for the few in October of

Page 12154

1 1997.

2 The next few pages talk about an archive, the

3 existence of an archive. We submit, Your Honours, that

4 it was well documented to have existed at least up

5 until 1997, if not later. In paragraph 15, for

6 instance, of our papers, we point out the fact that at

7 least as recently as the 28th of February, 1998,

8 Major-General Ivica Primorac, who, again to follow up

9 again on what Mr. Nice introduced us to a few minutes

10 ago, this is the same Ivica Primorac who was the head

11 of the Bosnian Croat Intelligence Service, was saying

12 in a letter to Deputy Prosecutor Blewett confirming at

13 that time that, in fact, certain HVO documents had been

14 produced to the Office of the Prosecutor from the

15 archivist for the Herceg-Bosna war archive.

16 I'll stop at that, Your Honour, on that

17 particular piece of the picture.

18 The next part of our brief, Your Honour, goes

19 into again this history of non-compliance.

20 In paragraphs 18 through -- excuse me, pages

21 18 through 27 cover much of the ground that we've

22 covered through the summary chart. Again, simply no

23 compliance.

24 It's rather telling, Your Honours, that it

25 occurred to me that it is not a stretch to say that

Page 12155

1 Ahmici, the incidents in Ahmici, the atrocities there,

2 were one of the events that led to the creation of this

3 Tribunal in 1993. One could point to a handful of

4 particular incidents, certainly Srebrenica, certainly

5 Ahmici, perhaps others, certainly others, that led to

6 the Security Counsel creating the very body that we all

7 find ourselves sitting at this afternoon. It's either

8 ironic or unfortunate that here we are, some seven

9 years later, still trying to obtain basic documents

10 about the Ahmici atrocity.

11 Again, Your Honour, it's the Prosecution

12 position that these things are not by accident but a

13 matter of policy, as a matter of a strategy of

14 continued hostility to this body. We have set that out

15 in some detail in pages 27 through 34 of our submission

16 of the 22nd of December. Again, I'm not going to cover

17 it in any great detail this afternoon, save two

18 points.

19 Part of -- to be extremely candid, Your

20 Honour, and I say this with representatives of the

21 Federation in the courtroom, part of the concerns of

22 the Prosecutor is that we will find ourselves, after

23 all these years, not having been produced any of these

24 documents, only to get into the Defence case in the

25 trial itself of Kordic and Cerkez and find ourselves

Page 12156

1 then confronted with a flood of documents only

2 introduced by the Defence but never available to the

3 Prosecution.

4 To some extent that exact scenario happened

5 in the Blaskic case. And if I can direct the Court, I

6 think it's a point worth pausing on, to paragraph 71,

7 page 33 of our submission.

8 The Court will recall that Colonel Blaskic

9 was on the witness stand himself for some number of

10 weeks, testified in great detail, almost on a

11 minute-by-minute basis of some days what he was doing,

12 what orders he was giving, what communication he was

13 receiving, and, in fact, this was alluded to again, I

14 believe, by Mr. Nice yesterday. In fact, on the 16th

15 of April, there are a substantial number, and I come to

16 the Court unfortunately not with a number firmly in

17 mind, but something in excess of a dozen or so phone

18 calls between Colonel Blaskic and Dario Kordic on the

19 16th of April. More than 12. By Colonel Blaskic's own

20 testimony, on the date of Ahmici, he's on the telephone

21 with Dario Kordic more than 12 times.

22 This concern that Colonel Blaskic had come in

23 his defence and asked to speak great detail about his

24 records and the Defence was able to produce a number of

25 documents, again never having been shown to the

Page 12157

1 Prosecution until the Defence case, as Mr. Harmon can

2 verify, that is not lost, that situation, the

3 significance of that situation was not lost on the

4 Blaskic Trial Chamber. On 22nd of April, some two or

5 three months before the conclusion of that trial, the

6 Trial Chamber issued an order titled "Order for the

7 production of documents used to prepare for

8 testimony."

9 In the middle of the quote on page 33, to

10 highlight what was driving the Court's concern, the

11 order said, "Considering that in his testimony Blaskic

12 offered such detailed and exhaustive evidence that

13 would be impossible for any witness to do so relying

14 solely on his own memory, that the witness himself

15 asserted that he's relying inter alia on the

16 above-mentioned sources, a diary, a military log, an

17 archive," ordered -- first of all, ordered the Defence

18 to disclose to the Trial Chamber the documents in

19 question -- that is, the war diary and the military

20 log -- by the 15th of May, 1999, and ordered the

21 Federation, same Federation that appears before you

22 this afternoon, ordered the Federation, if necessary,

23 to again submit these same documents to the Court by

24 that date.

