1 Thursday, 2 December 2004

2 [Motion hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.04 p.m.

6 JUDGE ROBINSON: Today we will continue with the submissions in

7 this matter. Before we continue, however, may I say that although the

8 matter has been set down for hearing tomorrow, the Chamber intends to

9 conclude hearing submissions today, and we ask for the cooperation of the

10 parties. Each party has been assigned 45 minutes. There is no obligation

11 to utilise all that time, and many of the arguments have already been

12 made, and instead of repeating them, you can simply say that you adopt

13 them. Nonetheless, there is no intention on the part of the Chamber to

14 restrict any speaker.

15 Is there a problem?

16 So we will hear from Mr. Johnson for the United States.

17 MR. JOHNSON: Thank you, Your Honour. Before I begin, I just

18 wanted to briefly pick up a point yesterday that was raised about the

19 status of NATO. My understanding is that NATO has prepared a letter that

20 they have either sent to the Court or that will be on its way today, so I

21 just want to alert Your Honours to that.

22 JUDGE ROBINSON: Thank you very much, Mr. Johnson.

23 MR. JOHNSON: The United States appreciates the opportunity to be

24 heard by Your Honours on this important matter. The position of my

25 government is detailed in the written submissions we provided on February

1 28, 2003. In keeping with Your Honours' decision yesterday, I will

2 endeavour to keep this presentation in open session.

3 The argument I will advance this afternoon is straightforward.

4 First, the Defence requests its frame to directly, unreasonably and

5 unnecessarily implicate issues of extraordinary national security

6 sensitivity. The Defence yesterday characterised the request as an

7 extraordinary one, and on at least that matter we agree.

8 We're asking you to consider the national security aspect of it,

9 not as a basis for rejecting the request outright, but because it

10 underscores the need to hold the Defence to the high standards in meeting

11 the requirements of Rule 54 bis. Also, the Tribunal's Rules and

12 jurisprudence provide an established and workable framework for protecting

13 a state's national security while facilitating the provision of

14 information to either the Prosecution or the Defence.

15 Second, as outlined by my colleagues yesterday, the Defence has

16 not met the requirements of Rule 54 bis, by failing to take reasonable

17 steps to obtain the requested information cooperatively, failing to

18 adequately identify the information to which the application relates --

19 THE INTERPRETER: Kindly slow down for the interpreters, thank

20 you.

21 JUDGE ROBINSON: Did you hear that, Mr. Johnson? The interpreters

22 are asking you to slow down.

23 MR. JOHNSON: You've heard the request could be reframed so as to

24 both minimise the national security concerns and better meet the

25 requirements of the Rule.

1 Finally, the United States has offered to share the information

2 with the Defence on this basis, and the Defence has refused. Because the

3 Defence has failed to meet the prerequisites for an order under Rule 54

4 bis, we submit that the application must be rejected.

5 As a threshold matter, we believe it is useful to review the

6 framework that the Tribunal has established to make it possible for

7 governments to provide relevant information in a way that safeguards

8 national security equity. This framework underscores the obligation of a

9 requester to work cooperatively with the requested state. And it also

10 explains why requests that impinge on national security should be held to

11 the high standards in meeting the requirements of the Rule.

12 There is no dispute among the parties that the Defence request

13 involves matters of core national security sensitivity. The Defence

14 concedes in its application that its request "creates a difficult tension"

15 involving national security interests. Defence counsel's e-mail to the

16 United States on August 14, 2002, which is contained in the annex to our

17 submission, admitted, "Frankly, I expect that this request is going to

18 create some tension between the right of the government to protect its

19 intelligence information and the right of the accused to discover relevant

20 material."

21 This is immediately evident by looking at the wording of the

22 request. The first and second parts explicitly reference intercepts, or

23 signals intelligence. The third part in referencing "sources of

24 information working on your behalf," seeks access to human intelligence

25 reporting.

1 None of the three parts of the request specifies beyond a

2 reference to the accused's name the content of the information sought.

3 Rather, it is --

4 THE INTERPRETER: Kindly slow down for the interpreters.

5 JUDGE ROBINSON: The request has been repeated for you to slow

6 down.

7 MR. JOHNSON: -- of the information itself. Framing a request in

8 this way not only contravenes the specificity, relevance, and other

9 requirements of Rule 54 bis but also unnecessarily exacerbates the acute

10 national security concerns.

11 There is no doubt that information requests centred on

12 intelligence sources and methods go to the heart of state security and

13 sovereignty. I'd like to elaborate a bit on this point in light of Judge

14 Bonomy's question yesterday.

15 The state's ability to protect such sources and methods, including

16 not to reveal their existence, scope, and use is fundamental to their

17 effectiveness. When such information is released, it compromises not just

18 the information itself but the source or method that was used to gather

19 it. With respect to intercepting communications, the issue is not, as

20 Judge Bonomy pointed out yesterday, whether this type of capability exists

21 generally; rather, it is whether it has been applied in particular

22 circumstances, how it is applied, its effectiveness, the degree to which

23 it is used and the scope of that capability. With respect to human

24 intelligence, it relates to the protection of sources whose lives could be

25 endangered by the release of the information they provide.

