1 Friday, 21 May 1999
2 (Closed session)
3 (Ex parte)
4 --- Upon commencing at 10.01 a.m.
13 pages 2903 2935 redacted closed session (ex parte)
13 --- Recess taken at 11.05
14 --- On resuming at 11.30 a.m.
15 (Open session)
16 JUDGE MAY: We are in open session now.
17 This is a hearing of a Prosecution
18 application for an order for the production of
19 documents, dated the 16th of April. We have the
20 application before us. We bear in mind, of course, the
21 Blaskic guidelines or criteria in the judgement of the
22 Appeal Chamber of the 29th of October, 1997. The
23 request is to issue a binding order to Croatia to
24 produce the documents listed within an annex within 45
25 calendar days, and in the event of nondisclosure, to
1 appear before the Trial Chamber to show cause.
2 It's your application, Mr. Nice.
3 MR. NICE: I've very fully argued in the
4 motion of the 16th of April --
5 THE INTERPRETER: Microphone, please.
6 MR. NICE: -- fully argued in the motion of
7 the 16th of April, we know nothing of the intended
8 response of the state of Croatia to the motion, and in
9 those circumstances, it may be better if I add nothing
10 now but reserve what may be of further assistance when
11 I hear the response of Mr. Casey, unless there is
12 anything that's troubling the Chamber at the moment.
13 The material sought -- perhaps I should then
14 just outline -- the material sought is plainly relevant
15 for the reasons set out in the motion, both because of
16 the clear evidence of close contacts between Zagreb and
17 those intimately involved in the subject matter of our
18 case, because of the need to prove international armed
19 conflict, they are all dealt with by the request or the
20 documents subject of the request, we would invite the
21 Chamber to say, for example, from evidence of regular
22 meetings in Zagreb, of which it's already heard at the
23 highest level, that it's simply impossible to accept
24 that such meetings weren't documented, and that the
25 documents will plainly be of assistance to this Chamber
1 and should be produced.
2 JUDGE MAY: Mr. Casey?
3 MR. CASEY: Yes, Your Honour. Let me begin
4 by saying Croatia has not filed a written answer to the
5 Prosecutor's application; it was our understanding that
6 this was Croatia's opportunity to respond, and so we
7 have not responded hitherto.
8 With respect to the application, Croatia does
9 not believe that the OTP's application meets the
10 requirements of the Appeals Chamber's 29 October, 1997,
11 judgement, any more than its original July 24th, 1998,
12 application did. Although this question requests seeks
13 materials regarding certain named individuals, the
14 requests themselves continue to seek materials
15 identified only by category and not the specific
16 relevant documents required by the Appeal Chamber's
18 Indeed, the very number of the OTP's requests
19 is, in and of itself, astounding. When the 41
20 individual categories of documents demanded by the OTP
21 are considered, with the 22 separate subject matter
22 areas listed in attachment 1, each has 22 subparts, for
23 a grand total of 902 individual requests, each one
24 seeking all documents or records of various types in a
25 particular category that may be in the possession of
1 any agency of the Croatian government. This, in and of
2 itself, renders the request unduly onerous and
3 inconsistent with the law of the International
5 In suggesting that the application meets the
6 requirements for a binding order under Article 29(2),
7 the OTP has taken a position fundamentally at odds with
8 the language and spirit of the 29 October, 1997,
9 judgement. The OTP continues to treat the International
10 Tribunal's authority to issue biding orders as a
11 general investigative tool. Is it not. The authority
12 of the International Tribunal to issue binding orders
13 to states, under Article 29(2), as explained by the
14 Appeals Chamber in --
15 THE INTERPRETER: Please slow down.
16 MR. CASEY: -- my apologies -- as explained
17 by the Appeals Chamber in the 29 October, 1997,
18 judgement is, as the Chamber explained, a novel and
19 unique power. As the Chamber continued, under
20 customary international law, states, as a matter of
21 principle, cannot be ordered, either by other states or
22 by international bodies. As an extraordinary power,
23 one exercised in derogation of the ordinary rules of
24 international law, the International Tribunal's
25 authority to issue binding orders to states should be
1 narrowly construed and in accordance with the Appeals
2 Chamber's strict ruling.
3 In this respect, and in determining the
4 proper scope of the International Tribunal's authority
5 under Article 29(2), reference to the power of national
6 courts to order production of evidence from third
7 parties, whether in civil or criminal cases, which in
8 most jurisdictions is narrow in any case, are not
9 particularly instructive.
10 As the Appeals Chamber stated in its 29
11 October, 1997, judgement --
12 JUDGE MAY: Just a moment, Mr. Casey. Where
13 are you reading from, please?
14 MR. CASEY: My notes, Your Honour.
15 JUDGE MAY: I'm sorry. I thought you had
16 been referring to the Blaskic judgement.
17 MR. CASEY: The first quote that I mentioned
18 is on page 17 of the judgement. That would be paragraph
19 26, in about the middle of the page. The second
20 quotation, which I'm about to read, is at paragraph 23,
21 which would be on page 14.