25 Continuing on over into paragraph 72. There

Page 12158

1 was some correspondence forthcoming then from the

2 Federation, ironically perhaps, at about the same time

3 this Court was issuing its 1st of June order, where

4 again the Federation produced no documents. And the

5 long and short of it is, Your Honours, the Federation

6 produced no documents in response to Judge Jorda's

7 order either, still, a third, fourth, fifth or sixth

8 instance of non-compliance. Never produced the

9 documents that the Blaskic Chamber ordered.

10 As I've already indicated to the Court and as

11 Mr. Nice has as well, in paragraph 74, it was only some

12 few months ago that this same Mr. Jelavic became the

13 chair of the presidency of the Federation, the position

14 he holds today, a position that he holds at the very

15 same time that the Federation continues to be in

16 repeated non-compliance. The same Mr. Jelavic that

17 Judge McDonald issued a show cause order for contempt

18 in February 1997. So here we are some almost three

19 years later, same Mr. Jelavic, same non-production of

20 documents.

21 I think that's all I'm going to emphasise,

22 Your Honour. Our brief paper on additional aspects in

23 various detail but it speaks well enough for itself.

24 I did prepare, Your Honour, and I think it's

25 worth distributing at this time, two newspaper

Page 12159

1 articles which touch upon a matter already talked about

2 by Mr. Nice, but I see no reason for the Court not to

3 have this information. You may have seen these in the

4 course of your own daily newspaper reading, perhaps,

5 but I think as the Court sees these documents, the full

6 picture of some of the things that have been happening

7 in the past six weeks, certain information that's come

8 to the Prosecutor's attention, will perhaps come

9 together and make more sense.

10 So if I could hand to the usher -- I'm happy

11 to provide them to the representatives of the

12 Federation as well, several copies. We've marked it,

13 for purposes of the record, Your Honour, as Exhibit 8,

14 and just so there is no confusion, there is not, at

15 this juncture, Exhibits 1 through 7, but simply marked

16 a unique number for purposes of the record.

17 The first is an article from the Financial

18 Times dated the 20th of December. The second is an

19 article from the same date from the International

20 Herald Tribune. These detail in part, Your Honour, the

21 actions by SFOR in investigating essentially a

22 Croat/Bosnian Croat intelligence network operating in a

23 false building in Mostar. It was conducted under

24 the -- the investigation was conducted under the Dayton

25 Agreement because of these activities being

Page 12160

1 anti-Dayton.

2 The Court will see, when it has a chance to

3 read the articles in full, if it has not seen these

4 articles before, that it became clear that, in fact, a

5 large measure of this intelligence operation is

6 directed against this Tribunal, to the point of

7 investigators and staff of this Tribunal being

8 surveilled in the field. I submit to the Court this is

9 hardly an indication of good faith cooperation with the

10 Tribunal.

11 That concludes my remarks, Your Honour.

12 JUDGE MAY: Mr. Scott, before you finish,

13 there's something I want to raise. In paragraph 82 of

14 your report, you mention what you're asking us to do,

15 and so that the representatives can deal with this --

16 MR. SCOTT: Yes, Your Honour.

17 JUDGE MAY: -- it would be helpful for us to

18 hear what it is you're asking the Trial Chamber to do

19 now.

20 MR. SCOTT: Yes, Your Honour. Your Honour,

21 this again takes us back to the existing jurisprudence

22 of the Tribunal, which admittedly perhaps is quite

23 limited at this time, based primarily on the Appeals

24 Chamber judgement in the Blaskic subpoena litigation

25 from October of 1997.

Page 12161

1 As perhaps was pointed out this morning, the

2 issues are not simple, I think the intellectually

3 honest answer to some extent, and perhaps my

4 understanding of it that I've operated on, the basis

5 of, is not 100 per cent accurate.

6 It has been our understanding, and the

7 Prosecution has tried to move forward on the premise

8 that were we to get to the point as we were attempting

9 to posture these proceedings last May and June, that in

10 the face of continued non-compliance by the Federation

11 and the Prime Minister's subsequent identification and

12 further direction to the Ministers of Defence, Justice

13 and Interior, to, in fact, comply, and then given their

14 continuing -- or the Federation's continuing

15 non-compliance, it may posture us in a sense that under

16 the logic or reasoning of the judgement that we talked

17 about this morning, that is, the motion that a public

18 official is downgraded, to use the judgement's term, to

19 acting in a private capacity, subjects that person to

20 potentially, at least, direct process from this Court.