1 Such a compromise of these intelligence methods in turn can

2 jeopardise the ability of a state to collect information and protect

3 itself against terrorists and other adversaries.

4 The Tribunal, in its Rules and jurisprudence, has consistently

5 strived to address the difficulty tension referred to by Defence counsel

6 by providing for information sharing in a framework that protects national

7 security equities and rigorously scrutinises requests that threaten them.

8 As this Chamber is aware, Rule 70 prohibits the Prosecution from

9 disclosing information provided on a confidential basis. Under this Rule,

10 the Trial Chamber may not compel a witness to answer any question relating

11 to the origin of the information if the witness declines to answer on the

12 grounds of confidentiality.

13 The Appeals Chamber, in ruling on the interpretation and

14 application of Rule 70 in the Milosevic case, explained the necessity of

15 these protections. The Rule, it said, was "Designed to encourage states

16 and others to assist the Prosecution or the Defence." It encourages

17 cooperation by "guaranteeing information providers that the

18 confidentiality of the information they offer and of the information

19 sources will be protected. Without such guarantees of confidentiality, it

20 is almost impossible to envisage this Tribunal being able to fulfil its

21 functions."

22 So how do the rigorous protections of confidential information and

23 the sources of that information afforded to states under Rule 70 context

24 relate to Rule 54 bis? Or put differently, how is it that the Tribunal

25 will go to extraordinary lengths to protect sensitive information in the

1 Rule 70 context, even to the degree of curtailing judicial inquiry into

2 the information itself but that same information can be put at risk when

3 subject to a request under Rule 54 bis. We would submit that the answer

4 lies in the Blaskic case. There, the Appeals Chamber distinguished

5 between cooperative and compulsory approaches in dealing with states. It

6 adopted the view that "cooperative process should wherever possible be

7 used, ... it should be used first, and ... resort to mandatory compliance

8 powers ... should be reserved for cases in which they are really

9 necessary."

10 Now, under this paradigm, the state must be given every reasonable

11 opportunity to avail itself to the protections afforded under the

12 cooperative process governed by Rule 70 before it is confronted with a

13 compulsory process under Rule 54 bis. Otherwise, Rule 70 would be largely

14 an empty letter, since either the Prosecution or the Defence can skip over

15 the cooperative process and go directly to a compulsory one.

16 It seems to us that it would be incongruous for a situation to be

17 created where states are entitled to clear protections safeguarding their

18 national security interests when they share information cooperatively with

19 the Prosecution or the Defence under Rule 70. But for them to be deprived

20 of such guaranteed protection because they were precluded by the requester

21 from entering into a cooperative framework.

22 It is for these reasons that Rule 54 bis and the Blaskic decision

23 requires a requester to take reasonable steps to obtain information

24 cooperatively from a state.

25 As my colleagues have detailed, the Defence has made at best a

1 token effort at working with states. In the case of the United States,

2 our protracted efforts at trying to work with Defence counsel

3 cooperatively are detailed in the annexes to our written submission. A

4 brief review illustrates both our commitment to trying to work

5 cooperatively and the Defence's predisposition to move to a compulsory

6 process.

7 The United States responded to the Defence's original request by

8 proposing to hold a meeting to discuss it and the modalities that we have

9 used successfully in responding to past Defence requests.

10 On August 14, 2002, the Defence rejected this offer, foreshadowing

11 that the real desire was to seek a compulsory order. The Defence said,

12 "It would be better for you to put any questions or concerns about our

13 request in writing rather than arranging a meeting." This is "So that the

14 ICTY Trial Chamber can have an accurate record of our efforts to obtain

15 voluntary compliance prior to seeking a binding order." This is before

16 our dialogue has even begun.

17 A week later, the United States urged counsel to reconsider,

18 explaining that such discussions in our experience were "A constructive

19 first step in formulating a mutually agreeable approach towards providing

20 requested information to Defence counsel in the manner that protects

21 important US government equities relating to sensitive information."

22 On August 22, the Defence agreed to the proposed meeting and

23 provided the assurance that, "We want to do whatever it takes to cooperate

24 with you in getting access to information relevant to General Ojdanic's

25 case."

1 On September 19th, the United States met with counsel. We

2 detailed the approach used in successfully entering into

3 information-sharing relationships with other Defence counsel. We

4 reiterated our willingness to cooperate similarly. We emphasised that

5 while we would not confirm or deny the existence of the requested

6 intercepts, we would search all, all sources for information responsive to

7 a proper request and do our utmost to provide responsive information in

8 some form.

9 On September 28, 2002, the Defence submitted a revised and more

10 narrowly focused information request. The revised request excluded

11 statements of a personal or social nature, focused on statements relating

12 to Kosovo, and it focused on statements made by the accused rather than

13 anybody else in Yugoslavia. Although improved, the revised request

14 remained deficient in a number of respects, including by continuing to

15 focus on the means by which the information sought was collected and

16 memorialised rather than its consent, rather than the substance of the

17 information itself.