22 As the Appeals Chamber stated in its 29
23 October 1997 judgement, the Appeals Chamber holds that
24 domestic judicial views or approaches should be handled
25 with the greatest caution at the international level,
1 lest one should fail to make due allowance for the
2 unique characteristics of international criminal
4 Specifically with respect to what the Appeals
5 Chamber termed the domestic analogy between national
6 courts and the International Tribunal, it noted that,
7 and I quote, "International courts do not necessarily
8 possess, vis-à-vis organs of sovereign states, the same
9 powers which accrue to national courts in respect of
10 the administrative, legislative and political organs of
11 the state. Hence, the transposition onto the
12 International Community of legal institutions,
13 constructs or approaches prevailing in national law may
14 be a source of great confusion and misapprehension."
15 That is at paragraph 40 of the Blaskic judgement.
16 JUDGE BENNOUNA: All this is related to
17 subpoena, isn't it? All the reasoning is related to
18 the question of subpoena.
19 MR. CASEY: Well, Your Honour --
20 JUDGE BENNOUNA: We are not subpoenaing
21 Croatia, or we are not discussing the question of
22 subpoenaing from Croatia. Have this in mind.
23 MR. CASEY: Yes, Your Honour. As a matter of
24 fact, the case, while it did quash a subpoena issued to
25 Croatia, also set the boundaries of, quote/unquote,
1 "binding orders" under Article 29(2), and so the
2 Court's language here is fully applicable to binding
3 orders as well as the original subpoena that was at
4 issue in that case.
5 JUDGE BENNOUNA: I think there is a
6 confusion, really. You are confusing between the
7 binding order, which is accepted, really, by this
8 Chamber, and the question of subpoena. All what is
9 said and what you will recall here, what you are citing
10 is related to the question of subpoena. The
11 distinction is very clear, either in the decision of
12 the Court or in all the commentaries which were given,
13 you know, from this date by the scholars, by the
14 professors, in the international reviews and so on, and
15 I think it really will not help our Chamber to return
16 to this discussion which is now very known, a very
17 known distinction, so really, really, in all the
18 faculties of law, I can assure you.
19 MR. CASEY: Well, Your Honour, with respect,
20 I think the Appellate Chamber was speaking a little
21 more broadly, and the question of whether, as a matter
22 of ordinary international law, a state can be
23 compelled, whether it be under the name of subpoena or
24 under the name of binding order, I think the answer is
25 that as an ordinary matter, states cannot be compelled
1 to, frankly, do anything by other states, with the
2 exception of some very narrow instances where you may
3 have a Security Council resolution specifically
4 requiring a state or actually requiring other states to
5 compel a state to do something.
6 JUDGE BENNOUNA: (Interpretation) You're
7 saying, Mr. Casey, that it is on the basis of the
8 Security Council, which established this Tribunal, and
9 in Article 29 it has the authority to order a state,
10 and that this was accepted by this Tribunal.
11 But subpoena, subpoena is a different
12 decision. It means the transposition of the national
13 and international law, and this was rejected by this
14 Tribunal. Now, this distinction between these two
15 things is quite clear, and the Tribunal is fully
16 empowered to order and to request and bind a state to
17 produce a certain number of documents. I do not think
18 that this is at issue any longer, and we do not have to
19 evoke -- we can go back to Chapter 7, but we are not
20 discussing it here. This, what we are talking about,
21 has been accepted generally as something that the
22 Tribunal may do.
23 The transposition of certain national issues
24 to international law is a different matter, but I
25 believe that to us, it's quite clear, and if you are
1 not clear about these distinctions, then evidently
2 something has to be done about that.
3 MR. CASEY: Your Honour, I see the point
4 you're making. Croatia does not contest the authority
5 of the International Tribunal to issue binding orders,
6 as was decided in the Appellate Court's judgement. All
7 I'm saying is that in making that addition, the Court
8 carved out, based upon Article 29(2), an exception to
9 the ordinary rule of international law, and therefore
10 it should be narrowly construed. I'm not saying that
11 the Court does not have the authority to issue binding
13 The purpose of Article 29(2) is not to permit
14 the OTP to conduct a general investigation, seeking
15 documents that might be useful to the OTP's work in
16 this or other cases or that might contain relevant
17 information. Rather, the International Tribunal's
18 authority to issue --
19 THE INTERPRETER: Will you please slow
21 MR. CASEY: The International Tribunal's
22 authority to issue binding orders, under Article 29(2),
23 is a device whereby states may be compelled to produce
24 specific documents that each are deemed relevant to the
25 trial of the accused and that are limited in number.
1 These criteria, as the Trial Chamber noted in its 22
2 January 1999 order to Croatia, are cumulative and
4 The OTP's 16 April 1999 application does not
5 meet these criteria. Indeed, the OTP concedes that it
6 cannot, and I quote, "cannot specify the precise
7 nature, date, author, recipient, and content of each
8 specific document." This, however, is precisely what
9 the Appellate Court decision requires.
10 Even where the title, date and author of a
11 document are known, the specific document sought must
12 still be identified. Here, the OTP cannot even
13 identify the nature of the documents it seeks.
14 In support of its request, the OTP relies
15 upon the separate opinion of Judge Shahabuddeen in an
16 order issued to Croatia on July 21st, 1998, in the
17 Blaskic case. This reliance is misplaced.
18 First, Judge Shahabuddeen's opinion was
19 attached to an order that, by and large, did request
20 specific --
21 THE INTERPRETER: Counsel, slow down. The
22 interpreters do not have a copy.
23 JUDGE MAY: There is a problem if you read.
24 If someone is reading something, they are inclined to
25 go much more quickly, and everything here has to be
1 interpreted. It's also more difficult for those trying
2 to follow if you go too quickly, Mr. Casey. So can you
3 please limit yourself?