21 Now, I'm not going to again stand here and

22 tell the Court that that's all necessarily crystal

23 clear because it probably isn't. All I can say is that

24 I think for all of us, the Prosecution and for the

25 Court, has to find its way through here as best as we

Page 12162

1 all can. There has to be -- I think logic and the

2 implied powers of this institution have to suggest that

3 there is a way for the Court to at least to make

4 further attempts to obtain compliance. In fact, there

5 is certain language in the Blaskic judgement that talks

6 about the implied and inherent powers of this

7 Tribunal. Powers, for instance, reserved under Rule 54

8 to issue any orders essentially necessary, and I'm

9 paraphrasing in my own words, but essentially necessary

10 to carry out the Tribunal's mandate.

11 Certainly the Security Council could not have

12 meant for this Tribunal to have orders that were

13 unenforceable. Although, one can write law review

14 articles, perhaps, on whether that's the case.

15 That's where we are. We would think, Your

16 Honours, that that's the only way that we'll move

17 forward, either -- the only other alternative is we

18 stop where we are and this Chamber can recommend or

19 refer to the President a finding of non-compliance by

20 the Federation to be reported to the Security Council,

21 a step which has been taken on several other occasions

22 and was taken as recently, not as the result of a Trial

23 Chamber referral, but as the Court knows, in the

24 instance of Croatia, by the referral of the Prosecutor

25 to Judge McDonald last fall, resulting in a report of

Page 12163

1 non-compliance on Croatia to the Security Council.

2 That avenue is open, I think, if the Court,

3 in the face of the Federation's continuing

4 non-compliance, wants to bring that matter to President

5 Jorda's attention. President Jorda can make a further

6 finding of certification and pass that on to the

7 Security Council for action. I guess those are the two

8 alternatives I see.

9 JUDGE MAY: So it's plain, in the first of

10 two you're asking us to order the Federation to

11 comply. If they don't, to subpoena the Ministers of

12 Defence, Justice, and Interior to appear and explain

13 why not.

14 MR. SCOTT: Yes. That's correct. All

15 indications, Your Honour, and these are parts of our

16 submission that I didn't detail this afternoon, the

17 Defence Minister is the most logically responsible

18 official. Where the two armies were, at least on

19 paper, joined together some couple of years ago, and

20 the date's in our papers, where it was no longer, at

21 least again on paper, no longer the HVO army and the

22 Bosnia Muslim army, but then both became part of the

23 Federal Minister of Defence, both of those

24 organisations, if I can use the word, amalgamated into

25 a single unit, a single army under the direction of the

Page 12164

1 Minister of Defence. By that and by legislation, by

2 Bosnian legislation, by -- which specifically made the

3 Minister of Defence responsible for all existing

4 archives both on the Bosniak side and on the Bosnian

5 Croat side.

6 So it's our position, Your Honour, that under

7 the statute, and history, and governmental structure of

8 the Federation at this time, the Minister of Justice is

9 responsible for what once were the HVO records or war

10 archive.

11 Beyond that, Your Honour, as we have

12 indicated before, it's not unusual to think of the

13 Minister of Justice of most countries as having

14 substantial responsibilities for making sure that a

15 country meets its legal obligation to international

16 organisations, and one would think that the Minister of

17 Justice might have something to say to this Tribunal.

18 So I just mention those two particularly.

19 If I could have a moment, Your Honour.

20 [Prosecution counsel confer]

21 [Trial Chamber confers]

22 JUDGE BENNOUNA: Mr. Scott, can you help us

23 about -- is there any change in this situation, because

24 as you mentioned, there is this rotation in the

25 presidency, a new president, Mr. Jelavic, and so is

Page 12165

1 there -- what about the new situation? Because we

2 described the former situation when we have a former

3 president who gave an order to a Minister of Defence

4 and Justice that were not executed. Now we have

5 another situation which can -- we have to adapt to --

6 to adapt even the legal liaising to the new situation,

7 and perhaps the representatives here of the Federation

8 can help us about what are their positions now, because

9 we knew in the former hearing what was the position.