18 While this search was ongoing, however, Defence, contrary to its

19 earlier assurance about doing "Whatever it takes" to cooperate abandon

20 that process. On November 13th, Defence filed the present application and

21 reverted to its original, unfocused, and intrusive request language.

22 In filing such an application only six weeks after presenting its

23 revised request and in the midst of US government efforts to respond to

24 it, the Defence demonstrated that its interactions with the United States

25 were less for the purpose of arriving at a cooperative framework to obtain

1 the requested information than for documenting their superficial efforts

2 to satisfy this requirement of the Rules.

3 Despite the application, the United States continued to process

4 the request. On January 24, 2003, the United States informed the Defence

5 that we had identified potentially responsive information. We noted that

6 none of the material located contained exculpatory information and that no

7 such information was being withheld, and we said we would provide it to

8 the Defence as soon as it took steps to safeguard our security interests

9 by obtaining an order from the Tribunal applying Rule 70 and executing an

10 agreement to protect the information while it was in their custody.

11 We explained that these protections sought were equivalent to

12 those that we have requested from the Prosecution whenever we have shared

13 similar information, and that the protections were the same as those we

14 had obtained from all other Defence counsel who have desired access to

15 sensitive US government information.

16 How, then, did the Defence answer this offer of information

17 responsive to their request? On January 29, the Defence rejected it.

18 Despite the rejection, the United States made one final effort to provide

19 the Defence the information it had requested. On February 3, 2003, we

20 sent a letter "To make clear that the US government's offer of responsive

21 documents is not conditioned on the Defence withdrawing its motion as it

22 relates to the United States government." In other words, that there was

23 no downside, no cost to the Defence pending this information.

24 More than a year and a half has passed since the United States

25 made this offer, and we have received no reply from the Defence. It's

1 difficult to reconcile this indifference with the Defence's assurance the

2 previous August to do "Whatever it takes with the United States to obtain

3 this information," but more importantly it's impossible to reconcile such

4 an approach with an obligation under the Tribunal's Rules and precedent

5 that the compulsory process should be one of last resort and used only in

6 cases where it is really necessary.

7 The request also fails to meet the other prerequisites established

8 by the rule and the Blaskic decision as discussed by my colleagues

9 yesterday. These relate to the requirements to identify the documents,

10 establish their relevance, demonstrate necessity, and ensure that the

11 request is not unduly onerous.

12 Because the purpose of these elements is to prevent unwarranted

13 intrusions into a state's sovereignty, it follows that a request that

14 intrudes into the matters that are at the heart of a state's security

15 interest such as intelligence that those requests should be strictly held

16 to meeting these -- the high standards of these requirements.

17 With respect to specificity, Rule 54 bis requires that the party

18 requesting an order "Identifies as far as possible the documents or

19 information to which the application relates." The Blaskic decision

20 explained that the request must "Identify specific documents and not broad

21 categories." The application concedes that the request is for a "Category

22 of documents" rather than specific ones, but it relies, or tries to rely,

23 on a selective quotation from the Kordic case to suggest the documents

24 could be requested by category where it is impossible to specify the

25 title, the date, and the author of each document, and where the requested

1 category of documents was identified as "Sufficient clarity to enable

2 ready identification of the documents falling within that category."

3 Now, while the Appeals Chamber in Kordic did impose those

4 requirements, it imposed an additional one that Defence counsel did not

5 mention, and that is that "The requirement of specificity clearly

6 prohibits the use of broad categories," and the emphasis is in the

7 original Kordic decision.

8 Also, the categories at issue in the Kordic case were based on the

9 content of the information sought, not on the type or form of information.

10 It's difficult to envision broader categories of request than ones

11 which encompass all of the accused's utterances written and oral during a

12 six-month period and all of the utterances by anybody else in Yugoslavia

13 relating to Kosovo in which the accused was mentioned or referred to. As

14 my colleagues mentioned, the requests were so broad that they sweep up

15 everything from social chatter to family conversations to business

16 dealings.

17 The three parts of the original request, including in many ways

18 the revised request, fail to specify the participants beyond the accused

19 in these conversations, the location where the statements were made, the

20 approximate dates where they were made, and more importantly, their

21 content. These kinds of requests represent the classic fishing expedition

22 where the requester is not searching for a particular piece of evidence he

23 has reason to believe exists but is casting a very broad net in the hopes

24 that something useful might turn up. This approach is prohibited by the

25 requirements of Rule 54 bis, and it was rejected by Judge Hunt in the

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1 quoted excerpt that was read by my Canadian colleague yesterday.

2 The fact that the Defence is unwilling or unable to describe the

3 content of the information it seeks cannot provide a basis for it to evade

4 the requirement of specificity. Rule 54 bis in the applicable case law

5 also require that the requester indicate how the information sought is

6 relevant to any matter at issue before the Judge or Trial Chamber. The

7 submission asserts in a conclusory manner that evidence of statements made

8 by or to General Ojdanic are relevant to show whether he participated in

9 the offences, whether war crimes were reported to him, and his mental

10 state concerning the events.