4 MR. CASEY: I will endeavour to slow down.
5 Many of the requests in that order could, in
6 fact, fairly be characterised as categorical in
7 nature. They were identified as members of a class, in
8 Judge Shahabuddeen's words. However, that
9 identification was specific enough so that the actual
10 documents desired by the OTP could be separated from
11 all the other materials in Croatia's archives that
12 might contain evidence relevant to the Blaskic trial,
13 and these were emphatically limited in number.
14 For example, one such request in paragraph 3
15 of that order sought military information summaries for
16 the Second Guards Brigade, the Thunderbolts,
17 quote/unquote, "from 1st September 1993 to 31 October
18 1993 while serving in Republic of Bosnia and
19 Herzegovina." This request clearly meets the 29
20 October 1997 judgement, even though it does not identify
21 each document by title, date and author but rather
22 identifies those documents as members of a class.
23 The type of documents sought, a, quote,
24 "military information summary", is identified, as are
25 the particular military information summaries desired,
1 those for the Second Guards Battalion. Such summaries
2 are generally kept on a daily basis, as I understand
4 The request is further limited by date,
5 September 1st through October 31st of 1993, and place.
6 Only summaries prepared while the particular unit was
7 serving in Bosnia and Herzegovina were called for. At
8 most, some 60 odd documents could have been
10 This is the level of specificity Judge
11 Shahabuddeen had before him in writing this opinion,
12 suggesting that categorical requests could be made.
13 This level of specificity is nowhere to be found in the
14 OTP's 16 April 1999 application.
15 It is true that Judge Shahabuddeen goes on in
16 his opinion to suggest that, quote, "I do not see that
17 a demand for hundreds of documents is mechanically
18 excluded if identification by reference to a
19 clearly-defined category is readily possible." In his
20 view, requests should be limited based upon an
21 assessment of whether the number of documents sought is
22 oppressive rather than an automatic prohibition of
23 requests totalling in the hundreds.
24 It might well be that a type of
25 specifically-identified document could easily be
1 produced, even if hundreds of such individual documents
2 existed. However, a request seeking scores of
3 different kinds of documents, resulting in the
4 production of hundreds or thousands of documents,
5 clearly cannot.
6 In any case, the Appeals Chamber's 29 October
7 1997 judgement, both in plain language and spirit,
8 requires that requests must identify a limited number
9 of documents, and this language must be accorded some
10 meaning in the context it was written.
11 To the extent that Judge Shahabuddeen's
12 opinion would eliminate this requirement, interpreting
13 it out of existence and transforming the Article 29(2)
14 binding order into a general investigatory tool, it is
15 at odds with the Appeals Chamber's unanimous 29 October
16 judgement and with the governing rules of international
17 law and cannot control.
18 Turning to the actual requests in the 16
19 April 1997 application, the scope of these requests
20 again is breathtaking. Altogether, as I mentioned,
21 there are 902 separate requests, each demanding all
22 documents in particular categories, a number of these
23 categories repeat requests already rejected by the
24 Trial Chamber. For instance, in the 24 July 1998
25 application, the Prosecutors sought all records of
1 various sorts relating to five meetings between
2 Croatia's President Tudjman --
3 JUDGE MAY: You're going to refer to some
4 specific matters. You don't, by any chance, have it in
5 writing, do you, those which you say are repeating
6 requests which have been rejected?
7 MR. CASEY: I do not have it in -- I have a
8 couple of examples. I do not have it completely
9 written up. I would be pleased, certainly, to provide
10 that to the Court, but I do not have it with me now.
11 JUDGE MAY: Refer us, then, to those that you
12 say are repeated.
13 MR. CASEY: Very well.
14 For example, in category 9(d) of the original
15 request, the Prosecutor sought -- or rather that is in
16 request 9, the Prosecutor sought records of various
17 sorts relating to five meetings between President
18 Tudjman and, among others, Mate Boban in the city of
19 Split on 5 November 1993, and that is category 9(d).
20 Now the OTP wants all records again of
21 various times of meetings between Mate Boban and
22 President Tudjman over a nearly three-year period of
23 time, addressing any of 22 subject areas, including,
24 quote/unquote, "the war, conflict, or hostilities in or
25 upon any territory or area of the former Yugoslavia."
1 JUDGE ROBINSON: What number request is
3 MR. CASEY: That is item 4 of the subject
4 matter group, and the request is -- I'm sorry, it's D
5 of the subject matter group and request 4 of the
7 Indeed, the inclusion of this subject matter
8 area, supposedly a limiting factor, has, in fact,
9 effectively eliminated any limiting factor contained in
10 the other 21 subject matter categories referring to the
11 conflict or hostilities in the former Yugoslavia.