10 We have, of course, with decision taken at the level of

11 the presidency, an order sent to the Ministers

12 concerned and no reaction. We have just an exchange of

13 letters and so on.

14 MR. SCOTT: Yes.

15 JUDGE BENNOUNA: This is the first question.

16 The second question for me is: What about -- because

17 for the United Nations, the state is

18 Bosnia-Herzegovina, and the Federation is part of

19 Bosnia-Herzegovina, which is the state member of the

20 United Nations. So another difficulty here, at least

21 from a legal point of view. Can you also help us

22 concerning this other problem? Thank you.

23 MR. SCOTT: Thank you. I'll do my best, Your

24 Honour. The Chamber has quickly taken us into some

25 complicated areas, and I don't profess to be a

Page 12166

1 particular expert on the issues but I'll share with the

2 Court as best I can.

3 As far as I know, the only member state of

4 the U.N. is the Republic of Bosnia-Herzegovina, which

5 is made up, as you recall, of essentially two entities,

6 the Bosnian-Croat Federation being one of the two,

7 which itself is a Federation, if you will, between the

8 Muslim side and the Croat side, and the other entity

9 being the Republika Srpska. So you have entities, and

10 I think under Dayton and I think under even the most

11 recent rule changes, I think some of the Rules were

12 changed in the last plenary for orders not only to

13 states but entities. Certainly the Federation and

14 Republika Srpska are entities, but I think there's only

15 one state, Your Honour. I'll look -- I think that's

16 right. I'm getting confirmation from my colleagues,

17 Your Honour, on that.

18 In terms of the appointment or naming of

19 officials, the Prime Minister, up until this time,

20 hasn't changed. I can't begin to tell you all the

21 nuances of these different positions and how the Prime

22 Minister relates, for instance, to the president. But

23 the Prime Minister of the Federation today is the same

24 Prime Minister who directed the specific senior

25 officials back in June of last year. So we're perhaps

Page 12167

1 assisted by the fact that that Prime Minister is still

2 the same person.

3 I thought perhaps one of the things,

4 Judge Bennouna, you were going to say, and perhaps its

5 still something that we should put on the table, is

6 whether, in fact, given the continuity of Mr. Jelavic's

7 role in these matters going back to 1997, perhaps Mr.

8 Jelavic is one of the people who should come before the

9 Tribunal. After all he was the one who started this

10 back in 1997. So I'll simply put that on the table as

11 well.

12 Just to finish, Your Honours, with -- I was

13 getting various points from my colleagues. On the

14 phone calls between Kordic and Blaskic, just so the

15 record is clear on that I'm told that those were not

16 all on the 16th of April but were between the 16th and

17 18th of April, a short time, a key time as the Court

18 knows, and a substantial number of telephone traffic

19 between Colonel Blaskic and Mr. Kordic. Just so the

20 record is clear.

21 There is also, as indicated in our papers

22 Your Honour, there have been statements to the effect

23 that the HVO archive was never, in fact, transferred to

24 the Federation archive. In trying to touch on these

25 things briefly it may get more complicated but it's in

Page 12168

1 our papers and I mention it again. Mr. Harmon reminds

2 me of it. There are statements from Federation

3 officials to the effect that the HVO archive was, in

4 fact, never transferred to the federal -- to the new

5 Federation archive.

6 There's one final matter, Your Honour, that

7 we need to go into private session just for about two

8 minutes, if I could.

9 JUDGE MAY: Before we do go into private

10 session, so that I can understand the submission, who

11 do you submit, Mr. Scott, that we should address the

12 subpoenas to, if we were minded to do it.

13 MR. SCOTT: Your Honour, putting aside this

14 late nomination, if you will, of Mr. Jelavic, I think

15 again it would be the Minister of Justice, and I don't

16 have the names at my fingertips. I'm happy to provide

17 them to the Court. Most of it is in the correspondence

18 which is attached to our submission. But it would be

19 the Minister of Defence, the Minister of Justice, and

20 the Minister of Interior.

21 JUDGE MAY: Very well. We'll go into closed

22 session.

23 [Private session]

24 (redacted)

25 (redacted)

Page 12169

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13 page 12169 redacted private session

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Page 12170

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

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7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 JUDGE MAY: Now, which of the representatives

17 is going to go first? Yes, Mr. Ahmic.

18 MR. AHMIC: [Interpretation] Your Honours, I

19 should like briefly to inform you of measures taken in

20 connection with the orders received from this Trial

21 Chamber, after which I would present my position

22 regarding the compliance and non-compliance of the two

23 previous orders and also of the third order issued by

24 the Trial Chamber.

