1 Thursday, 13th January, 2000
2 [Ex parte hearing-Prosecution]
3 [Closed session]
4 --- Upon commencing at 9.35 a.m.
13 page 12047 redacted – closed session
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1 [Open session]
2 JUDGE MAY: The first matter is this: That
3 we are constituted as a Chamber of two, Judge Robinson
4 being absent for urgent personal reasons, which I trust
5 has been communicated to the parties.
6 We cannot, therefore, make any decisions
7 sitting as a Chamber of two, and we can only do so as a
8 Chamber of three. However, given the urgency of
9 matters and the need to get on, we thought it right to
10 sit today in order to hear argument. We will not make
11 a decision until we are fully composed as a Chamber of
12 three, which will be sometime after the 25th of this
14 If there's any objection to that course, we
15 will hear it, but otherwise we propose to hear the
16 argument now. Judge Robinson will have access to all
17 materials about this hearing.
18 Mr. Rivkin.
19 MR. RIVKIN: We have no objections, Your
20 Honours. Indeed we were informed about this matter in
21 a timely manner. Thank you.
22 MR. NICE: We have no objection, of course.
23 JUDGE MAY: Very well. We will hear the
24 matter. Those matters, as I understand it, which we
25 are to consider are these: alleged non-compliance by
1 the Republic of Croatia with orders of the Trial
2 Chamber of the 22nd of January and the 4th of February
3 of last year, and then further requests by the
4 Prosecution of the 16th of April and the 19th of July
5 of last year.
6 We have been helpfully provided -- besides
7 all the voluminous materials, we've been helpfully
8 provided with a summary by the Prosecution of the
9 status of the litigation which sets out all the steps
10 in a very comprehensive form. I hope that the Republic
11 have that.
12 MR. CASEY: As a matter of fact, Your Honour,
13 we do not. I was as disappointed as you, Your Honour.
14 The Registrar's office has evidently adopted a new
15 policy of sending things to us by regular mail.
16 Consequently, the document I think you're referring to
17 arrived in our offices about 9.00 last night Hague
18 time, about 3.00 Washington time. It is quite
19 voluminous, and so we have not yet received the
21 JUDGE MAY: First of all, let me ask the
22 Registry about this.
23 [Trial Chamber confers with registrar]
24 JUDGE MAY: The document, say there's no
25 dispute about it, in case there is a misunderstanding,
1 the summary of the binding order is the document I'm
2 referring to.
3 MR. CASEY: Very well, Your Honour. Yes. We
4 were given that this morning. Evidently there is
5 another quite voluminous filing that was made on
6 December 22nd by the Prosecution summarising its view
7 of the various binding orders and the status of that,
8 and that is the document I was referring to. I was
9 mistaken. I thought that's the one you were referring
11 JUDGE MAY: Very well. We have, as I say,
12 the summary, helpfully setting out the matter. So the
13 parties may take it that we have all the materials.
14 It may be helpful, Mr. Nice, if in as
15 non-contentious a way as possible you could state the
16 Prosecution's position, what you're asking us to do
18 MR. NICE: First, the absent document. It's
19 unfortunate that the representatives of the State of
20 Croatia don't have that substantial document which, of
21 course, we rely on. My understanding, from the marks
22 on the document as filed, is that it was severed on the
23 embassy as well as on the law firm. So, therefore, if
24 that's right and it was served on the embassy here,
25 they should have been aware of it acting for the state
1 shortly after the time when it was served on the
3 The document does contain a number of matters
4 of detail and a number of exhibits, some of which may
5 be thought to be important.
6 JUDGE MAY: Well, it may be then that since
7 the respondents haven't had it, if you were to take us
8 to that document and briefly indicate the salient
10 MR. NICE: Well, maybe I can make a
11 preliminary point and indeed sit down. It's a new
12 policy of the Office of the Prosecutor that filings are
13 only ever to be signed by the Senior Trial Attorney.
14 That's somewhat unfair on the people who do the work
15 and doesn't help you know who has actually done the
16 drafting in this case. It won't come as any surprise
17 that the very considerable work that's been put into
18 this exercise has been done by Mr. Scott and having
19 opened the next application in a couple of sentences I
20 will hand over to him. So I will do that straight
22 The only thing I desire to make quite plain
23 now, because it hasn't been made plain, I think, to the
24 representatives of the State of Croatia before now, is
25 that in light of the history, we're asking the Chamber
1 not only to make orders which would be very short in
2 their return dates, but we're asking the Chamber
3 effectively to take over and to police the provision of
4 documents, particularly given the time scale. And by
5 that we would invite the Chamber, in due course, to
6 make orders that documents be provided to the Chamber
7 on particular dates and that there be attendance either
8 on that date or very shortly after by the
9 representatives of the state to check whether there has
10 been proper compliance and so that appropriate steps
11 can be taken if there has not been proper compliance.
12 JUDGE MAY: So you would ask for orders on
13 all these applications for documents to be supplied by
14 28 days or --
15 MR. NICE: Or even less because of the real
16 timetable problems we are suffering and for the period
17 of time these requests have been outstanding, to be
18 followed by timetabled return dates for appearance by
19 the parties so that the matter can be dealt with
20 immediately if provision of documents is anything other
21 than complete and adequate.
22 The only other point I was going to make is
23 that in the long document that apparently has not found
24 its way to the representatives of the State of Croatia,
25 there is some chapter and verse given to what we now
1 know of the involvement of both sides of Hunton and
2 Williams and the State of Croatia in the Kordic
3 defence. That starts at page 40 in the long document.
4 The Chamber will be pleased to know that I
5 have managed to release the underlying documents from
6 any sensitivity, and I'm going to be in a position to
7 provide them almost immediately with full translations
8 to the Defence in this case and, indeed, in due course
9 to the representatives of the State of Croatia. I
10 shan't serve them immediately on the Chamber for this
11 reason: that I will give those representing the
12 defendant, or both defendants, the opportunity to
13 indicate what passages, if anything, they would rather
14 were not seen by the Trial Judges, if there is any
15 sensitivity that they regard as attaching to any such
16 passages. But the material is now available to be
17 served, and therefore we're able to be a little bit
18 more explicit about it.
19 With those few opening observations, I'll
20 hand over to Mr. Scott.
21 MR. RIVKIN: Your Honour, if we may make one
22 point before going forward.
23 JUDGE MAY: Yes.
24 MR. RIVKIN: With respect to the service on
25 the embassy, indeed it is the practice of the registrar
1 to serve things on the embassy of Croatia here in The
2 Hague, as well as send things to us. Unfortunately,
3 when the service sheet indicates that it has also been
4 served upon us, they assume that that has been the case
5 and that therefore they need not also provide us with a
6 copy, and consequently they would have had no reason to
7 provide the document that we're talking about to us,
8 assuming that we had it. And, of course, we had no
9 idea that it existed and so did not know to ask for
11 With respect to compliance times, again we
12 believe the Court's law on this is quite clear.
13 Reasonable compliant times must be provided, and we
14 would obviously request the opportunity to discuss
16 JUDGE MAY: You can address us on that in due
18 Let us hear briefly, if we could, Mr. Scott,
19 so that the respondents can have an opportunity to deal
20 with the document. If you would just take us to the
21 salient parts.
22 MR. SCOTT: May it please the Court and
23 counsel, I'll try to be brief, Your Honour. I may be
24 slightly more detailed than I might otherwise have been
25 because of the service issue, and I'll try to flush out
1 our position on some of these issues so that counsel
2 can fully respond.
3 It is the case, Your Honour, that
4 considerable effort did go into the preparation of
5 these papers. I say that not expecting any particular
6 response from the Court, only to say that they are as
7 exhaustive and as detailed and as complete as we could
8 possibly make them. I certainly can't say anything
9 terribly new or different this morning but will try to
10 highlight to the Court our basic points and again flush
11 them out to some further extent for counsel.
12 Your Honour, it is our fundamental position
13 here before this Court, and I start with this point and
14 we will probably end with this point, that we come here
15 today, after three years of a continuous series of
16 events, all of which are closely related, in a
17 continuing series of efforts by the Prosecutor's office
18 and by, indeed, this Court, at least two separate
19 Chambers, to obtain Croatia's full and complete
20 compliance with outstanding orders, requests for
21 assistance, and other outstanding matters.
22 It is the Prosecutor's position, Your Honour,
23 that the status of these matters and Croatia's obvious
24 complete and continuing non-compliance is not a matter
25 of an isolated incident or instance here and there but
1 part of a strategy, if you will, part of a campaign, if
2 you will, to resist and delay and obstruct the work of
3 this Tribunal. We set our reasons for that out, our
4 basis for that, Your Honour, in great detail in our
5 papers, and again I'll touch on some of them.
6 Your Honour, we believe it is reasonable for
7 the Court to conclude, and the Prosecutor has
8 concluded, that there are, in fact, substantial
9 documents in existence in the Republic of Croatia that
10 are responsive to our outstanding request and, in fact,
11 indeed the Court's orders. Everything about these
12 investigations today, and this Tribunal is now some
13 years old and there has been some extensive amount of
14 investigation, everything points to the fact that these
15 organisations, these States, these entities, are modern
16 organisations with extensive record-keeping, with
17 extensive archives, with extensive document
18 collections. There is every reason to believe and no
19 reason to believe to the contrary that substantial
20 responsive documents directly relevant to the issues
21 before this Tribunal exist and should be turned over to
22 this Tribunal. To the extent, Your Honours, that some
23 documents are claimed to have been lost or in the
24 meantime destroyed, we submit, Your Honours, that
25 someone, some responsible senior official, should come
1 before this Court, under oath, and make a full
2 accounting concerning those documents.
3 I want to touch on, Your Honour, two
4 important issues in this case that underlie many of our
5 requests or many of our requests touch on to simply
6 flush out the basis for our requests and our concerns.
7 One of these, as the Court knows, is the whole issue of
8 international armed conflict, and indeed the Court
9 heard only yesterday that it is an issue in this case
10 that the Defence does not concede in the slightest,
11 putting the Prosecution in the position of having to
12 prove, as we believe we have and will, the existence of
13 such a conflict for purposes of sustaining our burden
14 of proof.
15 In that regard then, Your Honours, again
16 going back to 1997, the Prosecutor's office has
17 repeatedly sought documents from Croatia related to
18 this issue. It's the Prosecutor's position, Your
19 Honour, that there was, indeed, an international armed
20 conflict relevant to the issues in this case, that is,
21 the conflict in Central Bosnia between the Bosnian
22 Croats or Croats and the Bosniak or Muslim community
23 during the time from approximately late 1991 into early
24 1994. It's our position, Your Honour, that indeed the
25 most senior officials of the Zagreb government,
1 including former President Tudjman and Defence Minister
2 Susak, were extensively involved with the Bosnian Croat
3 leadership, including such people as Mate Boban and, in
4 fact, indeed, at least one of the accused, Mr. Kordic.