11 Now, the problem with this justification is that it presumes a

12 request that focuses on statements by either the accused or others

13 relating to the elements of the crimes charged. In fact, the request has

14 no such limitation and extends to almost any statements by the accused or

15 others with respect to the accused within the six-month period. The

16 Defence desires intercepted communications for the period irrespective of

17 what those purported intercepts actually say.

18 The Defence tries to justify the relevance of statements that have

19 no links to the crime at issue by asserting that they demonstrate that the

20 accused "Despite being intercepted on X number of calls was never heard to

21 order, instigate, plan, aid, or abet -- plan, aid, and abet, condone, or

22 fail to prevent or punish a war crime." In other words, more than two

23 dozen states are being asked to produce broad categories of sensitive

24 intelligence so the Defence can attempt to demonstrate by the purported

25 absence of information relating to the crimes that the crimes were not

1 committed.

2 Now, even accepting for the sake of argument that a request of

3 this sweep was permissible, the justification, the logic behind it is

4 fundamentally flawed. The absence of inculpatory information in the

5 material sought would openly be significant if one assumed that every one

6 of the accused's communications during the relevant period had been

7 contained, retained, located, and reviewed, which is an impossibility.

8 Even then, one wouldn't know whether the absence of inculpatory

9 information reflected a lack of criminal intent or an intent to avoid

10 inculpatory communications. To satisfy the relevance requirement, the

11 information sought must be linked to the charges at issue, and a request

12 that fails to differentiate between such statements and those unrelated to

13 the crimes charged has manifestly failed to meet this requirement.

14 Rule 54 bis also requires that a requester show that the

15 information sought is necessary to a fair determination of the matter at

16 issue. This distinguishes the approach of the Tribunal under Rule 54 bis,

17 which is a tightly controlled regime from the much broader discovery

18 regimes that are applicable in various national systems and particularly

19 the American one with which both Defence counsel and I familiar.

20 The Defence's submissions do not address this requirement beyond

21 stating it. First, by encompassing huge quantities of material that are

22 not relevant to the matters at issue, the request is clearly not necessary

23 to the adjudication of the accused's guilt or innocence. Second, even

24 with respect to statements of the accused or others that might be relevant

25 to the trial, states are neither the only nor the best source of the

1 requested information. The accused is in the best position to know what

2 he said, when he said it, and with whom he spoke or wrote to about

3 relevant matters. The accused is also in the best position to know who

4 the participants were in these exchanges so they can be corroborated and

5 so that testimony, if applicable, can be sought.

6 The accused obviously will not remember every single communication

7 made during this period, but presumably ones that are relevant to the

8 matters at issue in this trial would be the kind that would be recalled if

9 they were, in fact, made.

10 Moreover, if the information sought was actually necessary to the

11 matters at issue in this case, why did the Defence rebuff two offers from

12 the United States to provide responsive material? Why has the Defence

13 left unanswered for more than 18 months an offer to provide the responsive

14 material without prejudice to its pursuit of the current motion?

15 Beyond these Rule 54 bis requirements, the Tribunal's

16 jurisprudence identifies two other factors for a Chamber to weigh before

17 it will proceed with a compulsory order against states. I'll touch on

18 them briefly.

19 First, the request must not be unduly onerous. In making this

20 assessment, the Blaskic court made clear it a Chamber would not -- would

21 consider not just whether the identification and location of the

22 information is "overly taxing," in the words of the court but also the

23 burden imposed by the "scrutiny of the documents for release. The scrutiny

24 of the documents for release." The request must also be "strictly

25 justified by the exigencies of the trial."

1 Now, it is obvious that a request involving either the breadth of

2 the one at issue in this application encompassing every communication of

3 an individual during a six-month period and every mention of him by other

4 individuals and all communications originating in the former Yugoslavia

5 and related to Kosovo, or the fact that the request involves intelligence

6 of the highest sensitivity, that processing it would be onerous.

7 Without going into the details of intelligence sources and

8 methods, it is reasonable to assume that highly sensitive information,

9 whether it is acquired through technical or human means is closely

10 compartmented and segregated. The fact that the request itself seeks

11 "Summaries, notes or text," of the purported statements, necessitates a

12 search through hard copy files rather than just electronic ones. Even

13 beyond the intelligence material sought, the request for "All

14 correspondence, memoranda reports, recordings, or summaries" of statements

15 made by the accused to US officials or sources would again necessitate a

16 hard copy search that could cover dozens of different offices in dozens of

17 different agencies and departments as well as our embassies abroad.