25 The scheduling order of this Trial Chamber,

Page 12171

1 in case number IT-95-14/2-T, dated the 15th of

2 February, 1999, are addressed, together with the

3 previous two orders, to the Prime Minister of the

4 Federation of Bosnia-Herzegovina, Mr. Bicakcic. To the

5 President of this Trial Chamber, I sent yesterday the

6 report of the Prime Minister regarding the third order,

7 and allow me now to read that order in its entirety.

8 "Bosnia-Herzegovina. Federation of

9 Bosnia-Herzegovina. Prime Minister." The number of

10 the document, "01-02-318-99." "Sarajevo, 11th January,

11 2000. Strictly confidential. Very urgent.

12 International Criminal Tribunal for the former

13 Yugoslavia, Trial Chamber III."

14 JUDGE MAY: Mr. Ahmic, I don't want to stop

15 you taking any course. It does create problems for the

16 interpreters when letters are read out. This is quite

17 a lengthy document. It may be convenient -- we've got

18 a copy of it -- if you simply summarised it for the

19 record rather than reading it out.

20 MR. AHMIC: [Interpretation] Very well, Your

21 Honour. I just thought it would be better for me to

22 read it, in view of the beginning of this hearing when

23 we learned that Judge Robinson is absent, so it would

24 be perhaps more convenient for him to have the complete

25 report. But in any event, I shall do my best to

Page 12172

1 summarise it, as you have suggested.

2 JUDGE MAY: Judge Robinson will have a copy,

3 of course, of this. If you would like to summarise

4 it.

5 MR. AHMIC: [Interpretation] The summary would

6 be that the Prime Minister says that in executing all

7 orders of Trial Chamber III, he has asked those orders

8 to be honoured but that the expected results were not

9 obtained, and he said that the execution on the part of

10 the responsible ministers was not in good faith, to say

11 the least.

12 Also, the Federal Prime Minister extends full

13 support to the positions of the Prosecutor in his

14 confidential report submitted to the Trial Chamber on

15 the 22nd of December, 1999, and the Federal Prime

16 Minister is of the opinion that the report of the

17 Prosecutor correctly -- I'm sorry. The Prime Minister

18 feels that he has done everything in his power to

19 obtain the requested document, and to honour the orders

20 issued to date, and expects this Trial Chamber, in view

21 of the application of the Prosecutor, to take the

22 measures that the Prosecutor referred to in addressing

23 you prior to me.

24 If I may, I would add that it is obvious that

25 all of us who are involved in the execution of the

Page 12173

1 orders of this Trial Chamber, with the aim of

2 establishing the truth and serving justice and

3 assisting this Trial Chamber, are encountering what I

4 would be bold to say as obstruction on the part of

5 certain bodies within the government of

6 Bosnia-Herzegovina, for how else can we explain that

7 the previous Minister of Justice, Mr. Ignac Dodik, did

8 not respond to the first two orders of this Trial

9 Chamber? And when he did respond, he did so with the

10 clear intention to disorientate not only the Federal

11 Prime Minister but also this Trial Chamber.

12 I should like to remind Your Honours of the

13 Prime Minister's report of the 10th of August,

14 transferred to this Chamber on the 18th of August, and

15 I could quote just a part of that report which says

16 that, in fact, Minister Dodik, instead of acting in

17 accordance with the orders of the Trial Chamber,

18 actually acted in accordance with the requests of the

19 Defence counsel of the accused Cerkez, and the reports

20 he received from competent institutions, submitted them

21 to the Federal Minister as his response to the orders

22 of the Trial Chamber. Let me just quote from the Prime

23 Minister's letter, saying that those reports too that

24 were forwarded to the Trial Chamber, though, they are

25 actually in response to the requests by the Defence

Page 12174

1 counsel of Mr. Mario Cerkez.