5 This Court has heard to date, since the trial
6 started on the 12th of April, substantial and extensive
7 evidence of this, of Croatia's close relationship and
8 involvement in these matters. Our papers set forth a
9 number of the witnesses who have touched on these
10 matters. I won't take the time to go through it here.
11 We also cite a number of the more directly-relevant
12 exhibits that have come before the Court touching on
13 this. The Court will remember, even in the past
14 several weeks, some of the directly pertinent testimony
15 of such people as Ole Brix Andersen and others who have
16 come before this Court and said, in no uncertain terms,
17 the government of Croatia, the forces of the HV, the
18 Croatian army, the military forces, were involved in
19 Bosnia, including Central Bosnia, and it is, we
20 believe, untenable, Your Honour, for Croatia to have
21 come before this Court for the past three years and
22 denied that involvement. We do not accept that
24 In particular, Your Honour, at pages 17, 18,
25 and 19 of our papers, we've spent specific incidents
1 and examples of such involvement, including, for
2 instance -- and I'm just going to cite a couple, Your
3 Honour -- an order on the 12th of April, 1992, from a
4 very senior Croatian army officer, Janko Bobetko, the
5 commander of all HV -- not HVO -- all HV units on the,
6 quote, "southern front" ordering that all HV insignia
7 are to be removed from the fighters, that such fighters
8 will present themselves as volunteer defenders of their
10 On the 5th of October, 1992, Colonel Blaskic
11 issued a written order that all HV officers in the HVO
12 units be identified.
13 On the 26th of November, 1992, the HVO deputy
14 commander in Zenica, and that is right in Central
15 Bosnia, right in the middle of this case, ordered that
16 HV members present in this region and wearing HV
17 insignia must be warned to take them off.
18 Again as late as the 17th of February, 1994,
19 the U.N. Secretary-General, no less, sends a letter to
20 the Security Council concerning the presence of the
21 Croatian army in Bosnia and the removal, the policy or
22 strategy of removing their HV insignia.
23 This Court has heard sworn testimony from
24 Witness A that Croatian army symbols and insignia were
25 seen on troops and equipment in Central Bosnia in early
1 '93 and that Dario Kordic, as a senior official of the
2 Bosnia-Herzegovinian arm of the HDZ party and
3 vice-president of Herceg-Bosna, often travelled to
4 Croatian and was the superior persons who were directly
5 involved in bringing weapons from Croatian. A still
6 confidential witness, Your Honour, to come in the
7 future is expected to testify to extensive contact
8 between the Bosnian-Croat leadership and senior
9 officials of the Zagreb government, including President
11 Another specific example, and I say this
12 again, Your Honour, because Croatia has come for three
13 years and said, "We have no records of this. We have
14 no records of any meetings. We have no records that
15 Mate Boban was in Zagreb meeting with these officials.
16 We have no records that Dario Kordic ever came to
17 Zagreb and met with President Tudjman or Defence
18 Minister Susak." Just as an example, trial
19 Exhibit Z2787 is a photograph of a meeting of a
20 Bosnian-Croat delegation including Kordic and Valenta
21 with President Tudjman in June of 1991.
22 JUDGE MAY: I think we've got this point.
23 MR. SCOTT: All right.
24 JUDGE MAY: Mr. Scott, if you could take us
25 on, yes.
1 MR. SCOTT: I will, Your Honour, quickly.
2 Suffice it to say, and again, Your Honour, we
3 set this out in great detail continuing on, and just
4 for the record for the Court and counsel, continuing on
5 to pages 20 to 22 or so of our brief, detailed accounts
6 in support of our position. We think, Your Honour, it
7 is untenable for Croatia to come before the Court and
8 say that relevant documents don't exist.
9 As a further specific issue, Your Honour, one
10 particular event that I'd say probably most people in
11 this Tribunal and certainly this Court is very familiar
12 with at this point is the whole issue of the atrocities
13 in Ahmici. Many of our requests, again dating to three
14 years ago, and I say that, Your Honour, because the
15 Court will recall now from the newspapers that Judge
16 McDonald, in January of 1997, almost to the day, I
17 think the 15th it will be three years from the
18 anniversary date, issued a subpoena to this very same
19 Croatia for many of the very same documents that we
20 have never received, including the documents concerning
22 As recently as May of this year, Your Honour,
23 Croatia filed a response that said it has no documents
24 about Ahmici, whether produced by its own agents, that
25 is --
1 MR. CASEY: Your Honour, it's my
2 understanding that that particular response was,
3 indeed, issued in closed session, and because of the
4 state's concerns, and I would prefer it not be referred
5 to in open court.
6 JUDGE MAY: We know what the response was.
7 MR. SCOTT: With that in mind, Your Honour,
8 it is again incredible to the Prosecution, and we ask
9 the Court to come to a similar conclusion, that there
10 would be no such documents.
11 The record is clear, Your Honour, there was
12 extensive public -- international public outcry about
13 these events in Ahmici by virtually every western
14 government, by the United Nations, by the European
15 Union, et cetera, et cetera, that came directly to bear
16 on President Tudjman and the Zagreb government. It
17 is --
18 JUDGE MAY: So we can discuss this, it may be
19 sensible to go into closed session for a moment.
20 MR. SCOTT: We can go into private session,
21 Your Honour, I believe.
22 JUDGE MAY: Whatever it is, yes. Private
23 session will do, yes.
24 [Private session]
13 page 12065 redacted – private session
16 [Open session]
17 MR. SCOTT: With that further background in
18 mind, Your Honour, let me touch upon the status of the
19 outstanding matters and the pending applications.
20 Again, Your Honour, as touched on already,
21 and I'll try not to say this more than again once or
22 twice, but it is of paramount importance for this Court
23 not only to hear but fully understand and appreciate
24 that these events are part of an unbroken string going
25 to January of 1997. Croatia does not appear before
1 this Court for the first time on a first request for
2 these documents but comes here some three years later
3 to the day never having produced many of the documents
5 In fact, even at that time, back in January
6 of 1997, in February of 1997, in hearings, when
7 Croatia's representative disputed the power of the
8 Tribunal at that time to issue a subpoena, nonetheless,
9 at the urging of Judge McDonald, Croatia's
10 representative at that time undertook and made a
11 personal commitment -- made a commitment on behalf of
12 the Croatian government that indeed notwithstanding the
13 technical legal issues about a subpoena or what have
14 you, made a commitment to this Tribunal that those
15 documents would be produced, and, in fact, in reliance
16 on that commitment or to further record that
17 commitment, the Office of the Prosecutor in the Blaskic
18 case, Mr. Harmon, on that same day, drafted a request
19 for assistance, a Rule 29 request asking for the same
20 documents not by subpoena, which was disputed by
21 Croatia, but by a Rule 29 request which they stood in
22 court in front of Judge McDonald and said they would
23 honour and they've never done so.
24 Since we're in public session, Your Honour, I
25 will not go into detail about some of the additional
1 history in the Blaskic case. The Court has our papers
2 and the Court knows and Croatia knows the severe
3 findings that the Blaskic hearing officer made
4 concerning the status of Croatia's compliance in June
5 of 1998, in the most severe and unqualified terms.
6 To make the record clear, Your Honour, unless
7 Croatia say that we're suggesting otherwise, it is the
8 case, and we have always said that after the very
9 severe findings by the Blaskic Chamber in June of 1998,
10 which again this Court has available to it in detail,
11 Croatia did make then a series of some productions
12 between that time and the end of the Blaskic evidence.
13 It's our view and the Court has heard this already;
14 that notwithstanding the production of paper, that
15 Croatia was not and never was in compliance with the
16 orders in that case. It is not simply compliance, Your
17 Honour, to produce a volume of material, most of which
18 is completely non-responsive and irrelevant. It's no
19 secret, Your Honour. I could show up in this Court
20 this afternoon and deliver boxes of material, most of
21 which would be worthless.
22 There have been productions by Croatia. We
23 don't want to suggest that there hasn't been some paper
24 presented to the Prosecutor's Officer. It's our
25 position, Your Honour -- we've assessed that.
1 Mr. Harmon's assessed it. Most of it was completely
2 unresponsive, most of it completely irrelevant.
3 Generously speaking, Your Honour, and I'll
4 ask Mr. Harmon to conclude, but certainly probably the
5 total material was probably not more than a small box,
6 perhaps a printing paper -- Xerox box of material.
7 Mr. Harmon confirms that that's correct. A very small
8 amount of material, given the circumstances of this
9 case and over the time period that these orders have
10 been outstanding.
11 In fact, Your Honour, the net result of
12 Croatia's position, unfortunately and sadly, was
13 through a continuous process of promising compliance,
14 coming before this Court, coming before the Blaskic
15 Chamber, Judge Jorda, now President Jorda, and
16 professing good faith, professing cooperation, in fact
17 producing almost nothing, Croatia succeeded, and it's
18 my view, Your Honour, and I submit to the Court it's
19 not by accident, Croatia succeeded in out-lasting the
20 taking of evidence in the Blaskic case. So that any
21 evidence produced, and in reality no further evidence
22 produced, was too late to put before the Blaskic Trial
24 I submit, Your Honour, I'll be so bold to
25 submit, if the Court will allow me, that unless the
1 Court takes stern measures in this case, we fear, the
2 Prosecution fears the same will be true here, and to
3 the extent any documents produced by Croatia, they will
4 be too late.
5 On the 5th of June, 1998, Your Honour, we
6 served, the Prosecutor's Office served a formal request
7 for assistance to Croatia concerning information for
8 Dario Kordic and Mario Cerkez. 5th of June 1998, some
9 year and a half ago. No documents ever produced.
10 On the 24th of July, 1998, the Prosecutor's
11 Office applied for a binding order essentially to step
12 into the shoes of the Blaskic order as it then stood.
13 We believed it important, Your Honour, because of
14 concerns in the Blaskic case and because the Kordic
15 case, of course, stands on its own feet in terms of a
16 separate record, to make the same request and have the
17 same order issued in this case, for the very reason
18 that in the unfortunate scenario, which sadly came
19 true, that Croatia would outlast, if you will, the
20 Blaskic trial, the Kordic team would take the baton and
21 continue our efforts to obtain these documents. That
22 is now some almost 18 months ago. No documents
24 Indeed, I'll just mention in passing --
25 there's a longer quote in our papers, but I'll just
1 mention that when this matter was still before the
2 prior Trial Chamber, Judge Jorda presiding, on the
3 2nd of September 1998, Judge Jorda, closely familiar
4 with the history in the Blaskic case made this
5 statement on the record: "I appreciate the fact that
6 the Prosecutor has already asked for us, and I know I'm
7 speaking for my colleagues and for the Tribunal as a
8 whole, I'm appreciative of the fact that the country or
9 countries covered by bindings orders will not say that
10 they can escape from orders, and the orders of the
11 Prosecution or Defence has gone about things too late
12 in order to ask for production, and the binding orders
13 here will be issued in the Kordic/Cerkez case," he's
14 referring to, "from the very start of the proceedings,
15 and we intend to make sure that those binding orders
16 are respected specifically in respect of the country
17 covered by the first binding order; that is, Croatia."