12 Croatia has not, of course, had the
13 opportunity to review the OTP's relevance claims, but
14 it is inherently incredible that each of the documents
15 called for by this request could be deemed relevant to
16 Mr. Kordic's trial.
17 Similarly, in its original application, and
18 this is category 1 of the original application, the OTP
19 sought, among other things, orders, communications,
20 plans, memoranda of understandings and directives from
21 President Tudjman to Defence Minister Susak, or their
22 representatives, directed to Mate Boban and his
23 representatives from May 1st, 1992, to January 1st,
24 1994 --
25 JUDGE MAY: Just slow down, please.
1 MR. CASEY: Sure. -- regarding five subject
2 matters including, among others, the presence, use and
3 deployment of HV military police and intelligence
4 personnel in Bosnia and Herzegovina, and that was
5 subpart A, and under subparts B and C, the Prosecution
6 requested documents relating to the military and
7 political goals and objectives of the HV and HVO
8 military police and intelligence forces in Central
9 Bosnia, including the municipalities of Vitez,
10 Busovaca, Foca and Kiseljak.
11 In the April 16th application, the OTP has
12 asked, and this would be subject matters F, G and H,
13 when put together with request, I believe it is, 3
14 or -- yes, that would be actually requests 4, 5 and 6
15 and 7 through -- and 7 and 8, or, I'm sorry, no, 7 and
16 then 10 and 11, requesting documents including orders,
17 directives, correspondence and et cetera from President
18 Tudjman or Minister Susak to Mate Boban during a
19 three-year period the 1st of June, 1991, to 31 March
20 1994, dealing with the presence, use and deployment of
21 Croatian government forces or personnel on or within
22 the territory of Bosnia and Herzegovina, and that is
23 subject matter F, or the military and political goals
24 of Croatian government forces or Bosnian Croat forces
25 within the whole territory of Bosnia and Herzegovina,
1 and that is in subject matters G and H.
2 In fact, the OTP is not merely on a fishing
3 expedition here, it is using drift nets. Of the 41
4 principle categories of documents requested by the OTP,
5 only 13 involve materials sent or received or kept,
6 perhaps, by officials of the Croatian government,
7 materials most likely to be in the Croatian
8 government's possession. The balance of the OTP's
9 requests involve individuals who, at the relevant
10 times, were not officials of Croatia but either of the
11 Bosnian Croat entity or the HVO. Seeking these
12 materials from Croatia is merely a shot in the dark.
13 Indeed, these are precisely the kinds of
14 material one would expect to find in the HVO or
15 Herceg-Bosna archives, which, as I understand it, were
16 indeed raided by the OTP in September of last year. If
17 the OTP already has access to this material, it is
18 entirely inappropriate to seek duplicates from
20 Could the OTP's request be made to meet the
21 standards articulated by the Appeals Chamber? In its
22 current form, no. Could a request that meets those
23 standards be formulated? Of course.
24 If, for the moment, we jettison the
25 paraphernalia of discovery, the interminable
1 definitions, the indicatings (sic), recordings,
2 evidencings (sic) and discussings (sic), and focus on
3 individual documents that the Court could perhaps deem
4 relevant to the accuseds' trial, it is possible the OTP
5 largely did just this in the 21 July 1998 order to
6 which Judge Shahabuddeen's opinion was attached. But
7 what the OTP is not entitled to do is use Article 29(2)
8 as a means to obtain access to hundreds of categories
9 of undefined documents in order to determine whether
10 anything of use or interest may be found therein. That
11 is what the OTP has again attempted to do in the 16
12 April 1999 order, and the Trial Chamber should
13 accordingly reject that application.
14 Thank you, Your Honour.
15 JUDGE ROBINSON: Mr. Casey, have you
16 exhaustively listed all those requests which you say
17 are repeats and, more significantly, were disallowed
18 originally by the Chamber?
19 MR. CASEY: Your Honour, those are the ones
20 that struck me when I was preparing. I have not gone
21 through every category to determine which are
22 duplicated. As I said, I would be pleased to do that
23 for the Court, if you wish, and submit something in
24 writing to that effect.
25 JUDGE MAY: Well, it's a pity that you
1 didn't, Mr. Casey, if you're going to rely on the
2 point. It would have been much better to have handed
3 us a document so that we had it before us.
4 MR. CASEY: Yes, Your Honour. I'm sorry, I
5 should have thought of that.
6 JUDGE MAY: Very well. We'll hear the
8 MR. NICE: Certainly, there's a measure of
10 Just to remind the Chamber of what it's
11 probably already recollected, the categories excluded
12 in respect of the earlier application were excluded, I
13 think, on the grounds of relevance, and there was an
14 application by us to reconsider, which was rejected as
15 a matter of principle by the Chamber. We were out of
16 time to deal with the matter on appeal.
17 The matter was brought back to you in a new
18 form, with absolutely nothing to stop that being done.
19 The Chamber, in our respectful position, is in a
20 position to consider it afresh on its merits.
21 If one turns to attachment 1 of our
22 application, which is the categorisation, as it is
23 said, of topics, this in part responds to one of the
24 earlier objections by the State of Croatia to an
25 earlier formulation in the request, where it was said
1 that the subject matter of any meeting or communication
2 was so widely defined that it could relate either, I
3 think, to lunch or possibly to traffic tickets,
4 something to that effect.
5 Seeing the theoretical strength of that
6 argument, it seemed appropriate for us to attempt to
7 define what is and what everybody knows is at issue
8 here. Thus, attachment 1 identifies topics in a
9 sensible and coherent way and hopes, by those topics,
10 to cover the whole territory with which, as everybody
11 knows, we are interested.