2 One might also ask why the Minister of

3 Justice, Mr. Colak, has not responded to the order of

4 this Trial Chamber. Before coming to this hearing, I

5 received a letter from the Deputy Defence Minister,

6 Mr. Sahib Mahmuden [phoen], in which he denies and

7 rejects the letter of the Defence Minister, Mr. Prce,

8 in which the latter says that the documents are in the

9 archives of the main staff of the army of

10 Bosnia-Herzegovina, according to him, because I think

11 that anyone with any knowledge of the circumstances in

12 Bosnia-Herzegovina must know that those documents

13 cannot be found in the archives of the army of

14 Bosnia-Herzegovina. Mr. Miroslav Prce, as the Defence

15 Minister, on the basis of our knowledge established so

16 far points to the fact that the document issue can be

17 found within the framework of the Defence Ministry, has

18 repeatedly provided this Trial Chamber with quite

19 contradictory responses. In this case too, in the case

20 of Mr. Miroslav Prce, like the previous Ignac Dodik,

21 the former Justice Minister of the BH Federation, are

22 intended consciously to mislead the Prime Minister and

23 this Honourable Trial Chamber.

24 As evidence of the obstruction of the

25 Croatian cadres in the Federation of

Page 12175

1 Bosnia-Herzegovina, allow me briefly to read a letter

2 that was handed to you yesterday from the Ministry of

3 the Interior, Mr. Mehmet Zilic, in which he says, and I

4 quote:

5 "Objectively, I was not able to gain

6 possession of the requested documents, in view of the

7 fact that any such documents listed in the annexes were

8 created in the so-called Ministry of the Interior of

9 Herceg-Bosna, because it is a fact that the so-called

10 Herceg-Bosna Ministry of the Interior existed and was

11 operating on the territory of Bosnia-Herzegovina."

12 Further on, the Minister says that the

13 documentation of the so-called Ministry of the Interior

14 of Herceg-Bosna requested by the Tribunal is not kept

15 in the archives of the Federal Ministry of the

16 Interior, and finally he informs this Honourable Trial

17 Chamber that all three previous orders that preceded

18 this hearing were submitted to officials from the ranks

19 of the Croatian people in the headquarters of the

20 Federal Ministry of the Interior and the Cantonal

21 Ministry of the Interior, but that they have failed to

22 respond so far or their response was limited to the

23 statement that they failed to gain possession of the

24 requested document.

25 To sum up, the Bosniak part of the Federation

Page 12176

1 of Bosnia-Herzegovina has done everything it could so

2 far to comply with the orders of the Trial Chamber, but

3 objectively we are unable to gain possession of

4 documents which were created or existed within the HVO

5 organisation and the bodies of the so-called

6 Herceg-Bosna, the HDZ, and the Republic of Croatia.

7 I have been mandated to tell this Honourable

8 Trial Chamber today that I fully support the position

9 taken by the Prosecutor, as presented in the report of

10 the 21st of December of this year to this Trial

11 Chamber, and I also support the position upheld today

12 by Mr. Scott in addressing Your Honours in his

13 submissions today, and I support the position that in

14 addition to Mr. Ante Jelavic, that the Ministers of the

15 Federation of Bosnia-Herzegovina representing the

16 Croatian people should be summoned, the people who are

17 responsible for the execution of court orders, as well

18 as those persons that this Honourable Trial Chamber

19 finds to be responsible for non-compliance of Court

20 orders to date.

21 I hope that my distinguished colleague,

22 Mr. Tomic, will certainly have some additional

23 information to provide, because he told us repeatedly

24 that he needed to consult with officials in the

25 Federation. I hope he has had occasion to have those

Page 12177

1 consultations and that he will convey them to you.

2 Thank you, Your Honours.

3 JUDGE MAY: Thank you.

4 Mr. Tomic.

5 THE INTERPRETER: Microphone, please.

6 JUDGE MAY: Yes. Could you move along a bit,

7 because Judge Bennouna is having some difficulty seeing

8 you. Could you move along to the middle so that

9 Judge Bennouna can see you.

10 MR. TOMIC: [Interpretation] I'm sorry. I

11 apologise. I apologise, Your Honour.

12 Thank you for giving me the floor.

13 I wish to pay my respects to the Court, to my

14 learned friends from the Prosecution, and my colleague

15 from the Federation.

16 I also owe an explanation with reference to

17 the question asked by the Prosecution as to my capacity

18 here today. Today I am here as a conventional lawyer,

19 as any other lawyer, and I was requested to stand in

20 for absent Mr. Muselimovic, who was to take up his

21 duties but has not done so yet, and, therefore, I here

22 appear as a lawyer during a particular session. And

23 after that, I shall ask Mr. Usher to show the

24 authorisation issued by Andric Luzanski, the

25 Vice-President of the Federation of BH.

Page 12178

1 I was somewhat caught aback by a factor which

2 prevents me from answering some allegations in more

3 detail. Namely, it was only after I arrived in The

4 Hague that I learned that the confidential report, that

5 is, the latest submission of the Prosecution, was sent

6 in turn to the Federation of BH but that it was only on

7 the 11th of this month that it was forwarded to Mostar,

8 where I or, rather, Mr. Muselimovic are normally. So

9 this was due to technical reasons which did not depend

10 on me, and I therefore cannot really pronounce myself

11 on all these details. However, out of respect for the

12 Court and my learned friends, I'm not seeking any

13 delay.