18 Let me make the general point, Your Honour,
19 to the extent that on any of these matters, and really
20 this touches on more than one application or one order,
21 to the extent that national security claims are made,
22 let me submit to the Court that in our collective view
23 and experience as a Prosecution team, including
24 Mr. Harmon, generic claims or general abstract claims
25 of alleged national security are far too easy to make,
1 and in many, many instances those claims cannot, in
2 fact, withstand scrutiny, and there's simply no
3 legitimate basis for such a claim, and we strongly
4 suspect that at least in substantial part that would be
5 true of any such claims asserted here.
6 Let me give the Court a specific example in
7 the Blaskic case. In the Blaskic case there were
8 continuing protests that some of the requests were
9 calling for highly sensitive information that touched
10 on national security issues. Ultimately when some of
11 these documents were produced, they were gasoline
12 receipts. They were gasoline receipts. Highly
13 sensitive information.
14 Further, Your Honours, even -- and I stress
15 the word "even" -- where there is some legitimate basis
16 or aspect of a national security concern, it is
17 likewise our experience, and I suspect the Court's
18 experience in its local or domestic jurisdictions as
19 well, it is likewise our experience and assessment that
20 such concerns can very often be addressed in such a way
21 that the documents or information itself can be
22 provided in a way that does no significant injury to
23 any legitimate security interest. The information can
24 be postured in such a way, protective orders can be
25 entered in such a way that assuming that there is any
1 legitimate interest, that interest be protected while
2 making most if not all the information available to the
4 In connection with our application dated the
5 25th of January, 1999, Your Honour, and this Court's 4
6 February order for production, we had 38 paragraphs of
7 requests, after litigation in the Appeals Chamber,
8 adverse to Croatia. Some eight months after this
9 court's order, Croatia finally produced three
10 documents. So out of 38 paragraphs, they had documents
11 responsive to only one out of 38 paragraphs and then
12 that one paragraph they produced three documents. We
13 don't accept that that's full compliance.
14 We then, Your Honour, on the 16th of April,
15 1999, applied for an order, which is pending at this
16 time. There were approximately 41 numbered
17 paragraphs. Paragraphs 1 through 39 asked for
18 documents and information directly related between the
19 defendant Kordic and 12 identified persons, all of whom
20 were significant political/military leaders in Croatia
21 and Herceg-Bosna during the time in question. We
22 believe those are fair, sufficiently specify a specific
23 and relevant request.
24 Paragraphs 40 and 41 request documents
25 concerning awards, medals, commendations, et cetera,
1 giving to Mr. Kordic by the State of Croatia and/or the
2 Herceg-Bosna or HVO government, and we know, Your
3 Honour, or have reason to believe that such awards were
4 made, but no documents have ever been produced on that
6 I would point out to the Court that on that
7 particular order, there was a parallel order --
8 application to the Federation of Bosnia-Herzegovina for
9 a similar order, well, identical order asking for the
10 same 41 numbered paragraphs, and this Court found, on
11 1st of June, 1999, that the Prosecutor's request were,
12 "Specific, relevant, and not unduly onerous." We
13 submit, Your Honour, that that same finding should be
14 made here. The requests are identical.
15 Let me briefly touch on that Croatia has
16 taken the position, in response to that particular
17 application, that some, that some of the requests are
18 repetitive or asked again for some information on
19 requests not previously granted. That is literally
20 true as to some particular aspects of some of the
21 requests, but the requests are far from identical.
22 They were further modified and further, if you will,
23 developed, that they are in many ways different.
24 Further, Your Honour, we would take the
25 position that had Croatia, in fact, made substantial
1 good faith productions in response to such prior
2 requests or even other similar requests, they might
3 come to this Court on stronger ground, but certainly
4 Croatia can claim no prejudice whatsoever when they've
5 never produced a document in any of them on these
7 Finally, Your Honour, on the 19th of July,
8 and this is the last pending application, we asked
9 for -- we again applied for a number of requests. We
10 candidly indicate, Your Honour, that we know that there
11 are, by paragraph numbers, a large number of requests.
12 As we said in our papers and I will say again now, Your
13 Honour, we will ask the Court, it would be instinctive,
14 if the Court will allow me to say, it would be
15 instinctive for the Court to say that's an awful lot of
16 requests, surely too many. We believe it is not, Your
17 Honour, and our application should not be judged merely
18 by the number of paragraphs. In fact, each paragraph
19 is limited to directly relevant issues. We have
20 annexed a set of topics so that it doesn't encompass
21 everything. We do not want Dario Kordic's lunch
22 receipts, but touch only on issues that are relevant to
23 the issues before this Trial Chamber about the conflict
24 in Central Bosnia, about the persecution of Muslims,
25 about the attacks on villages, about killings, all
1 directly relevant to the issues before this Chamber.
2 I think in one response that Croatia made to
3 the Court's scheduling order, if I read it correctly,
4 they largely concede, they may have other objections,
5 but they largely concede that the requests themselves
6 are generally specific and relevant.
7 I think that concludes that part of the
8 status of our applications, Your Honour. The Court
9 must have and in the interests of time, Your Honour, I
10 don't know what might have been more efficient, not to
11 go through the chart, because I thought some of the
12 comments to add to the chart rather than simply -- when
13 I say the chart, I mean the table presented -- I hope
14 the Court finds that helpful and the history I've just
15 given to the Court is largely laid out, at least
16 step-by-step without some of the detail, in the table,
17 but I've attempted to further state our position on
18 these matters.
19 JUDGE MAY: Yes. We have that table.
20 MR. SCOTT: Your Honour, let me just say, I
21 know --
22 JUDGE MAY: Judge Bennouna has a point.
23 MR. SCOTT: Yes.
24 JUDGE BENNOUNA: [Interpretation] Mr. Scott,
25 you have told us that you are requesting that a senior
1 official representing Croatia, a member of the
2 government or not, in any event, a member of the senior
3 administration of Croatia should be present, should
4 appear to directly respond as an agent of Croatia. It
5 is normal for a state to be represented by its agent
6 and by legal counsel. Have you made such a request to
7 Croatia and have you been in touch with the government
8 of Croatia already, asking them to designate an
9 appropriate interlocutor in order to discuss with that
10 interlocutor the request of cooperation with the
11 International Tribunal for the provision of information
12 and documents within the framework of a court case,
13 because, after all, in relations with a state, that
14 would appear to be normal conduct throughout the world;
15 that is, contacts with the senior representative of the
16 state when one could ask them to designate an
17 interlocutor who could then discuss those matters with
18 you. Have you done that within the Office of the
19 Prosecutor? If you haven't, do you wish to make a
20 precise request to that effect or are you requiring a
21 ruling to that effect on the part of our Chamber? That
22 is my question.
23 MR. SCOTT: The correct answer -- Your
24 Honour, I thank you and a comment, the short answer is
25 no, we have not done that, at least not recently. I
1 think, in fact, over the three years there's been
2 extensive consultation. I am sure that if Mr. Harmon
3 stood up, Mr. Harmon could give you about lengthy
4 discussions -- about discussions and conversations,
5 exchange of correspond with the representatives of the
6 government of Croatia, to shorten some requests, to
7 modify some requests, to make some requests more
8 specific. So, yes, I would say on behalf of the
9 Prosecution office as a whole, since 1997, I would say
10 yes, it has happened, Your Honour. Not recently on
11 behalf of the Kordic specific team, and for the very
12 reason, Your Honour, that given the history in this
13 case of three years, of what we view as non-compliance,
14 did not appear to us it was likely to be productive.
15 We're happy to pursue that, Your Honour, to the extent
16 the Court would wish us to, if it would be productive.
17 But it's our judgement it would not be productive, Your
19 When orders are issued by this Court, which
20 have been, it seems to us that it is the responsibility
21 of the party receiving the order to fully comply with
22 the Court's order and not up to the Prosecutor to try
23 to talk them into it. There are outstanding orders to
24 them, not subject to us negotiating with them further.
25 And I would also further respond if they
1 wanted to have such a dialogue, Your Honour, they've
2 known where we were for the past three years and the
3 past 18 months, and there has never been a phone call,
4 Your Honour. And, in fact, all the voluntary requests
5 for assistance that we've made, and I pointed out some
6 a few minutes ago, dating a year and a half, two years
7 ago, voluntary requests, not with judicial orders
8 entered, were never responded to. We never got a
9 response; no documents, no letter, just nothing.
10 So, Your Honour, sadly I tell the Court our
11 position is that we don't think, absent this Court's
12 direction, absent this Court's intervention, we don't
13 think such a dialogue would be productive. Thank you.
14 JUDGE BENNOUNA: [Interpretation] The second
15 part of my question, if I understand you well, you're
16 formally asking our Chamber to order Croatia, the
17 Croatian State, to designate a representative, a senior
18 official, to express himself concerning the existence
19 or nonexistence of those documents, and efforts made
20 within the state administration to find them, in the
21 case that they do not exist, and to tell us about it.
22 MR. SCOTT: Yes, Your Honour. The Court is
23 obviously correct. The Court may recall that in a
24 similar hearing some time ago with another party,
25 Mr. Nice had stated, and I think the same statement
1 applies equally here, it is all too easy for a legal --
2 a lawyer representing a party or a client to come and
3 make generic claims or positions; that because the
4 lawyer himself is not in a position to know the
5 details, the lawyer himself is not perhaps a witness,
6 is not put under oath, there simply is not a great deal
7 of force, unfortunately, in some situations, and in the
8 circumstances, we submit, here, to continue general
9 statements or assurances of production or the lack of
11 When, however, a response -- and I think this
12 is true again from our experience, Your Honour, and I
13 can say, having practised both in the civil and
14 criminal arenas for the past 20 years, that when a
15 responsible party has to raise his or her hand and give
16 some certification subject to the penalties of perjury
17 or contempt, it has a way of focusing one's attention,
18 and when it turns out that those statements or those
19 certifications are not entirely true, some consequences
20 can be visited upon that person.