12 And when I say "the territory," which, as everybody
13 knows, is that in which we are interested, I'm saying
14 no more than the obvious. The State of Croatia well
15 knows -- and it's important to have this in mind, from
16 the way this case has been presented from its opening
17 and since -- what is said to be significant in the
18 meetings and communications between Croatia and those
19 in Bosnia. It has two absolutely fundamental
20 significances: One, international armed conflict; two,
21 the role, the function, the authority, the purpose, the
22 intention of the defendants, but in particular of the
23 defendant Kordic.
24 It's not a difficult story to narrate or to
25 understand, and accordingly, if the Chamber will be
1 good enough to come back and look at five pages before
2 where we set out the documents that are sought, it's
3 perhaps helpful to put oneself in the mind of or in the
4 position of those dealing with this matter in Croatia,
5 knowing the case raised against them -- not against
6 them; against Kordic, and the issues that concern
7 them -- was Kordic here to take instructions, to take
8 soundings, to be advised on the conduct of affairs in
10 Supposing the answer is yes, the question
11 would then be: "And where is that documented?" They
12 will know.
13 Let us look, therefore, at paragraph 4, which
14 I think has been referred to by Mr. Casey -- or 3 --
15 sorry, 3 is better; I'm grateful to Mr. Scott.
16 They will know whether communications with
17 and between Kordic and Franjo Tudjman were dealt with
18 by what could be described as orders, directives,
19 correspondence, letters, notes, or reports, and they
20 will also know that if we limit ourselves, for example,
21 to letters or to orders, and that if something can be
22 properly categorised as a directive or a plan or a
23 message, then, as it were, we would have failed by our
24 particularity. So we absolutely have to cast our
25 description sufficiently wide to cover all the
1 categories of material as it may be described.
2 But the underlying issue is a simple one.
3 There were communications, they inevitably were
4 documented, and finding those documents, frankly, can't
5 be that difficult to those who know that they were
6 created. Describing them is inevitably more difficult
7 for us, but the description we provide is not onerous
8 in any sense and certainly doesn't lack sufficient
10 Likewise, Number 4, where it says minutes,
11 notes, records, audio recordings, photographs, video
12 recordings of or related to meetings between Franjo
13 Tudjman and Mate Boban, the same significance: What is
14 going on as between these two parties that concern Mate
15 Boban with his role in Bosnia, how are they recorded?
16 Yes, they were recorded. We have to ensure that the
17 words we use don't allow a record to slip between our
18 definitions so that the party concerned, knowing full
19 well what's at stake, is able to say, "No, they've used
20 the word 'note' and 'record,' and this is a minute, so
21 we won't provide it."
22 As was explained in our application, the
23 apparent number and length of the list of requests and
24 its details boils down to a very much shorter and
25 smaller real target area. It's done by a number of
1 plainly relevant individuals. It's done by the
2 combination of those individuals together, and it seeks
3 records, that the state of Croatia will know how it
4 describes, covering those issues. They are plainly
5 relevant, and the request we have made falls fair and
6 square within the requirements of the Blaskic order.
7 Incidentally -- I'm grateful to Mr. Scott
8 again -- in our response of August of last year, but I
9 can just read it to you, there was this paragraph,
10 paragraph 4 -- I'll read it slowly -- "The former chief
11 of the Croatian army has recently confirmed that many
12 if not all the documents which the Prosecutor has been
13 seeking since the 15th of January, 1997, are in the
14 archives of the Ministry of Defence of the Republic of
15 Croatia in Zagreb."
16 In an article in the 27th of September, 1998,
17 edition of the Croatian newspaper Slobodan Dalmacia
18 concerning the recent execution of search warrants in
19 Bosnia and Herzegovina looking for many of the same or
20 similar documents or information, General Janko Bobetko
21 is quoted as saying: "I can't understand why they are
22 looking for documents in Herzegovina and Central Bosnia
23 when all the documents are kept in the archives of the
24 Ministry of Defence in the Republic of Croatia."
25 And that, I think, just responds to the point
1 suggested that we've raided documents elsewhere. I
2 think what Mr. Casey was referring to was the execution
3 of a search warrant that was lawfully authorised, and
4 publicised as such, and there is no question of there
5 being a search here for duplicates of documents already
6 available. That would be a waste of everyone's time.
7 If this material that we assert must exist in records
8 as we have, we hope, succinctly but accurately
9 described, if such material was already available to
10 us, we wouldn't be seeking it elsewhere. It isn't, and
11 it must be available there, and that's why we seek it.
12 Mr. Scott has prepared, in relation to the
13 possible arguments on relevance that have been, I
14 think, touched on by Mr. Casey, a small bundle of
15 exhibits, and if it can help further with the question
16 of whether these documents are too broad for the
17 categories, if there is any other issue on the question
18 of repetition of our request, may he just present this
19 small bundle of exhibits?
20 JUDGE MAY: Yes, Mr. Scott.
21 MR. SCOTT: Thank you, Your Honour. If I
22 could hand the usher several documents, I think there's
23 four, so perhaps for the Court initially -- and I'm
24 sorry if I didn't make enough initially -- but there's
25 one for Mr. Casey, and there's a second bundle as well,
1 so there are two bundles of four.
2 Allow me to start, only in passing, with the
3 first one, which is titled "Report," and I know we're
4 in open session, Your Honour, and I'm not going to make
5 any reference to the content of the document other than
6 this: The representations of arguments made by
7 Mr. Casey to this Court, to this Chamber, about the
8 level of cooperation and assistance in the Blaskic
9 Chamber, we could not possibly disagree with more
10 strongly, and this document in particular will indicate
11 some additional background to this Chamber on the true
12 state of Croatia's cooperation with this Tribunal. And
13 I'll leave it at that for the moment, but this position
14 has gotten to the point where it is misleading to this
15 Court for this Chamber not to have this information in
16 front of it.