18 Moreover, the sensitivity of the sources and methods at issue

19 means that even if responsive information is located, it must undergo an

20 individual, painstaking, and multi-layered review process - this is the

21 scrutiny referred to in Blaskic - before that piece of information can be

22 authorised for release. So even assuming that some responsive information

23 was stored electronically, that it has been retained on a database, that

24 the database is located, and that the responsive information is filtered

25 from the other information produced by the word search suggested by

1 Defence counsel, that search represents only a fraction of the burden

2 involved in actually producing responsive information to this request.

3 As a final matter, the United States has consistently been among

4 the strongest supporters of the Tribunal and few states, we believe, have

5 provided cooperatively as much information, in terms of both quality and

6 quantity, to both the Prosecution and to the Defence. The Blaskic Appeals

7 Chamber noted both the relevance of a state's good faith in assessing a

8 request for a compulsory order and also observed, quoting the Prosecutor,

9 that "The mandatory compliance powers expressly conferred by Article 29 of

10 the Statute will rarely, if ever, need to be invoked with respect to ...

11 third, in other words, not former belligerent states."

12 Here it is worth noting how different the situation here is from

13 other cases where the Office of the Prosecutor has made repeated,

14 increasingly specific requests from countries whose former officials are

15 being tried by the Tribunal and where those requests have been repeatedly

16 rejected. None of the states that are the subject of this request have an

17 equity in the outcome of these particular proceedings, apart from seeing

18 that justice is done fairly and impartially, and all of us have expressed

19 a willingness in cooperating with appropriately framed requests from

20 either the Prosecution or the Defence under the Rules of the Tribunal.

21 With respect to the specific request before the Chamber, the

22 United States believes that the record of our dealings with the Defence

23 counsel demonstrates that we have at every step not only responded in good

24 faith but gone the extra mile to make relevant information available in

25 response to the request.

1 In conclusion, the United States submits that the Defence request

2 has failed to meet the key prerequisites outlined in Rule 54 bis as well

3 as the Blaskic decision and the other Tribunal jurisprudence. The request

4 is over-broad. It encompasses a vast quantity of irrelevant material.

5 Information sought is not necessary for a fair adjudication of the issues.

6 More fundamentally, it implicates directly and unnecessarily information

7 of the highest national security sensitivity. The national security

8 nature of the information enforces the obligation of the requester to work

9 with states to obtain the information cooperatively before proceeding to a

10 compulsory process. And it also requires that the request be held to the

11 high standards in meeting the prerequisites of the Rule.

12 The Defence, however, has failed to meet its obligation to take

13 reasonable steps to obtain our cooperation. Any steps it took were only

14 after the repeated urging of the United States, and even those were

15 abandoned. Despite these failures, the United States has acted in good

16 faith and located responsive information, and we offered to provide the

17 located information under conditions equal to those required of the

18 Prosecution that would protect our national security equities while

19 permitting a sharing of it. The Defence rejected our first offer and has

20 responded to our second one with 18 months of silence. Under these

21 circumstances, the accused's application for a compulsory order to produce

22 information, we respectfully submit, must be denied.

23 Thank you.

24 JUDGE BONOMY: Mr. Johnson, I have two questions for you. The

25 first is this: What do you mean when you say that the application focuses

1 on the means of recovery rather than the product?

2 MR. JOHNSON: What I mean to say is that the request is phrased in

3 terms of focusing on intercepted communications. That is the focus of the

4 request. It's augured around intercepted communications rather than being

5 focused on the actual content that is sought in these communications. So

6 it keys off of the intelligence method used to gather the information

7 rather than keying off of the content of the information that is being

8 sought.

9 JUDGE BONOMY: But that's simply a factor of the lack of

10 specification in the application, really, isn't it?

11 MR. JOHNSON: Well --

12 JUDGE BONOMY: It could delete these words and the application

13 would just be the same. You could delete from each of paragraphs 1 and 2,

14 or A and B, the words "of any intercepted communications."

15 MR. JOHNSON: Your Honour, I agree.

16 JUDGE BONOMY: All you would need to put in was communications --

17 or just delete the word "intercepted" and you would have the same

18 application without the point you make. So the real focus should be on

19 the lack of specification, should it not?

20 MR. JOHNSON: I think it is certainly on the lack of specificity.

21 I guess the way I look at it, Your Honour, is that the request is in two

22 parts and there are separate problems with respect to each part. On the

23 back end of the request there is the lack of specificity about what the

24 content sought actually is. On the front end there is a problem that it

25 focuses specifically on -- on an intelligence method used to gather the

1 information whereas that concern could be alleviated by either deleting

2 that language or a more general formulation such as "all information of"

3 and then specifying the content of the information sought.

4 JUDGE BONOMY: All right. Thank you. Now, the second -- just

5 give me a moment to note your response.

6 The second question is about the mechanics of a hypothetical

7 situation. I would like guidance on how this Tribunal, or indeed the

8 state involved, would tackle a situation where an order was made by the

9 Trial Chamber requiring production of material, and once the state in

10 question identified or completed the exercise of identifying the material,

11 it found that some of it was of such sensitivity that it did not want to

12 produce it or was anxious about producing it, that's probably a better way

13 of phrasing it. How, within the Rules of the Tribunal, do you envisage

14 that situation being tackled?