21 In our experience, Your Honour, in these
22 governments the people who are probably the most
23 directly related to these issues typically seem to be
24 the Ministers of Defence and Justice, so if the Court
25 is asking me to, if you will, nominate some possible
1 officials, those are the first two who would come to
3 Your Honour, I'm going to cut through a
4 number of other things here. Papers speak for
6 JUDGE MAY: I think that's right. You make,
7 in the 22nd of December, observations, I shall put it,
8 rather than "allegations", mainly concerned with
9 Mr. Rivkin. Since he's here and able, if necessary, to
10 deal with them, we can read them.
11 MR. SCOTT: Yes, Your Honour.
12 JUDGE MAY: Partly they depend on newspaper
13 reports --
14 MR. SCOTT: Yes.
15 JUDGE MAY: -- which we can read at paragraph
16 77 onwards, and 85. What is this paper, The
18 MR. SCOTT: It is one of the primary
19 papers -- a nationally-distributed paper in Croatia,
20 perhaps one of the one or two -- my understanding, one
21 of the top two or three papers in the country. I make
22 no general claims of credit worthiness of the media in
23 general, but only to say that these are
24 nationally-reputable papers in Croatia. I say "these."
25 The papers that are the subject of the -- or the
1 producers of the articles.
2 They purport to rely, Your Honour, not simply
3 on what might be called hearsay or rumour but upon,
4 however they may have gotten them -- and I don't
5 speculate on that -- but on the nature of
6 contemporaneous records of meetings and minutes of
7 meetings and memoranda supporting the statements made.
8 I had not, Your Honour, very specifically in
9 preparing my comments yesterday and today, not intended
10 to go in any great detail into those aspects, because
11 they are in the papers. I had understood and was
12 operating on the assumption that these papers had, in
13 fact, been served upon Croatia some time ago. I regret
14 they haven't been or they apparently weren't. There is
15 apparently no reason to believe that they were not
16 served locally on the embassy on or about December
17 22nd. It's unfortunate as to why they have not perhaps
18 been communicated more broadly.
19 Let me just say, Your Honour, that, well, if
20 the counsel -- I appreciate the Court's concerns, and
21 counsel certainly should have a chance to respond. It
22 may be that if counsel is directed, as the Court
23 already has, to those pages of our papers that they now
24 have and have had at least for some minutes, perhaps
25 they would be in a position to further respond. I
1 don't think I would like to characterise it too --
2 MR. RIVKIN: Forgive me, Your Honour. We do
3 not have those papers. What we have is a summary that
4 was given to us as we walked into the courtroom. We do
5 not have those papers that my colleague is referring
7 And as to the service on the embassy, I
8 believe this issue was already addressed earlier by my
10 JUDGE MAY: I'm told by the registrar that
11 this document was sent on the 28th of December to
12 Mr. Rivkin. Now, whether that is a change that is due
13 to a change in the firm, I don't know.
14 MR. RIVKIN: It is not. If I might clarify,
15 Your Honour. My secretary at my old law firm
16 telephoned us as soon as she received it, so it has
17 nothing to do with change in law firms. That document
18 was physically received in Washington at 3.00 p.m.
19 yesterday when all of us were here sitting and
20 preparing for the hearing this morning.
21 In order to vitiate those problems, perhaps
22 we can ask the Prosecutor, as a courtesy in the future,
23 to inform us at least that such a document has been
24 transmitted so we can make appropriate efforts to
25 obtain it. The Prosecutor certainly has faxed us a
1 number of letters in the last few days and knows very
2 well how to reach us. I don't want to impugn in any
3 way the Prosecutor's behaviour in this matter; nor, on
4 the other hand, is it fair to in any way suggest or
5 insinuate that we somehow deliberately avoided
6 receiving this document.
7 Again, as to the embassy, whenever -- well, I
8 don't want to belabour this point, but it would be
9 unnatural for the embassy to be faxing us a 200-page
10 document that the service sheet indicates was sent to
11 us directly.
12 JUDGE MAY: Mr. Rivkin, you, for your part,
13 perhaps can tell the embassy to let you know if any
14 documents arrive.
15 MR. RIVKIN: I will do so in the future, and
16 I will-- but again, just to give you an idea, Your
17 Honour, for example, in a different proceeding, in a
18 case of ICJ, precisely because the documents are only
19 served at the embassy because of an indication where
20 the agent is located, the embassy immediately transmits
21 those documents to us. Here, for over two years, we've
22 always been served directly, and it's very regrettable
23 that there was a change regarding the way the registrar
24 transmits though documents. We'll discuss it with them
25 as well. But I would like to suggest very briefly that
1 it's rather unfair for us to try to read those pages
2 now and try to respond to them, but I would certainly
3 like to have an opportunity to do so in the future.
4 JUDGE MAY: What I'm going to suggest is
5 this: that the relevant paragraphs can be pointed out
6 to you now. We will hear the rest of Mr. Scott's
7 submissions. We will then adjourn for our usual break
8 of half an hour. You'll have the opportunity of
9 reading the relevant paragraphs -- there are not
10 many -- and we'll hear your response. It will be a
11 matter for you, how you put it. Of course, if you want
12 more time, we will hear it, but it may be that these
13 are matters you can deal with, at least in outline
14 form, fairly briefly.
15 MR. RIVKIN: Thank you, Your Honour. I shall
16 try to do so.
17 JUDGE MAY: The relevant paragraphs, as far
18 as I can see, are paragraphs 77 and 78 and paragraph
19 85, which deal with two articles which I referred to
20 from the newspaper, and there is reference to a meeting
21 in which you were involved, it's alleged, at paragraphs
22 95 onwards. I think that covers --
23 MR. SCOTT: I think the Court is absolutely
25 Your Honour, let me just respond to this last
1 issue only briefly.
2 First of all, let me assure that on this
3 particular item, on this particular item, there is no
4 insinuation of bad faith by counsel in trying to avoid
5 the service of these papers. I'm not suggesting that.
6 I would point out to the Court that in
7 correspondence received, by all accounts, by counsel
8 and dated the 20th of December, there is reference to
9 these issues being raised, the letter signed by
10 Mr. Nice and faxed to counsel, which puts out a number
11 of these same issues which the Court was copied on, I
12 believe. Yes.
13 Also on the 11th of January, there was a
14 further letter also copied to the Court, by all
15 indications received by counsel -- we have a fax
16 confirmation -- again setting out a number of at least
17 some of these issues and stating specifically -- and
18 this is my last point on this, Your Honour -- but
19 stating specifically, "In reference to the last part of
20 your 30 December letter, we are taken to understand
21 that you've received all of the recent pleadings and
22 correspondence about the binding order matter with
23 Croatia, although we were not aware that you had
24 changed law firms. If you have any questions whether
25 all of such pleadings or correspondence have reached
1 you, please let us know." This is the first we've
2 heard this morning of any problem. We'll certainly try
3 to be fair in our dealings in the future, as we always
4 have been, Your Honour, although I must say we don't
5 undertake any obligations to act on behalf or carry out
6 the responsibilities of the Croatian embassy.
7 Finally, Your Honour, we go on in our papers,
8 from approximately page 31 to approximately page 40 or
9 so, generally with an account of Croatia's lack of
10 cooperation with this Tribunal for the last three
11 years. Again, in the interests of time, I can give the
12 Court assurance I'm not going to go through that in
14 Suffice it to say, Your Honour, these are not
15 the protests of one Mr. Scott or one trial team.
16 Numerous organisations, institutions, responsible
17 officials, are on record for having concluded that
18 Croatia has not, in fact, been responsible or acted
19 properly towards this Tribunal in the last several
20 years. The Council of Europe has made such a finding
21 in April of this year -- excuse me -- April of 1999.
22 President McDonald sent a report to the Security
23 Council on this issue. The Prosecutor has sent a
24 report to the Security Council on this issue. The
25 annual report of this institution, an official U.N.
1 document speaking for this institution, has stated very
2 clearly Croatia's lack of cooperation with this
4 Again, Your Honour, this non-compliance with
5 binding orders is part of a larger picture to obstruct
6 and delay and interfere with the ability of this
7 institution to carry out its international mandate.
8 JUDGE MAY: There's one argument for a
9 position where a party is known to have a document and
10 the other party asks for it, and one way or another a
11 court can be satisfied that there is a refusal to
12 produce a particular document in litigation. But if
13 the party says there are no such documents, what then
14 are the court's powers or, specifically, what are this
15 Court's powers?
16 MR. SCOTT: I think the answer to that, Your
17 Honour, is similar to the answer that we proposed to
18 the Court again in another proceeding with another
19 entity, which the Court is familiar with, and in
20 reference to my response to Judge Bennouna a few
21 minutes ago. I agree that always presents a difficult
22 situation to any court of any jurisdiction. I think
23 the only steps that can be taken, Your Honour, in that
24 situation is again to require some senior official, not
25 some mere namesake or token but someone who is in a
1 responsible position to have this information, to come
2 before the Court and make some such certification.
3 That's all we can -- the Court is absolutely right.
4 Ultimately, that's all you can do, and if that official
5 is either unintentionally wrong or intentionally
6 misleading the Court, then if that can be later
7 established, then the Court is in a position to do
8 something about it.
9 There may also be the question, Your Honour,
10 of -- and we just raise this again because Mr. Nice
11 raised it in a prior matter, prior hearing -- there may
12 be some questions of certain adverse inferences being
13 drawn from the lack of production. If a state closely
14 identified with a party, with an accused before this
15 Tribunal, is in a position to produce documents and
16 refuses or fails to do so, I think the Court should at
17 least entertain the notion -- we certainly expect no
18 ruling this morning, but we ask the Court -- we think
19 all of us should entertain the notion that it may be
20 appropriate, and I think this was discussed and perhaps
21 implemented in the Blaskic Chamber -- maybe it was only
22 discussed -- but that is that some inference then be
23 drawn. I realise there is some -- the question will be
24 asked, "How can the lack of cooperation or lack of
25 compliance by one entity be laid at the feet of another
1 party?" I recognise -- we recognise the issue, Your
3 However, when you have -- as we submit is
4 true here for reasons the Court has heard before and
5 which Mr. Nice may touch on further at a further
6 opportunity, when there is such a complete, in our
7 view, identification between the state which supports a
8 Defence, which pays for a Defence, which is intimately
9 related in the conduct of a Defence, has information
10 documents available to it and refuses to produce them,
11 there may be a situation that negative inferences can
12 and should be drawn.
13 JUDGE MAY: You suggest that we summon
15 MR. SCOTT: Yes, Your Honour. I think,
16 again, that was another part of the Court's question,
17 and I apologise for not answering.
18 JUDGE MAY: No. What I want to ask you is
19 simply what are our powers to do that?
20 MR. SCOTT: Your Honour, I think under the
21 Blaskic subpoena decision, the Appeals Chamber in
22 October of 1997, the procedure was laid out that the
23 Court can take steps to put the proceedings in such a
24 posture that if the state continues to be ordered to
25 comply, this Chamber -- this Tribunal can then order
1 the state to identify such specific senior officials,
2 that the authorities of that state not only identify
3 such officials but then further direct them to comply.