17 As to the separate packet of exhibits, what I
18 want to touch on very quickly is, in part, Mr. Casey's
19 position that some of the material we asked for in our
20 request might, on the surface, appear to be more likely
21 found in the Federation of Bosnia and Herzegovina. As
22 I hope the court is beginning to understand more all
23 the time -- and I'm sure it does, forgive me if I
24 suggest otherwise, I'm sure the Court does
25 understand -- it's the Prosecutor's position, and we
1 believe the evidence shows now, and will ultimately
2 show at the conclusion of trial, that there was a deep
3 and indeed virtually incestuous relationship between
4 the Bosnian Croats and the government of Croatia. On
5 one day you hear from one group that the documents are
6 in Croatia, and the next day, literally,
7 representatives from the government of Croatia come
8 here and tell you, "They're in the Federation."
9 Well, they're somewhere. One group says
10 they're in Croatia, and the next group says they're in
11 the Bosnian Croat side of the Federation. We are
12 therefore required to seek them from both places.
13 As an example, the first document of the 22nd
14 of February, 1993 -- this is simply as a sampling.
15 This is a communication from an HVO commander to an HV
16 officer -- the 4th Split Brigade is a regular Croatian
17 army unit, an HV unit, stationed in Split -- concerning
18 the death of an HV soldier, not on the borders of
19 Croatia and Bosnia, but deep in Central Bosnia, in
20 Gornji Vakuf, an area that is directly relevant to this
21 case. This HV soldier was killed in fighting between,
22 as this HVO officer says, the so-called
23 Bosnia/Herzegovina army and the HVO, was wounded by a
24 sniper bullet and ultimately died in fighting. This
25 was an HVO soldier in Central Bosnia.
1 The next document, dated the 16th of May,
2 1993, is a similar letter or communication from
3 actually the same HVO officer, Mr. Tokic, also
4 addressed to a regular Croatian army HV unit, the 2nd
5 Brigade of the Croatian army, requesting to use "your
6 officer," that is, your regular HV army, Croatian army
7 officer, "Mate Kunkic, at our disposal in the zone of
8 responsibility of our brigade." Where is that
9 brigade? Where is Mr. Kunkic, an officer of the
10 Croatian army, located? Gornji Vakuf, in Central
12 The letter goes on, and I won't take the
13 Court's time to read it, imploring the HV to leave this
14 officer in Central Bosnia, for he has been of great
16 For instance, at the last sentence of the
17 next-to-last paragraph, Mr. Tokic makes this
18 statement: "There is no need to say that since last
19 April, in these areas, he" -- that is, Mr. Kunkic --
20 "and his Alpha Force unit have considerably assisted
21 in the organisation of our headquarters and later in
22 the brigade. This HV army officer has considerably
23 assisted in Central Bosnia." Alpha Force was an HVO
24 force in Central Bosnia, the evidence will show, and
25 apparently under the command of an HV officer.
1 Why, again, is -- why do we ask for
2 documents, for instance -- one moment, Your Honour --
3 for instance, in paragraph 28 of our request, of our
4 annex -- and I will give the Court a moment to find
5 that, because it's important -- in terms of our annex
6 of requested items, as an example, paragraph 28.
7 The evidence will show, and I don't think
8 there will be any bona fide dispute about this,
9 Slobodan Praljak was the chief of staff, the senior
10 officer of the HVO, throughout Herceg-Bosna in large
11 parts of 1993. So Mr. Casey may say, well, why are we
12 asking for these documents from Croatia? Wouldn't the
13 Federation -- wouldn't the Bosnian Croat Bosnian side
14 of the Federation, the very -- have these documents?
15 Well, the evidence will show that Slobodan
16 Praljak was in fact a professional HV army officer --
17 had been -- had been moved from the HV in Croatia to
18 become the chief of staff of the HVO during most of
19 1993. And the one document, just simply as a sampling,
20 that I've given the Court, dated the 6th of November,
21 1992, the next one in the packet, is, in fact, an order
22 signed by Major-general Slobodan Praljak to all members
23 of the HVO and BH army, dated the 6th of November,
25 Now, what happens to this very same
1 Mr. Praljak, that -- and I go to the last exhibit and
2 finish with this, Your Honour -- the last exhibit in
3 this packet, which is the one that was referred to
4 earlier, now copied and provided to the Court -- an
5 order from the Minister of Defence of the state of
6 Croatia, Mr. Susak, dated the 21st of December, 1993.
7 And who is it, who is it that Mr. Susak, the Minister
8 of Defence of the state of Croatia, puts in charge of
9 the archive for the Croatian Ministry of Defence?
10 For the Croatian -- an archive, again, likely to have a
11 tremendous number of directly relevant documents for
12 this Court that this Court should be able to see, that
13 this court should examine -- and who does he put in
14 charge of this? Slobodan Praljak, the same general who
15 had just, days before this order -- days before this
16 order -- was in Bosnia, was the chief of staff of the
18 That is the reason why we have to ask for
19 these documents from the Federation and from Croatia,
20 because, I'll be very blunt with the Court, we can't
21 tell for sure which place they are. We think there are
22 reasons to believe that they are in both places or in
23 one place. But given the relationship between the
24 Bosnian Croats and Croatia, it is constantly a shell
25 game. You lift the shell, and where is the pea? And
1 the only thing the Prosecutor can do is lift all the
2 shells until we find it, and so this Court can consider
3 the evidence.