14 All I wish to point out is that according to

15 the instructions I was issued and information I

16 received in contact with Croat officials in the

17 Federation of BH, the reasons for non-submission of

18 documentation were already -- that you were already

19 notified about the reasons; that a number of them are

20 lost or mislaid, that some have been misappropriated,

21 because we see some memoirs appearing today without any

22 historical distance, and so on and so forth.

23 But I otherwise feel it is my duty to touch

24 upon two conclusions of the Prosecution, that it is a

25 systematic obstruction and, secondly, an absence of

Page 12179

1 good faith. I think that these conclusions are much

2 too harsh. The Croat side has been pointed out for a

3 long time, and I believe this is an extenuating

4 circumstance rather than as an excuse, that the

5 cooperation with the Tribunal has an inherent

6 component, and that is respect for the interests of all

7 parties.

8 A while ago, we heard an example of

9 misunderstanding, that is, the impossibility of the

10 Croat side to prove some very clear facts which should

11 not really need to be proven under Rule 94, but now the

12 representative of the Prosecution said that the only

13 state member of the United Nations is the Republic of

14 Bosnia-Herzegovina. But, gentlemen, this is absolutely

15 incorrect, and this error would not be so important but

16 it is reflecting a situation which seems to have

17 prevailed here for years; that is, if the Croat side is

18 objected against because of the absence of good faith,

19 then the Bosniak side evidently is guilty of showing

20 absolutely no flexibility with regard to Croat

21 objections. And therefore my proposal is, first, that

22 the Tribunal -- that the Court should consider the

23 documentation which I attached to my submission and

24 which, in point of fact, covers the Official Gazettes,

25 because I believe that an analysis of that

Page 12180

1 documentation could allow you to draw some important

2 conclusions as regards the fundamental premise on which

3 the document is based, and that would automatically

4 lead to the decrease in the number of requested

5 documentation. That is, one of our objections is

6 having been accused that we are not acting in good

7 faith. Now, we are saying that the question that

8 arises is not good faith but whether small people can

9 survive this Court in any way.

10 If we are mentioning the Security Council,

11 well, the intention of the Security Council was not to

12 conduct proceedings only for Croat crimes without

13 conducting proceedings for crimes against Croats, and I

14 think that some conclusions are beyond time and space.

15 In the former Yugoslavia, we were not allowed

16 and generations were not allowed to mention that during

17 World War II there was a civil war, and we had to learn

18 how we had defeated Germans. So one of our postulates

19 is that if the Court considered the objection that a

20 temporary criminal -- a civil war was raging, that that

21 particular fact would lead it to a completely different

22 point of view and, therefore, requests for completely

23 different documentation or, rather, a decrease in the

24 number and scope of documentation requested.

25 Four; if I look at this objection, that is,

Page 12181

1 the absence of good faith which is addressed to us, I

2 need to emphatically reject that objection. I am not

3 against the proposal that some of the named officials

4 be called again to be given a new deadline, but such

5 qualifications concerning good faith, obstruction, or

6 as my learned friend said, incestuous behaviour, I

7 think that is much too harsh, I should dare say,

8 because nobody has heeded to our objections for years.

9 That is, we, the Croats, cannot prove an elementary

10 fact, that from the Official Gazette it transpires that

11 a particular institution is called this or that. Our

12 objection is that we cannot agree as to what is the

13 army of BH, just as we cannot discuss what is north or

14 south or various chemical formula, and that creates a

15 feeling of impotence.

16 We are a small people and we cannot survive

17 this Tribunal, because some categorical definitions are

18 imposed on us and thereby collective guilt is imposed

19 on us by the selection of days, by the selection of

20 events --

21 JUDGE MAY: Mr. Tomic, I'm not going to allow

22 you to make --

23 MR. TOMIC: [Interpretation] I'm sorry. I

24 have concluded, Mr. President.