4 And that if such compliance is then not forthcoming,
5 essentially what the Tribunal jurisprudence says, as I
6 understand it, Your Honour, is that the Court is then
7 in a position to subpoena those individuals in their
8 personal or individual capacity. That's what we
9 would -- that's where we think we would be on that,
10 Your Honour, in terms of --
11 JUDGE MAY: If you're referring to the
12 Blaskic decision, it would be helpful to have the
14 MR. SCOTT: Your Honour, I have to admit I
15 have not read it recently, and I can do that. I will
16 do it, but --
17 JUDGE MAY: You can deal with it after the
18 break. Just refer us to the paragraph that you're
19 relying on, please.
20 JUDGE BENNOUNA: [Interpretation] Mr. Scott,
21 please try to look at the Blaskic case. But if my
22 memory serves me well, I do not think that is precisely
23 what you are telling us.
24 If my memory serves me well, it is a case,
25 when an order is addressed to a state to carry out the
1 decision of the Tribunal, that in that state an
2 individual receives an order to do something and fails
3 to do that, it means that the decision or, rather, an
4 order is addressed to that state and in that state a
5 specific individual who receives instructions to
6 execute something does not do that, at that moment that
7 individual, that person, then is reduced from the
8 position of a representative of a state to the position
9 of a private person, and the Tribunal then can serve
10 the subpoena, and then in an injunction a subpoena may
11 be issued, but only in his capacity as a private
12 person. And if my memory serves me well, and under the
13 reservation that perhaps I'm wrong, this is what
14 happened in the Blaskic case.
15 At the moment, we're not in that particular
16 position. I believe the state needs to be asked
17 expressly to designate a valid interlocutor on behalf
18 of the state to explain which are the steps which then
19 led them to conclude that there were no documents
21 Somebody says 3,000 documents or something.
22 That is what -- that is the legal representative of
23 Croatia says that not one of these documents exists,
24 but Croatia tells us -- that is, Croatia makes a
25 distinction between documents it produces itself and
1 documents which come from some other source. And for
2 the latter, for the documents that come from the other
3 source, it says that it cannot say whether it has them
4 or it doesn't have them, and that is yet another nuance
5 in the position of Croatia, because to say or not to
6 say whether such documents exist or do not would be a
7 national state secret.
8 I believe, and I'm stating, and I speak only
9 in my own name, that I believe such a position is
10 unacceptable. One cannot say that because to turn over
11 the text one has to say -- one cannot say that even
12 saying whether one has or doesn't have a document could
13 also be a secret. That is also unacceptable, and I
14 think this is the first stage. I am speaking, as I
15 said, in my own name, but we shall consult us in the
16 Chamber because this is a point which indeed needs to
17 be clarified.
18 And then the third element concerning the --
19 concerning Croatia's position. It says that if one is
20 to verify whether there are any documents which
21 constitute a national secret, one needs first to know
22 what is -- and this is also a way of non-responding,
23 that it needs to know which are these documents which
24 were mentioned in the Blaskic case; that is, which are
25 acceptable, which are relevant, and so on and so
2 Now, it seems to me that from the requests
3 which the Prosecutor said that Croatia indeed had all
4 the time available to determine what is and what is not
5 a national secret. And if we can use the existing
6 text, perhaps we could say that the first element is
7 that there is no response because something is not a
8 secret but one has to determine what is a secret or,
9 rather, the objection on the national secret has to be
10 developed today, and we have to hear that from
11 Croatia's representative.
12 Now, having said that, evidently it is
13 necessary for Croatia's representative or some
14 representative of Croatia to tell us about this and not
15 only a law firm which will be here and which will give
16 us some legal thesis about the responsibility, but a
17 representative of Croatia to tell us that.
18 JUDGE MAY: Mr. Scott, we will also have in
19 mind, while you're considering matters, Rule 54 bis,
20 which we haven't referred to yet, and it may be that
21 the respondents can make their submissions on that Rule
22 after the adjournment.
23 MR. SCOTT: Yes, Your Honour.
24 JUDGE MAY: Mr. Casey, I will refer you
25 specifically to 54 bis (F)(i) which requires the state
1 to identify, as far as possible, the basis upon which
2 it claims that its national security interests will be
3 prejudiced. You will have all those matters in mind,
4 of course.
5 It may be helpful to the Trial Chamber if you
6 were to respond to what Judge Bennouna has just said.
7 MR. CASEY: I would be delighted to, Your
9 JUDGE MAY: Yes. After the adjournment.
10 MR. CASEY: Yes, Your Honour.
11 JUDGE MAY: Mr. Scott, if there's anything
12 you want to add.
13 MR. SCOTT: Yes. If I can respond to
14 Judge Bennouna, and then I think I can conclude my
15 remarks before the recess if the Court allows me.
16 Three very short responses, Your Honour, and
17 Judge Bennouna. You're absolutely correct. My
18 understanding is the same as yours on the rulings under
19 the Blaskic judgement, and you have said it better than
20 I have been able to say it.
21 That official can then be subpoenaed in what
22 the law considers -- some might call of a legal
23 fiction -- in a private capacity, and that is exactly
24 the position that I understand it to be as well.
25 Secondly, I appreciate the Court pointing out
1 something that's in our papers but I had not yet
2 addressed this morning, and that is the distinction
3 Croatia makes in some of its responses between
4 documents produced or generated by Croatia itself, if
5 you will, and by its agents, and documents in its
6 position from third parties.
7 Let me be completely clear. We do not
8 recognise or take any comfort in that distinction. Our
9 request is, and I believe the Court's orders are
10 documents in their possession. And I would have to
11 tell the Court that we are very concerned that
12 documents -- for instance, that once we're in Bosnia,
13 ones possessed by the HVO or ones possessed by the
14 Herceg-Bosna government, have in the ensuing years
15 found their way into Croatia or into the hands of
16 certain parties or organisations or governments in
18 So let me be clear. I believe the Court's
19 orders and certainly our requests are for all documents
20 in their possession by whoever initially generated or
22 On the national security issue, Your Honour,
23 the third point, Judge Bennouna, you've raised, again I
24 completely agree with you. There have to be specific
25 steps taken -- and the President was also correct --
1 under the new Rule 54 bis to be very specific. We
2 think there is a very high burden to meet in justifying
3 and setting out the basis for a national security
4 claim. I agree with Your Honour.
5 Let me just close with this, Your Honour: We
6 believe these issues are of a paramount importance to
7 this Tribunal, not just the Kordic case, not just this
8 Trial Chamber. The ability for this institution and
9 indeed for a future International Criminal Court to
10 conduct its business in an effective way has to provide
11 for a way, a mechanism for courts to enter orders and
12 ensure that those orders are complied with. Otherwise,
13 Your Honour, if you will allow me, we are a paper
14 tiger. We make strong statements that cannot be
15 enforced. I don't think that's the position we should
16 be in.
17 In terms specifically of where we stand, and
18 I close with this, after three years, Your Honour,
19 since January of 1997, here is the score: In the
20 Blaskic case, perhaps something like half or more of a
21 small box of documents produced in three years, most of
22 it unresponsive or irrelevant, continued denials that
23 other documents exist or alleged national security
25 In the Kordic case specifically, starting in
1 July 1998 with our first request, 31 documents were
2 produced in response to a request and subsequent
3 application for something that we've shorthand termed
4 the "Bobetko documents." We tell the Court that they
5 were not produced voluntarily. In fact, this goes back
6 to a question that, Judge Bennouna, you raised a few
7 minutes ago. We asked for them voluntarily. We never
8 got a response, didn't get a telephone call, didn't get
9 a letter. There was simply no recognition of our
10 request. We waited for some period of time. Some
11 months went by. We then sought -- applied to this
12 Court for an order. The order was issued and the
13 documents were finally produced. And I submit, Your
14 Honour, the only reason, in our view, frankly, that
15 they were produced is because General Bobetko had seen
16 the wisdom of writing a book about the war in which he
17 identified all these orders very specifically, and,
18 quite frankly, Croatia and its representatives were not
19 in a position to deny the existence of the orders.
20 They simply had no alternative essentially but to
21 produce them.
22 Beyond that, Your Honour, we have three
23 documents produced in response to a 34-paragraph
24 request on the Cerkez case.
25 JUDGE MAY: Mr. Scott, I don't want to
1 interrupt you, but I think we have those points.
2 MR. SCOTT: Thank you, Your Honour.
3 JUDGE MAY: We will adjourn now until half
4 past 11.00, Mr. Casey, and we'll hear you then.
5 MR. CASEY: Very well, Your Honour.
6 --- Recess taken at 11.00 a.m.
7 --- On resuming at 11.35 a.m.
8 JUDGE MAY: There is a request from the
9 interpreters and those who are following in a different
10 language, would the parties slow down in their
11 submissions, please, and have others in mind.
12 Mr. Casey, beginning with you.
13 MR. CASEY: Yes, Your Honour. I will keep
14 that in mind.
15 May it please the Court, Croatia and the
16 Office of the Prosecutor obviously see the world very
17 differently. In Croatia's view, it has complied with
18 the Court's orders. It has not provided materials to
19 the OTP in response to any of the OTP's requests for
20 assistance because it did not believe that the OTP was
21 legally entitled to those materials. The OTP has asked
22 for things that were framed far too broadly and in many
23 cases it would have required simply turning over the
24 military or other archives of the Croatian government
25 to satisfy them.
1 Croatia contested the legal sufficiency of
2 the OTP's requests for orders, and it prevailed. It
3 is, in fact, the OTP that consistently has refused to
4 accept the Appeals Court's rulings on this matter in
5 October of 1997, and it has continued to demand
6 materials that it is otherwise not legally entitled
8 THE INTERPRETER: Counsel please down,
10 MR. CASEY: This is not non-compliance by
11 Croatia but a refusal by the OTP to accept the legal
12 rulings of the Court.
13 The OTP's claim that the materials produced
14 by Croatia were irrelevant and unresponsive also is
15 misplaced. Given the breadth of the OTP's requests, it
16 is difficult to see how these materials could not have
17 been responsive. It may be more accurate to say that
18 the materials were unhelpful to the OTP's case.
19 However, Croatia's compliance with the Court's orders
20 cannot be judged on the basis of whether it produces
21 materials that support the Office of the Prosecutor's
22 accusations. The complaints of various political
23 institutions that Croatia has failed in its obligations
24 to the International Tribunal are precisely that,
25 complaints by political institutions and not legal
2 As to the report by former Prosecutor Arbour
3 to the Security Council, that was the opinion of Mrs.