4 Thank you, Your Honour.
5 JUDGE MAY: Mr. Casey, if you want to comment
6 on the material which the Prosecutor has put in, then
7 you may do so.
8 MR. CASEY: Thank you, Your Honour, just a
9 few words.
10 To begin with, with respect to the report in
11 the other Trial Chamber, I have stated that Croatia has
12 indeed cooperated. I have never suggested that the
13 Office of the Prosecutor is satisfied with that.
14 Indeed, the Prosecutor, Justice Arbour, any time she
15 can find a crowd, seems to assert that Croatia has not
16 cooperated to her satisfaction. Croatia's position is
17 that it is not required to cooperate to her
18 satisfaction; it is required to carry out its
19 obligations to the Security Council, and through that,
20 to the international Tribunal.
21 With respect to the documents that the
22 Prosecution has provided with respect to their claims
23 of relevance, I'm not going to try to analyse them,
24 since this is the first time I've seen them. I'm not
25 even quite sure whether that would be appropriate,
1 since Croatia's interests in this matter do not include
2 whether the Prosecutor can or cannot prove its case.
3 Croatia, however, has stated before the other
4 Trial Chamber that it was involved in Bosnia, that it
5 did give help to the HVO. It has stated that a number
6 of both officers and regular private soldiers who were
7 serving in the HV, many of whom indeed had come from
8 the Herzegovinian areas of Bosnia when the war began
9 with Serbia to fight in the Republic of Croatia's
10 forces, when that war spread to Bosnia returned there
11 and fought for the HVO. Some of those individuals
12 later returned to the HV, General Praljak, I believe,
13 being an example of that. All of that is indeed
14 documented in the materials given to the Blaskic Trial
16 The extent to which the Prosecutor wishes to
17 argue how -- what implications these particular
18 documents may have is really a matter more, I think,
19 for the Defence as opposed to Croatia. However, with
20 respect to the bearing these documents may have on the
21 relevance of the requests that the Prosecutor has made,
22 to some extent they suggest ways in which the
23 Prosecutor's requests can be narrowed.
24 If indeed the Prosecutor believes that it can
25 show that there was a, quote/unquote, "international
1 armed conflict" in Bosnia in accordance with the legal
2 definition of that under international law, then,
3 indeed, orders from Croatian regular army officers to
4 the HVO could perhaps provide some evidence of that.
5 That would be for the Court to determine. They may
6 also not prove that, but it is at least conceivable
7 that such evidence could be found in such orders.
8 That being the case, it would seem incumbent
9 upon the Prosecution to ask for orders from relevant HV
10 officers to relevant HVO officers during the period of
11 time in question, as opposed to trying to sweep in
12 every piece of paper that may have passed between
13 various individuals over a three-year period. In fact,
14 if the Prosecution has before it a specific legal issue
15 it is trying to prove, it is not all that difficult to
16 figure out the kinds of materials it will need to prove
17 it. Moreover, defining order --
18 JUDGE MAY: Remember the interpreters,
20 MR. CASEY: I am sorry.
21 Defining order also ought not to be that
23 An order is a written directive from one
24 individual to another, requiring that some action be
25 taken. There is obviously always a problem or always a
1 perceived problem that if you don't say, you know, "all
2 orders, directives, communications," you may miss
3 something. But if, in fact, you're only looking for
4 very specific things, which is, in fact, all they are
5 entitled to, then it should be quite easy to craft a
6 request along with specific definitions that will
7 produce -- assuming they exist, and I can't represent
8 that one way or the other obviously -- documents that
9 may inform them of the situation as it existed in
11 And one other point: Croatia does not
12 maintain and I certainly did not mean to suggest that
13 there is no archive in Croatia, either in the Ministry
14 of Defence or elsewhere. Of course there are
15 archives. I think the question before the Tribunal
16 and, indeed, that has been before the Court now for two
17 years or more is whether the Prosecutor is entitled to
18 have free run in that archive just to see what might be
19 there of interest to it. Of course, it is the position
20 of Croatia that it is simply not entitled to that.
21 Thank you.
22 JUDGE ROBINSON: Mr. Casey, I think one has
23 to be careful not to construe the Blaskic judgment as
24 proscribing requests in respect of categories of
25 documents. What it proscribes is a request in respect
1 of a broad category, and the mere fact that a
2 particular request begins with the phrase "all
3 documents," et cetera, does not by itself render that a
4 broad category, because the request may go on to
5 include what I might term sufficiently limiting factors
6 by reference to names, places, and to other
7 characteristics which would render the request
8 sufficiently specific in terms of a category to meet
9 the criterion set out in the Blaskic Chamber. So I
10 merely want to say that you have to be careful not to
11 misconstrue the Blaskic decision in that respect.