15 And I'm raising it now because it arises here as a result of the

16 broad nature of the application and the potentially broad nature of any

17 order made which doesn't focus on individual items of material and it

18 doesn't really give you a chance at the moment to say just what you might

19 be concerned about in relation to any particular item.

20 MR. JOHNSON: Yes, Your Honour. I agree. I think the way --

21 well, I'd like to answer that in a couple of respects. First, in the

22 experience of the United States, we have never faced that situation,

23 because in every case, with the hundreds of requests that we have received

24 from the Prosecution and the Defence, we have always found a way that we

25 can provide the requested information in a form that is responsive to the

1 request but also secures our national security, and that is why we place

2 such emphasis and I placed such emphasis in my oral submission on this

3 being a two-phased process that requires the cooperation first, and only

4 when that doesn't work, to get to the second phase because our experience

5 is that that can resolve these issues.

6 If you get to that -- and that it is much easier in that first

7 phase where you have a Rule like Rule 70 that can provide its own

8 framework for protection, that that gives states the most flexibility in

9 working with the requester to avoid these very difficult issues. And I'm

10 reluctant to address hypothetically what would happen beyond that but I

11 would --

12 JUDGE BONOMY: Are you actually saying that Rule 70(F) could be

13 applied at the stage at which you have found material? It would be

14 difficult, because that Rule's confined to the accused or the Defence

15 counsel making the application. So it doesn't give scope for a state,

16 when ordered to produce material, to come here and say, "Well, we'll

17 produce it but under certain conditions."

18 MR. JOHNSON: No, I agree, Your Honour. I think that kind of

19 exchange happens before you proceed to the compulsory process.

20 JUDGE BONOMY: I follow that, and I understand your argument

21 entirely on this. What I'm trying to work out is, assuming we're not

22 dealing with that situation - and I stress it's a hypothetical question -

23 how do you envisage the United States tackling the question of the --

24 having their anxiety, their concerns addressed before the material is

25 released or indeed not released?

1 MR. JOHNSON: Your Honour, I think once you get to that second

2 stage it becomes -- it becomes very difficult, and there the answer would

3 depend very much on the -- each individual specific piece of information

4 that was at issue. Some of them main not present great sensitivities or

5 ways may be found to deal with those specific pieces. Other pieces may

6 present the highest sensitivity and may require their own -- their own

7 handling.

8 I know, as Your Honours are aware, the Blaskic decision goes into

9 this a bit as does the second part of Rule 54 bis once you get to that

10 stage and the types of protection that can be applied then, including, in

11 extraordinary cases, limiting the actual review of the information itself.

12 So those modalities are provided to some degree by the Blaskic decision

13 and by the back end of Rule 54 bis, but again the ability to apply those

14 would depend very much on being able to know what it is that you are

15 talking about, what piece of information is at issue.

16 JUDGE BONOMY: Thank you.

17 MR. JOHNSON: Thank you.

18 JUDGE ROBINSON: Thank you, Mr. Johnson. Thank you.

19 The next submission will come from Professor Tomuschat on behalf

20 of Germany, or am I mistaken.

21 MR. TOMUSCHAT: Your Honour, the agent for Germany would like to

22 speak first.

23 JUDGE ROBINSON: Yes, he may speak.

24 MR. LÄUFER: Mr. President, distinguished members of the Tribunal,

25 it is an honour to appear and act before this Court as an agent of the

1 Federal Republic of Germany. Allow me first to me express my highest

2 esteem for members of this Tribunal. I would like to accentuate that

3 Germany has always supported the Tribunal to the best of its abilities.

4 This political and legal commitment to the common rule of law will

5 persist.

6 Your Honours, Germany's grateful for the opportunity present today

7 its comments on the admissibility and well-foundedness of the application

8 of the 15th of November, 2002, which is still pending before this

9 Tribunal. After my short introduction to my position, Professor

10 Tomuschat, as counsel for the federal republic of Germany, will present

11 our arguments, whereafter I will again ask for the floor to present the

12 submissions of Germany.

13 Germany commented on the application by counsel for

14 General Ojdanic on its submission of the 27th of February, 2003, arguing

15 in particular that the search for and identification of the materials

16 requested would be disproportionally burdensome. By our submission of the

17 20th of June, 2003, counsel for the applicant sought to remedy the flaws

18 of their request by explaining in some detail why in their view the Trial

19 Chamber should grant the order they had applied for. This attempt has

20 failed. Even in light of the explanations provided, the application does

21 not meet the criteria specified in Rule 54 bis of the Tribunal's Rules of

22 Procedure and Evidence, henceforth called Rules. Neither have counsel for

23 the applicant sufficiently identified the documents or information to

24 which the motion relates, nor have they indicated how these documents or

25 information are relevant to the pending proceeding or demonstrated that

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1 these materials are necessary for a fair determination of the matter.