4 Arbour. It was transmitted to the Security Council by
5 President McDonald without legal process because the
6 President believed that the Court's Rules did not
7 provide for a legal process before the transmission was
8 made. Hopefully, that will be changed. However, to
9 characterise the support to the Security Council as the
10 view of the International Tribunal or to give it the
11 character of a judicial determination is entirely
12 wrong. Croatia understands that Mrs. Arbour was not
13 satisfied with its cooperation with her office, but it
14 believes that it fully complied with its legal
15 obligations and that Mrs. Arbour simply was asking for
16 more than she was entitled to.
17 With respect to the question of the
18 appearance of an official of the Republic of Croatia
19 before the Court, the OTP has actually referred to one
20 part of the October 29 decision but, alas, not the
21 portion of that opinion on point. There is no
22 authority in the International Tribunal to require a
23 state official to come before the Tribunal and to,
24 under oath and subject to penalties of perjury or
25 contempt, make statements with respect to that
1 individual's official duties.
2 The relevant paragraph is paragraph 38 of the
3 29 October 1997 opinion. There the Court stated:
4 "The Appeals Chamber dismisses the
5 possibility of the International Tribunal addressing
6 subpoenas to state officials acting in their official
7 capacity. Such officials are mere instruments of a
8 state, and their official action can only be attributed
9 to the state. They cannot be the subject of sanctions
10 or penalties for conduct that is not private but
11 undertaken on behalf of a state. In other words, state
12 officials cannot suffer the consequences of wrongful
13 acts which are not attributable to them personally but
14 to the state on whose behalf they act. They enjoy
15 so-called functional immunity."
16 THE INTERPRETER: I apologise, but that is
17 too fast.
18 MR. CASEY: I'm sorry. I'll go more slowly.
19 "This is a well-established rule of
20 customary international law, going back to the 18th and
21 19th centuries, restated many times since."
22 The following paragraphs may also be of
23 interest to the Court. I will not read from them.
24 JUDGE BENNOUNA: [Interpretation] Mr. Casey, I
25 should like to interrupt you for a moment on this
1 point, because that will perhaps help us to make
2 progress, which is our common purpose, for justice to
3 be served.
4 You are citing the ruling in the Blaskic
5 case. That has to do with the fact of addressing a
6 subpoena to a representative of a state. We cannot do
7 it to a state, nor to a state representative, because
8 they are covered by immunity, as they are acting on
9 behalf of the state. That is quite evident.
10 But that is not the question we are
11 addressing here. We are not talking about a subpoena.
12 You're not responding to the question. The question
13 put is to ask the state to identify a person, a high
14 official, to express himself on behalf of the state,
15 and I think that there is no prohibition on this in
16 international law, as far as we know. There is no
17 impediment to asking a state to designate an agent to
18 tell us what measures have been taken to honour their
19 international obligations on behalf of the state and to
20 come and present the position of the state.
21 So what was in question in Blaskic was the
22 possibility of addressing an order under penalty of
23 sanctions. That is a subpoena, that is what a subpoena
24 means. And it was stated that one could not do that,
25 that one cannot sanction a state, as such, and address
1 a subpoena to a state for the reasons presented in the
2 Blaskic ruling. That is the problem.
3 So will you please respond to the question
4 that has been raised, and we will be very appreciative
5 of your response.
6 MR. CASEY: Yes, Your Honour.
7 I agree, Your Honour, that the International
8 Tribunal is entirely entitled to request that a state
9 designate an official to travel here to explain to the
10 Court what measures it has taken to comply with the
11 Court's orders. What I was responding to was the
12 suggestion by the Prosecutor that that individual, when
13 they came, would be put under oath and would be subject
14 to penalties of perjury and perhaps to contempt. It is
15 only that that I believe, both under the October ruling
16 and international law generally, that cannot be done.
17 The Court clearly can request that the state designate
18 an individual and request that that individual come to
19 explain its position.
20 JUDGE BENNOUNA: [Interpretation] Thank you.
21 MR. CASEY: Thank you, Your Honour.
22 With respect to the issue of national
23 security, under Rule 54 bis it is incumbent upon a
24 state to bring to the Court's attention, as
25 specifically as it can, national security objections to
1 an application within five days before a hearing.
2 On January 7th, Croatia filed a response to
3 the Court's scheduling order and a request or
4 application for an extension of time to make further
5 national security objections. The objections stated in
6 the January 7th filing were admittedly broad, but they
7 were as specific as possible, given the nature of the
8 Prosecutor's categorical requests.
9 Now, it is obviously the case that depending
10 on the request, whether it be for a specific document
11 or specific category or set of documents, one may well
12 be able to tell, from the face of the request, that
13 there are specific national security objections to the
14 production of the documents. At the same time, it may
15 not be possible to tell that, to a categorical request,
16 until all the documents that might be responsive to
17 that category have been collected and identified and
18 the appropriate officials have had the opportunity to
19 determine whether production of any particular document
20 would comprise the country's national security.
21 I think Judge Bennouna referred to the
22 question of third-party documents and whether a state
23 can merely assert that because a request calls for
24 third-party documents, that its national security is
25 implicated and therefore it does not have to produce
1 the documents. Croatia has never asserted so much.
2 Croatia's position is that with respect to third-party
3 documents in individual cases, it may well compromise
4 its national security to admit that it is in possession
5 of such documents, because to do that could reveal how
6 it obtained the documents and could well reveal sources
7 and methods of intelligence gathering, a matter that
8 all states consider a matter of vital national
9 security. Again, it is impossible to say, at least
10 with the requests in the Prosecutor's July 19
11 application, as well as the April 16 application,
12 whether that will be a problem with any specific
13 document. That will not be -- Croatia will not be able
14 to determine that until it identifies any documents
15 that are responsible to the orders.
16 Now, it is also true that at least with
17 respect to the April 16th application, Croatia has been
18 in possession of that application for some time. With
19 respect to the July 19th application, the country, as I
20 understand, received that only after the Court issued
21 its December 15 order. I believe -- I hope they
22 received it in advance of when we did, but -- and so
23 they've had that much less time.
24 However, the Prosecutor has consistently
25 maintained that merely because the Prosecutor applies
1 for an order, the state is immediately required to
2 begin collecting documents as if it were to respond or
3 comply with that order before the order has even been
4 issued by the Trial Chamber. If due process is to have
5 any meaning at all, the state cannot be required to
6 begin complying with one of the Prosecutor's requests
7 until after the Court has issued a proper legal order,
8 assuring itself that the requirements set out in the
9 October 27, 1997 opinion, as glossed by the
10 September 9, 1999 opinion in the Cerkez case, have been
12 Therefore, Croatia has asked for and believes
13 that it will need the additional time it has asked for,
14 45 days from the time an order actually issues by the
15 Court, to identify further national security
16 objections, and ultimately 60 days to produce whatever
17 it may have that is responsive to the Court's order.
18 Croatia believes that that is an entirely reasonable
19 period of time, and indeed it is only 15 days more than
20 the original 45 days the Prosecutor itself suggested in
21 the 19 July application.
22 Finally, before I turn the podium over to
23 Mr. Rivkin to discuss the issues that were raised in
24 the Prosecutor's submission, one point on the issue
25 that the Prosecutor has raised of the alleged support
1 by the Republic of Croatia for the Defence in the
2 Kordic case, I would simply point out that it is no
3 more inappropriate for a state to render assistance to
4 the Defence, or the lawyers for that state, for that
5 matter, assuming that they are within the bounds of any
6 orders the Court has issued, as it is for states to
7 offer assistance to the Office of the Prosecutor, which
8 we believe has also been the case.
9 Indeed, I would point out that of the lawyers
10 standing here today, four of us have, at various times,
11 served in the United States Department of Justice;
12 Mr. Rivkin, myself, Mr. Harmon, and Mr. Scott. And I
13 believe at least at one point lawyers were seconded or
14 detailed from the Department to assist the Office of
15 the Prosecutor.
16 I think it is important to keep in mind that
17 merely because the Office of the Prosecutor has brought
18 allegations against individuals, allegations which we
19 must all accept as nothing more than allegations until
20 the Prosecutor has proved its case beyond a reasonable
21 doubt here in court, it has not, by that act, lined up
22 the entire world against the defendant. It is not the
23 world versus the defendant, it is not the United
24 Nations versus the defendant, it is not right-thinking
25 states versus the defendant, it is merely the
1 Prosecutor versus the defendant, and it is up to the
2 Court to determine, ultimately, whether there is guilt
3 or innocence.
4 So states are perfectly free, and properly,
5 to give assistance to either the Prosecutor or the
6 defendant as they may see fit, within the bounds of
7 their international obligations, and we believe that
8 Croatia has fully complied with those limits.
9 Thank you, Your Honour. I would be happy to
10 answer any questions the Court may have.
11 JUDGE MAY: Mr. Casey, just this: I referred
12 you to Rule 54 bis.
13 MR. CASEY: Yes, Your Honour.
14 JUDGE MAY: Now that, in relation to national
15 security interests under Subrule (F)(i), requires the
16 state to identify, as far as possible, the basis upon
17 which a national security interest is claimed. Now, I
18 anticipate that to mean more than merely an assertion,
19 that what will be required is the identification, at
20 least in general terms, of what the interest is. It
21 will not be sufficient merely to say a national
22 security interest is involved. It will be necessary
23 for the state to go further than this, and it may be by
24 the calling of evidence to establish what that interest
1 MR. CASEY: Yes, Your Honour. I would -- we
2 understand that, Your Honour. I believe in the
3 January 7th submission, that Croatia identified the
4 basis of its interests as far as possible at this time,
5 that being two; that the April 16th order requests
6 certain documents from and to the then President of
7 Croatia as well as its Defence Minister.
8 The correspondence of the head of state as
9 well as the head of the country's military normally is
10 considered to be of national security concern. Again,
11 it may not be that all of the correspondence is. You
12 can only determine that on a document-by-document
13 basis. But that is one of the bases upon which Croatia
14 has a national or may have a national security concern
15 with some of the documents once it reviews whatever it
16 may have in its possession.
17 The second basis was the third-party issue,
18 and that is many or most of the requests in the April
19 16th, as well as in the July 19th applications, seek
20 documents that were not generated or at least
21 presumably not generated in Croatia or by Croatian
22 government officials. Mostly they seek documents
23 either from or to the defendant Mr. Kordic and various
24 other named individuals. Consequently, if Croatia is
25 in possession of some or all of those documents, how it
1 came into possession of those documents might well
2 raise a national security interest. Again, the basis
3 would be that it would reveal the sources and methods
4 of intelligence gathering or even intelligence
5 capabilities. I mean if you don't have a document, it
6 may reveal as much about your intelligence capabilities
7 as if you do.