12 MR. CASEY: Well, Your Honour, I agree. I
13 believe it is possible to formulate a request that
14 seeks specific documents beginning with the words "all
15 documents" and even in a categorical nature. I think,
16 in fact, that one example of that was found in the
17 order that the Chamber issued in the Cerkez case that
18 is now in appeal. In its papers on appeal, Croatia has
19 made very clear that a number of those requests it
20 believes do meet the standard. I don't have it before
21 me, but as I recall, one of those requests asked for
22 all orders, directives -- there was generalised
23 language, appointing Mr. Cerkez a commander of a
24 particular unit. Well, that request clearly meets the
25 standards. The Prosecutor didn't know what the
1 document is called appointing an individual to command
2 a particular unit, is it a commission, is it a
3 directive, is it an order, and so they properly
4 described it in a categorical nature, and that clearly
5 meets the standards of the October 29 decision.
6 However, in interpreting the phrase "broad
7 category" as used by the Court in that decision, it has
8 to be interpreted in context, both in terms of the
9 other requirements that the Court there established for
10 binding orders as well as in the context of that
11 litigation itself.
12 When the Court wrote that you couldn't ask
13 for broad categories, what it had before it were a
14 series of broad categories that sought unlimited
15 numbers of documents that were not specifically
16 defined. It said that, "No, you have to limit the
17 number of documents you are looking for and you cannot
18 ask for broad categories." Because the Court didn't
19 simply say, "Categories are forbidden," does not
20 suggest, I would submit that, that any category is
21 permissible, just so long as the Prosecutor can say,
22 "Well, we can't really tell you, we don't know what
23 documents, so give them all to us and then we'll decide
24 what we need." That is not what rule the Court laid
25 down there.
1 This, the Prosecutor's current application,
2 frankly, does not comport -- it requests, indeed, it
3 requests broad categories. Indeed, in looking at it,
4 the only one of these requests that perhaps comes close
5 as a substantive matter, if not in form, I believe, is
6 number 40, which searches or is asking for orders,
7 resolutions, declarations, various things regarding the
8 award of decorations or medals to Mr. Kordic.
9 Now, presumably, they don't know what again
10 the documents awarding such things are called, and so
11 we can tell from that that what they want to know is
12 were decorations awarded and how was that done, and it
13 may well be possible to produce a limited number of
14 documents with respect to that.
15 I think you have a very hard time narrowing
16 the other categories in that fashion.
17 Thank you.
18 (Trial Chamber confers)
19 JUDGE MAY: In the light of the submission
20 made on behalf of Croatia, that there are matters in
21 the new request which repeat matters which have already
22 been the subject of an order, we wish, at the least, to
23 consider whether that submission has merit or not. In
24 order to do so, we require a list of those requests in
25 the new application which it is alleged are a
1 repetition of earlier requests. Mr. Casey should have
2 provided that. He said that he's prepared to do so,
3 and we shall order it. Seven days, if you please.
4 MR. CASEY: Your Honour, if I could perhaps
5 have a few more days. Substantive materials that we
6 prepare have to be reviewed by the client in Zagreb,
7 and that may take a few extra days.
8 JUDGE MAY: How many days are you asking
10 MR. CASEY: Perhaps a week from this coming
12 JUDGE MAY: Ten days --
13 MR. CASEY: Thank you, Your Honour.
14 JUDGE MAY: -- from today's date, the
15 Prosecutor to have seven days to respond thereafter.
16 MR. NICE: Yes, we'll comply with that.
17 Can I just touch on one point that I ought to
18 have dealt with earlier?
19 The request that is made is couched in the
20 present tense, "items in the possession of the party."
21 I've already made the point, in the most general of
22 terms, that the Chamber may always be interested in
23 knowing what items are not only possessed but what have
24 been possessed. It would be open for it to cast any
25 order it ultimately makes to include what has existed.
1 Indeed, there's this general problem that
2 arises in these cases where materials are produced, for
3 example, in the course of a defence, something that's
4 been observed in the Blaskic case, and where the
5 provenance of the documents isn't known. Sometimes I
6 think it can be even helpful for a party such as
7 Croatia, if any order is to be made, to be under a duty
8 to provide material within categories if it comes into
9 its possession subsequently, to provide an account of
11 Sorry not to make this point earlier, but I
12 was reminded of it in the course of the hearing and
13 hadn't therefore thought of it before.
14 One of the problems that can arise is if a
15 party to a case, in the course of his defence, or a
16 witness on behalf of defendant produces a document
17 late, is asked, "Well, where did that come from," then
18 it's very late to go on the chase of the potential
19 parties, "Was it this date, was it that date, was it
20 somebody's private election," and so on, and it would
21 help a general enquiry if one potential source of such
22 late discovered documents was on notice to provide any
23 information of material coming to it after the time of
24 a particular order.
25 So what we've couched simply in the present
1 tense is something that might conveniently and
2 helpfully be expanded to take care of what has been in
3 possession of the party and also to deal with what may
4 come into possession of the party.
5 I see Mr. Casey wants to respond.
6 MR. CASEY: Your Honour, if I might respond
7 to that just for a moment, I think that that, in fact,
8 is the standard of discovery: Anything in your
9 possession or that may come into your possession. I
10 believe it is inconsistent with the Appellate Court
11 judgement not provided for in Article 29(2). I think it
12 however does point out that the nature of the
13 Prosecution's business here is to conduct discovery and
14 not to obtain a binding order consistent with the
15 Appellate Court's decision. Thank you.
16 JUDGE MAY: We'll adjourn.
17 --- Whereupon the hearing adjourned at
18 12.40 p.m., sine die.