25 JUDGE MAY: Yes. Anything more you want to

Page 12182

1 say about the application which is made by the

2 Prosecutor?

3 MR. TOMIC: [Interpretation] No,

4 Mr. President. Thank you.

5 MR. NICE: Only two things I would

6 respectfully invite you to consider, particularly in

7 light of the fact that Mr. Tomic is here simply as a

8 lawyer and not in any other sense as a representative

9 of the Bosnian Croat side of the Federation.

10 Any orders that might be made should, in our

11 respectful submission, be directed directly to the

12 named and post-holding individuals, if the names and

13 posts and addresses are known, but for good order it

14 might be thought prudent to send copies of the orders

15 to both parts of the Federation to ensure that there is

16 no argument in due course that people weren't

17 identified and served.

18 Supplementary to that, might I respectfully

19 suggest, and I should have mentioned this this morning,

20 that any orders that the Chamber may decide to make

21 requesting people to attend to give an account of

22 documents will be most effective if the person

23 concerned is under a duty to provide, in advance, a

24 statement of proof or a summary of what his or her

25 position is on the documents, category by category,

Page 12183

1 with whether there are any such documents existing, if

2 they've been destroyed, to whom they've been

3 transferred, or why they are not being produced,

4 because otherwise it will simply be everything will be

5 coming fresh and it will take a long time for us to

6 analyse it, work it out, and to know whether we accept

7 the evidence that's been given or whether extensive

8 cross-examination would be invited, if we are allowed

9 to cross-examine, or through the Court. So I would

10 simply invite consideration be given to those matters.

11 Sorry for not having mentioned it this morning.

12 JUDGE BENNOUNA: [Interpretation] While you're

13 still standing, Mr. Nice, we are facing the following

14 situation: You are asking us that we address ourselves

15 to the Prime Minister of an entity -- let us call it

16 that, as Mr. Scott did, an entity, very well -- and

17 then this Prime Minister, as Mr. Ahmic has just told us

18 and as we see from the documents, this Prime Minister

19 will write to his Ministers, telling them to carry out

20 the orders from the Tribunal. Those Ministers will

21 answer that they have nothing to implement, that they

22 are not implementing them, or that there are no

23 documents.

24 In any event, two out of three have answered,

25 I think, the Minister of the Interior, the Minister of

Page 12184

1 Justice, and the third provided no response. So I

2 can't remember who that was.

3 And now you're asking us -- the Prime

4 Minister has been relieved of further action because

5 he's saying he has nothing, so now we only can address

6 those individuals directly. Perhaps it is better to

7 address God than them. But we would like to -- it is

8 better to address the Saint than God.

9 In any case, you have told us to address

10 ourselves directly to these people. And according to

11 the Blaskic jurisprudence, they can be subpoenaed

12 directly because they failed to obey their government

13 and they become private individuals. And you are

14 telling us now that before telling them to come you

15 told us they needed to be subpoenaed to come and

16 provide explanations, and you're also telling us that

17 perhaps we should ask them to provide written

18 submissions.

19 My question is the following: Before going

20 on to the subpoena, that is an order asking them to

21 come under penalty of sanctions, would it not be an

22 order -- a simple order of the Chamber which we can

23 address to them to come to provide an explanation here

24 without adding a subpoena, because a subpoena would

25 mean that they did not comply with a previous order, an

Page 12185

1 ordinary order, let me call it, an ordinary decision

2 addressed to them. So that is my question to you.

3 MR. NICE: I don't think we would challenge

4 the appropriateness of seeking their compliance by

5 attendance and/or by a written submission in advance of

6 attendance by an order in the first place, no, rather

7 than expressing it as a subpoena. And I think if I may

8 respectfully say so, Your Honours, an analysis of the

9 steps before an order with a penalty immediately

10 consequent on breach, your analysis of the appropriate

11 steps may well be correct. But in any event, one way

12 or another, if the individuals concerned are minded to

13 comply and obey, then the order will be effective. If

14 they decline to comply with the order, then it won't be

15 long before we'll be seeking a subpoena, and

16 everything's going to have to be -- in light of the

17 time scale, everything will have to be kept in hand, I

18 think.

19 JUDGE MAY: Thank you. We'll consider these

20 matters. We shall give our judgement or, rather, make

21 an order when Judge Robinson has returned and we are

22 fully composed as a Trial Chamber. Thank you.

23 --- Whereupon the ex parte hearing

24 adjourned at 4.15 p.m.

25