2 At the very outset, Germany would like to emphasise the importance

3 it attaches to a loyal cooperation for all Member States of the United

4 Nations with that Tribunal. It may be recalled that the very first person

5 who stood trial in The Hague, Dusko Tadic, was surrendered by German

6 authorities to the Tribunal. There is no need to stress that the Tribunal

7 can live up to its responsibilities only if the states to which it

8 addresses its orders bona fide comply with such orders.

9 In the instant case, too, Germany is prepared to cooperate with

10 the Tribunal within the limits specified by Rule 54 bis as interpreted in

11 the case law of its Appeals Chamber, but it is clear that these limits

12 have to be respected. Germany has already deployed its best efforts with

13 a view to facilitating the task of the Tribunal in the case of the

14 applicant, General Ojdanic. As mentioned in the submission of the 27th of

15 February, 2003, a comprehensive and diligent search conducted according to

16 a criterion of reasonableness in the main archives produced no materials

17 covered by the categories described in the application of the 15th of

18 November, 2002.

19 At the very outset of this pleading, it can be said that no new

20 information of any relevance would be discovered if the Tribunal granted

21 the application as requested by the Defence. In that sense, the dispute

22 over the application has already become moot. However, the request raises

23 issues of principle. Germany, therefore, gradually avails itself of the

24 opportunity provided by this hearing to articulate its reservations and

25 objections with regard to request for the production of documents which

1 are as broadly framed as the application of the 15th of November, 2002.

2 Mr. President, I would now kindly ask the Tribunal to give the

3 floor to Professor Tomuschat as counsel for Germany.

4 JUDGE ROBINSON: Thank you. Professor Tomuschat.

5 MR. TOMUSCHAT: Mr. President, distinguished members of the Court.

6 It emerges from a simple perusal of the motion of 15 November 2002 that

7 the Defence has failed to identify the material sought or does so only in

8 a formal way, by requesting just anything where the name Ojdanic will

9 appear. This failure, which was not remedied by Counsel's intervention

10 yesterday, is not in conformity with Rule 54 bis. The -- this provision

11 seeks to confine the obligation encumbered upon states by enjoining a

12 requester to specify in detail what it wishes to obtain. Requester states

13 on the basis of Article 29 of the Statute and Rule 54 bis of the Rules

14 must be limited in scope and weight. After the decision of the Appeals

15 Chamber in Blaskic of 29 October 1997, Rule 54 bis was included in the

16 Rules, which now provides specifically that a moment under Rule 54 shall,

17 and I quote "Identify as far as possible the documents or information to

18 which it relates."

19 This clause is obviously meant to implement the holding of the

20 Appeals Chamber in the Blaskic decision that any request for the

21 production of documents must identify specific documents and not broad

22 categories. The phrase "As far as possible" cannot be stretched to mean

23 no identification at all in instances where an applicant does not even

24 know what should be identified.

25 A narrow interpretation of Rule 54 bis is not only suggested by

1 its wording but also by its general purpose. Third states which are not

2 directly involved in a trial can play only a subsidiary role in

3 proceedings before the Tribunal. It is a task incumbent upon the

4 Prosecutor to carry out the requisite investigations and to prepare an

5 indictment if appropriate. On the other hand, the Defence will be ensured

6 by counsel it has never been the intention of the Security Council in

7 adopting the Statute of the Tribunal to shift the burden of Prosecution or

8 Defence on the individual members of the international community. Third

9 states can and should lend their assistance to the Tribunal so that

10 justice may be done. But according to the philosophy of the Statute,

11 their function remains a complementary one. They cannot be burdened with

12 the full weight of tasks which either the Prosecution or the Defence shall

13 have to fulfil.

14 Additionally, it should be noted that in the Blaskic case, the

15 Appeals Chamber rightly saw some merit in the distinction between states

16 located on the territory of the former Yugoslavia and third states not

17 directly involved in the conflict and whose role was confined to that of

18 concerned bystanders. To be sure and -- it was -- this was discussed

19 yesterday also, this distinction was characterised by the Appeals Chamber

20 as having some value only for practical purposes, but it again reflects a

21 criterion of proximity or remoteness, as the case may be. Primarily, it

22 is incumbent upon the parties proceeding before the Tribunal to see to it

23 that justice be administered correctly.

24 Germany was in no way involved in the actions which constitute the

25 factual basis from which the indictment against the applicant arose. Its

1 obligations stem from its being a member of the United Nations and,

2 therefore, being placed under the authority of the Security Council.

3 However, even the powers of the Security Council are not boundless, which

4 the Security Council itself recognised by setting forth in Article 29 of

5 the Statute a duty of cooperation which is tantamount to saying that the

6 Tribunal and the states members of the United Nations shall work together

7 in a mutual relationship of trust and confidence on a level of equality.