8 Again, because of the categorical nature of
9 requests, Croatia cannot be more specific at this time
10 until specific documents have been identified and a
11 review of them can be made. Indeed, even once a review
12 is made whether to assert a national security interest,
13 should it exist, is a matter for the elected government
14 to determine. So again, Croatia's requested some
15 additional time so that process can take place.
16 JUDGE MAY: Thank you.
17 MR. CASEY: Thank you, Your Honour.
18 MR. RIVKIN: Judge May, Judge Bennouna, I
19 will try very briefly to respond to several points made
20 by the OTP in their written submission. Indeed, I'm
21 grateful to Judge May for bringing them to my
22 attention. I, of course, have not had much time to
23 study them so would like perhaps to reserve an
24 opportunity to respond to them -- I better slow down --
25 to respond to them in writing at the earliest possible
1 opportunity, but I certainly am able to make a couple
2 of preliminary observations, because I think those
3 points are not very difficult to respond to.
4 Number one, I notice that the particular
5 numbered paragraphs that Judge May referred to cite
6 newspaper articles. If I'm not mistaken, fairly
7 recently in this very Trial Chamber, in response to a
8 controversy involving the issue of withdrawal of
9 Tribunal funding for the lawyers in the Kupreskic case
10 that was undertaken by the registrar, and I apologise
11 if I have the Trial Chamber wrong, has pointed out that
12 newspaper articles are inherently unreliable methods
13 of -- a means of proving any point.
14 Indeed, I would mention that there are a
15 number of newspaper articles, not only in Croatian
16 newspapers but papers like the New York Times, one of
17 the most respected newspapers in the world, that have
18 made allegations, for example, arguing, for example,
19 that the OTP has leaked information about alleged
20 indictments against President Tudjman, prompting OTP to
21 respond that this is not the case. So newspapers quite
22 often get their facts wrong. That's sort of the first
24 The second point: It's always difficult for
25 counsel to respond to newspaper accounts or any other
1 accounts that involve confidential the attorney/client
2 privilege which is certainly very important to any of
3 us who practice law and one of the most important means
4 of ensuring due process and liberty.
5 However, I think in this case my situation is
6 somewhat easier, because I can point out that as the
7 Prosecutor very well knows, those newspaper accounts
8 actually deal with an entirely different matter.
9 Again, if you actually read those newspaper accounts,
10 the way the Prosecutor weaves the facts --
11 THE INTERPRETER: Could the counsel slow
12 down, please.
13 MR. RIVKIN: The way the Prosecutor weaves
14 the facts in those numbered paragraphs would lead one
15 to believe that the subject matter involved was the
16 general strategy of Croatia vis-a-vis this Court or,
17 rather, the way the Prosecutor categorises the general
18 strategy of non-compliance or obstruction by Croatia
19 vis-a-vis this Court.
20 Actually, those articles deal solely with one
21 issue and one issue only, which is the position of
22 Croatia regarding the question of whether or not this
23 Tribunal has jurisdiction over operations storm and
24 flash. It has nothing to do with Blaskic case, Kordic
25 case, production of documents in any of those cases.
1 And again, while I'm constrained by the
2 bounds of attorney/client privilege from getting in a
3 lot of detail, I can certainly tell Your Honours, and I
4 believe some of Your Honours know that from other
5 context that the Croatian position was, is, and remains
6 that this Tribunal lacks jurisdiction over those
7 particular operations and that this matter should be
8 resolved for a judicial process. And I should hasten
9 to add that Croatia has pointed out consistently in
10 writing and orally that it would be bound by whatever
11 decision is reached by this Tribunal, judicial decision
12 is reached by this Tribunal regarding these
13 operations. So I am really puzzled as to why those
14 articles are being trotted out on the issue of what has
15 Croatia's record or strategy been relative to
16 production of documents.
17 Let me now just briefly make another point in
18 this regard; that it has never been the position of the
19 Republic of Croatia to adopt a general strategy of
20 non-cooperation with the Tribunal. That strategy has
21 never been, to the best of my knowledge, discussed,
22 raised, or communicated in any meeting or encounter in
23 which we have -- that has taken place. Have we ever
24 heard such a strategy even being discussed, again, a
25 generic strategy of non-compliance with Croatia's legal
1 obligations? We have advised our client, in the
2 strongest possible terms, not to do so because indeed
3 that would have been in violation of international
4 legal obligations and Article 29 and perhaps other
5 bases in other international law.
6 And lastly, on that point, I am enormously
7 disappointed in the fact that the OTP continues to --
8 and I say continues because we had an exchange of
9 correspondence in this matter that I hope perhaps
10 erroneously closed this issue down to mischaracterise,
11 which is rather unusual for especially people trained
12 in Anglo-Saxon law, mischaracterised position, or I
13 should say relationship between counsel and the
15 It is never the case. I've already mentioned
16 to Your Honours what has been the position of Republic
17 of Croatia regarding cooperation of the Tribunal. But
18 in any case, it has never been the role of counsel, in
19 this or any other representation to decide policy for
20 its client, be it Republic of Croatia, a corporation,
21 an individual. What we have always done and will
22 continue to do for this or any other client, and any
23 lawyer I know of serving in the legal capacity, is to
24 tell the client what its legal options are. It is the
25 client's choice what policy to adopt, but it is
1 incumbent upon any lawyer to the extent that there are
2 valid legal arguments which go to the question of what
3 precisely a client's obligation is, to advise the
4 client as to what legal options they have. If you
5 don't, indeed I would argue that in most circumstances
6 you would be committing malpractice, but it's always
7 the client's decision as to what policy to adopt.
8 And the last point I would like to make, and
9 I'm supplementing an observation made by my
10 distinguished colleague, Mr. Casey, relative to
11 Croatia's interest in cooperating with various
12 defendants, in addition to everything that Mr. Casey
13 has said, I would like to point out that obviously a
14 great deal of interest on Croatia's part in what is
15 happening in these cases is attributable precisely to
16 the fact that the OTP chose to prosecute these
17 individuals not merely for specific acts or activities
18 but in the process as indeed -- not inappropriate,
19 sought to paint a picture of actions by the Republic of
20 Croatia during certain portions of a conflict following
21 the dissolution of the former Yugoslavia, that, from
22 the position of Republic of Croatia, are completely
23 untrue and unfair. And the Republic of Croatia indeed
24 is in a difficult position or any other sovereign
25 state. It is not a party, it is not able to come in
1 and directly argue on the question of whether or not,
2 for example, there was an armed conflict in Central
3 Bosnia. It doesn't -- indeed, I think at one point the
4 Republic of Croatia has asked for an opportunity to
5 even submit an affidavit on that point in Kordic case
6 and I believe, if my memory serves me -- Blaskic case,
7 forgive me. If my memory serves me right, the problem
8 was that it was rather late in the trial, but also it
9 wasn't obvious what would be the probable value of such
10 a memorial given any status of a state like Croatia or
11 states like Croatia vis-a-vis this Tribunal. And it's
12 quite natural, as I said, in addition to what my
13 colleague, Mr. Casey, said, it's quite natural for a
14 state in a proceeding or proceedings where it feels its
15 behaviour in the past is being quite unfairly
16 characterised to be actively working with those parties
17 who do have an opportunity to say something in the
18 courtroom. It would be foolhardy. I cannot see any
19 other sovereign state acting in that fashion.
20 So to me, as long as everybody is operating
21 within the bounds of protective orders and that
22 certainly has been the case, I can't imagine how
23 anybody would try to base any imputation or inference
24 of conduct, good or bad for the defendant or for the
25 state involved, from those exchanges.
1 Thank you, Your Honours. I would be happy to
2 respond to it in writing, indeed I will at greater
3 length, but that's what I wanted to say today. I would
4 be happy to answer any questions.
5 JUDGE BENNOUNA: [Interpretation] I have a
6 question but, rather, for Mr. Casey, regarding his
7 comment concerning the interpretation of Rule 54 bis.
8 This Rule relating to orders to states for
9 the production of documents has the following form:
10 The criteria are indicated for issuing such an order.
11 I don't know whether Croatia is contesting that those
12 criteria are stipulated, that the documents be
13 identified, that they are relevant, that there was an
14 attempt made to obtain them by other means, through
15 cooperation and so on.
16 Then also there is the possibility for the
17 Judges rejecting that request, and that is not
18 under (B). Then we come to (C); that is the
19 possibility of appeal. And under (D), that applies to
20 us, and that is that we decide to hear the state in
21 audience, and such a hearing was decided and envisaged
22 for today, the 13th of January.
23 We are in the situation envisaged under (D),
24 and we come to the situation under (E), which doesn't
25 concern us. It doesn't concern us. What does concern
1 us is the (D) and the (F). Do we agree on that?
2 Under (F) it is stated that prior to the
3 hearing, a state may make an objection claiming
4 national security interest. And, as you say, the basis
5 for such an objection, the grounds, have to be
6 provided, specified, as is stated under (F).
7 Then if an objection is made, which you
8 appear to be doing, we either ask you to explain
9 yourself clearly or to require a special hearing to
10 hear your objection, which is something that you
11 haven't done.
12 So what are you telling us, make the
13 decisions first and then we shall see? But that is not
14 what is envisaged under Article 54 bis. It doesn't
15 function in that way at all. It does not oblige us to
16 make a ruling and depending on that ruling, because you
17 made an interpretation which is not correct. It is
18 clear from this Rule, which says that if you have an
19 objection, you can present it now, which do you not
20 wish to do, or you can require protective measures for
21 your objection to be protected to the maximum as well
22 as national security interests, and after the Court,
23 the Chamber has heard you, it is only then that we make
24 our ruling, taking into consideration the criteria,
25 which we don't know if you are contesting them or not
1 because you haven't said anything, and taking into
2 consideration the national security interests.
3 Therefore, we wish to draw your attention to
4 the fact we cannot, as you are saying, make a ruling
5 and give you 45 days to respond regarding national
6 security interests and then give you 60 days after
7 that. It doesn't work that way.
8 Therefore, if you have an objection based on
9 national security interests, you must make it, and if
10 you wish it to be protected, you must request a hearing
11 implementing Article 54, and it provides certain
12 guarantees under (F). If you don't do that, that means
13 that the Tribunal will go over your objection, that it
14 has no contents. It is up to you to give it
15 substance. You must request a hearing, and it is up to
16 us to decide whether we will grant it to you, providing
17 guarantees and necessary protections.
18 That is what I'm trying to say, that your
19 interpretation of Rule 54 is not a good one. It
20 doesn't function that way. It is not up to us to make
21 a ruling and then to give you an opportunity to see
22 whether the documents we are requesting can be claimed
23 national security interests. We do not first have to
24 say which are the documents corresponding to the
25 criteria and then you will see whether you will object
1 or not. That is not what is stipulated.
2 I apologise for drawing your attention to
3 this. Normally it is up to you to tell us, according
4 to the Rules of the Tribunal, whether you have an
5 objection concerning national security interests, if
6 you wish to present it. And if you're asking for a
7 hearing with protective guarantees, it is up to the
8 Tribunal to respond, the hearing will be held, and the
9 Trial Chamber will decide on the order to be issued
10 concerning the production of documents. That is what
11 is stipulated in the text.
12 I wanted to tell you this. I don't know
13 whether you have any comments, but I think you have to
14 react, because if you don't react, then it is our
15 understanding that you have no objection.
16 MR. CASEY: Well, Your Honour, I would like
17 the opportunity to react. I understand the
18 interpretation of the Rule that Your Honour has
19 outlined. As to the elements of Rule 54 bis, they
20 appear to restate the tests, the requirements adopted
21 by the Appellate Chamber in the 29 October, 1997
22 judgement, and Croatia has no objection to those
24 It is true that the Rule is crafted in such a
25 way that one would expect a state to make its national
1 security objections five days before a hearing.
2 However, the Rule does state that the state need only
3 identify those as far as possible, and what Croatia has
4 said is that looking at the requests from the
5 Prosecutor, it is impossible to tell, from the face of
6 the requests, all of the potential national security
7 objections that it may have. From the face of the
8 requests, it can see that some types of documents that
9 have been requested are likely to cause a national
10 security problem if they are released, and Croatia
11 stated in the January 7th submission the basis of those
13 It also, at that time, asked the Court --
14 JUDGE BENNOUNA: [Interpretation] The question
15 is a very simple one. You have a request for the
16 production of documents. You have a principled
17 objection claiming national security interests. We are
18 agreed. You have a submission a week prior to the
19 hearing. It is up to you now to tell us whether, yes
20 or no, you wish to present in detail and within which
21 deadline those national security objections and under
22 which guarantees. It is up to you to tell us. If you
23 don't tell us, you cannot seek shelter by saying a
24 priori in a general manner, "We cannot tell," and so
25 on. That's very vague. It's up to you to be
1 specific. That is envisaged by the rule.
2 Are you asking for a hearing to present your
3 national security objections or not? If you are not,
4 then we will rely on your filings which simply -- your
5 submission, which simply says that there may be
6 national security interests. It is up to you to tell
7 us whether you want a hearing or not. If you are not
8 requesting a hearing, there is no national security
9 objection. That is the text and that is what I'm
10 asking you to consider.
11 We are not going to take a decision on the
12 production of documents and give you, after that, 45
13 days. That is not what is envisaged by the Rule. The
14 Rule says if you have an objection and if you want
15 guarantees, you ask for a hearing and you present your
17 I'm asking you to tell us clearly: Are you
18 here to speak on behalf of Croatia? As a professional
19 lawyer, you must respond to a legal text as it stands.
20 You may need instructions from the state that employs
21 you. It's up to you to tell us.
22 MR. CASEY: Yes, Your Honour. What Croatia
23 requested was not a hearing, admittedly, but it was the
24 practical equivalent of that, which is additional time
25 to make more specific objections. Whether it would
1 make sense to have those objections done in a hearing
2 context, it may well be most efficient and useful for
3 the Court to have a hearing at which an official
4 appears to articulate more specifically the national
5 security objections.
6 At the same time, it may be that once
7 documents have been collected and reviewed, there will
8 be no national security objection or, if there is, the
9 state will decide, as a matter of policy, not to assert
10 it but to surrender the documents in any case. It is
11 really only the elect representatives of the state that
12 can decide how to handle that.
13 I agree with Your Honour that the Rule
14 appears to contemplate that all national security
15 objections will be made by five days before the
16 hearing. And in some cases that may work very well,
17 because it will be obvious what documents are called
18 for and what documents the state has and what the
19 national security objection is. What I'm saying is
20 that here that is not the case. Therefore, we have
21 requested the Court essentially to grant us an
22 extension of time to make those objections.
23 Again, I believe the Court fully has the
24 authority to do that, both under Rule 54 and under
25 Rule 127 if it is disposed to do that.
1 I would like to make clear that we have not
2 asked for 45 days to make national security objections
3 and then an additional 60 days to produce the
4 documents. What we have asked for, effectively, is
5 60 days to produce the documents but within that period
6 to be able to raise, within 45 days, if some of the
7 documents -- if release of some of the documents would
8 cause a national security problem, to be able to bring
9 that to the Court's attention. It may well be that a
10 hearing would be the best way to do that, assuming
11 there are such additional objections. My colleague --
12 JUDGE MAY: Just one moment.
13 MR. CASEY: Yes, Your Honour.
14 [Trial Chamber confers]
15 JUDGE MAY: Yes, Mr. Casey. Is there
16 anything else you want to add?
17 MR. CASEY: No, Your Honour, but my colleague
18 Mr. --
19 THE INTERPRETER: Microphone, please.
20 MR. RIVKIN: Thank you, Your Honours. Just a
21 factual observation.
22 We fully appreciate that in the normal course
23 of things, of course, the interpretation advanced by
24 His Honour Judge Bennouna would, indeed, be
25 operational, which is to say the state would collect
1 the documents, the relevant -- identify all responsive
2 documents, would look at them, analyse them, and make a
3 decision as to whether or not to assert national
4 security objections.
5 We beg Your Honours' indulgence. It's
6 somewhat of an unusual time. Croatia is, of course, a
7 sovereign state and continues to function during the
8 transition period, as indeed other countries. But as a
9 practical matters, I hope Your Honours would not be too
10 displeased with the observation that this is, from a
11 bureaucratic perspective, a somewhat different
12 situation than we had, let's say, three months ago or
13 would have again three months from now, which is the
14 ability to get very senior people to focus on the
15 issues is somewhat limited. It is for that reason and
16 that reason only we're proceeding in this manner, and
17 one thing we certainly wish to avoid is to make a
18 request for a national security hearing in a situation
19 that it's quite possible that the relevant government
20 officials, once they complete the collection of
21 responsive documents and analyse them, would decide not
22 to make such an objection. I believe Croatia takes
23 those matters quite seriously, so we didn't want to
24 ask, without a compelling reason, for such a hearing.
25 Again, I want to assure Your Honours this is not -- no
1 disrespect is intended here.
2 JUDGE MAY: Thank you. Yes.
3 Mr. Nice, I don't know that any reply is
4 called for. If there is any matter you want to deal
5 with shortly, in terms of clarification, if you would
6 be short.
7 MR. NICE: I'll be short and, I hope, to the
9 First, presumably a responsible government,
10 on receipt of the applications, will have identified
11 the documents, for only by identifying the documents
12 can it know what its response should be, particularly
13 its response in relation to national security
15 These applications range between January and
16 July of last year. Therefore, there has already been
17 six months for the preparation of documents, as must
18 have taken place for this matter to be dealt with
19 responsibly, and identification of whether there are
20 any national security concerns to be raised.
21 Accordingly, there is no need for further time.
22 I remind the Chamber, particularly in light
23 of the last observation by Mr. Rivkin, that in, I
24 think, April of last year -- it may be this ought to be
25 in private session, it's paragraph 45 -- it's May of
1 last year, paragraph 45 -- to deal with it without
2 needing to go into private session, I just say this:
3 Time was taken with the forecast of exactly such a
4 hearing, the time having been taken, delay having been
5 bought. The hearing was then abandoned. Many of these
6 matters have already been litigated, insofar as they
7 have been in Blaskic, and accordingly preparation as to
8 how to deal with the documents was made by the state
9 then, years ago.
10 That's all that needs to be said about
11 national security.
12 The breadth of the orders were only appealed
13 in one of the Cerkez orders. That appeal was
15 The vulnerability of an individual to
16 sanctions is dealt with at paragraph 51 of the Blaskic
17 decision. I needn't go through it. I know that the
18 Chamber is familiar with those passages. It's a
19 question of fact.
20 I observe, dealing with the overall arguments
21 raised about cooperation in the Kordic Defence and also
22 in relation to the newspaper articles and the meeting
23 that occurred between all the lawyers and other
24 representatives, I observe that there's no challenge to
25 the accuracy of what's said there. The newspaper
1 articles proceed, for the large part, on the basis of
2 minutes, the accuracy of which is not challenged. They
3 are generic in many places in what they describe of the
4 advice given and the response taken by the state of
5 Croatia. Such phrases as "dragging its feet" will be
6 familiar to the Chamber from its reading of the
7 papers. The matter is adequately pleaded and is in no
8 way met.
9 May we please have a private session for one
10 short matter.
11 [Private session]
13 page 12130 redacted – private session
1 [Open session]
2 MR. NICE: We can only invite Your Honours
3 today to suggest to the Defence this: that in the same
4 way as it might have been wise and appropriate to
5 prepare documents on receipt of applications in order
6 to know what they were to deal with them, rather than
7 to put it off to hearing dates, that it might now be
8 wise for them to prepare against the orders, if any,
9 made when Judge Robinson makes the Court fully
10 composed. It might be wise to prepare for them on that
11 basis, because this Tribunal might think that it could
12 give very abbreviated time scales to reflect the
13 ability of Croatia to use the intervening time for
14 those purposes. The time scales proposed by Croatia
15 would, of course, take any production beyond the end of
16 the Prosecution case in Kordic.
17 JUDGE MAY: Thank you.
18 MR. CASEY: Your Honour, may I respond?
19 JUDGE MAY: Well, it will be very brief and
20 only on any new point. We don't want to hear any more
22 MR. CASEY: Yes, Your Honour.
23 I would point out that with respect to the 19
24 July submission, Croatia has only had that since
25 December, and it is very voluminous. Moreover, it is
1 not the case that one must collect all the documents to
2 respond to an order with objections if, on the face of
3 the order, it does not meet the requirements for
4 specificity, relevance, burden, and that kind thing,
5 and so the Prosecution is going from an improper
7 I would also like to respond to what the
8 Prosecution has said with respect to the remarks of
9 Mr. Smith, and perhaps we should be in closed session
10 for that.
11 JUDGE MAY: Well --
12 MR. CASEY: It will only take a moment.
13 JUDGE MAY: Mr. Casey, we have litigated this
14 matter thoroughly. If there's anything you want to add
15 to what Mr. Rivkin is going to say in writing, you can
16 say it, but I think we've heard enough on this topic.
17 Both sides have aired their views.
18 MR. CASEY: Thank you, Your Honour.
19 [Trial Chamber confers]
20 JUDGE MAY: Very well. We will consider this
21 matter, and we shall make our order when the Trial
22 Chamber is fully composed. The parties will be
23 informed in writing.
24 We'll adjourn now.
25 --- Whereupon the Ex Parte Hearing
1 concluded at 12.36 p.m.