8 The limitation ratione materiae of orders enjoining a state to

9 produce relevant documentation is clearly indicated in Article 29 of the

10 Statute. It emerges from a careful reading of paragraph 2 of that

11 provision that states are required and can be ordered to perform specific

12 acts with a view to providing assistance to the Tribunal. But all the

13 examples given in paragraph 2 concern such specific acts, starting with

14 the identification and location of a person and ending with the surrender

15 or the transfer of an accused to the Tribunal. Nowhere does the Statute

16 demand that states engage in general activities of a comprehensive

17 character designed to clarify whether a person may have committed criminal

18 acts or whether he or she has led a fully law abiding life. States can be

19 requested to add bits and pieces, which may, of course, be extremely

20 important, to proceeding which is directed and steered by others. But

21 they cannot be pushed into an investigatory role. Identifying and

22 collecting evidence essentially remains in the hands of the parties proper

23 acting before the Tribunal.

24 According to a general understanding of international criminal

25 law, judicial assistance means assistance with regard to acts specifically

1 identified. It does not appear that this traditional pattern of judicial

2 assistance, as it has been shaped in bilateral or regional frameworks and

3 as also reflected in Article 93 of the Rome Statute was totally set aside

4 by the Security Council in adopting Resolution 827. To be sure, this

5 Tribunal has a special status. Its powers go beyond the obligations which

6 states have generally entered into by virtue of international agreements.

7 Yet the Member States of the United Nations are not placed in a

8 relationship of hierarchical subordination vis-a-vis the Tribunal, as

9 borne out by the use of the term "cooperation." Enjoining states to

10 furnish the Tribunal with the full content of their archives would change

11 that relationship in a dramatic fashion and impose upon them burdens which

12 could only be justified with regard to an aggressor state or a state

13 otherwise threatening international peace and security.

14 The distinction between a state targeted under Chapter VII of the

15 Charter and a third state providing assistance to the Security Council of

16 the Tribunal must be maintained and should not be blurred in proceedings

17 before this Tribunal, which was established under the authority of the

18 Security Council.

19 Now some words about the relevance of the materials sought. It

20 has already been stressed in many of the submissions made to the Tribunal

21 that the request as formulated by counsel for the applicant also fails to

22 meet the criterion of relevance listed in Rule 54 bis and specified more

23 in detail in the Blaskic decision. This objection applies to all of the

24 three heads of the request. It is openly acknowledged in the submission

25 of 20 June 2003 and was confirmed yesterday by Counsel Robinson that the

1 Defence does not know of any relevant piece of information in the

2 possession of the states concerned that might contain exculpatory elements

3 in favour of the applicant. Rather, the Defence hopes that, amid masses

4 of materials it wishes to get hold on, there might be some indicia showing

5 that the charges brought against the applicant are unfounded. And be

6 referred to paragraphs 7 to 20 of submission of 20 June 2003.

7 In this sense, the request can indeed be equated with an attempt

8 to introduce the contested concept of discovery, which has its legal home

9 in the United States, into the current proceeding. Counsel have commenced

10 a fishing expedition which they believe might disclose some elements of

11 proof that are beneficial to their client. They are admittedly unable to

12 show or even to contend that the materials they wish to be presented to

13 the Tribunal may contain elements susceptible of exonerating the

14 applicant. The net which they have cast does not just see to catch fresh

15 fish from a little pond, it rather attempts to sweep an ocean with

16 anything the waters contain, like those drift nets which the General

17 Assembly has condemned so many times.

18 Such comprehensive search for such facts and information is not

19 authorised by Article 29 of the Statute. States as third parties are not

20 subject to the jurisdiction of the Tribunal to the same extent as private

21 parties in litigation taking place before ordinary courts, according to

22 one specific domestic legal order.

23 I'd again like to refer in this connection to the persuasive

24 opinion of Judge Hunt on the motion by Esad Landzo to preserve and provide

25 evidence which was already quoted yesterday by counsel for Canada, and I

1 refrain from again quoting that sentence.

2 The over-broad scope of the request becomes abundantly clear if

3 one reflects just for a short moment on the effects of the actual

4 implementation of the different subitems of the request. All of them

5 encompass material that have no relation whatsoever to the pending

6 proceeding.

7 According to subitem (A), all recordings, summaries, notes, or

8 text of any intercepted communications to which General Ojdanic was a

9 party would have to be produced. This definition would not only include

10 materials deriving from official military activities of the applicant but

11 also from his private conversations with his family, his friends, with his

12 tax authorities, his planning of a vacation trip or his religious

13 authorities. It stands to reason not only that such communications have

14 nothing to do with the charges brought against the applicant but that it

15 would also be highly problematic to divulge the contents of conversations

16 or other communications, and the secrecy of which third persons may have a

17 vested interest.

18 Furthermore, it does not serve the interests of justice to

19 inundate the Tribunal with masses of irrelevant documentation. In the

20 case of other defendants, tonnes of materials might have to be shipped to

21 The Hague if the Tribunal granted the motion and the precedent thus set

22 then determined the further procedural course of this Tribunal.

23 Easily thus, applications under Rule 54 bis could be used to

24 hamper or outright obstruct effective administration of justice. In any

25 event, this reflection makes once again clear that the aim of the defence

1 is not to compel the states concerned to open their archives with respect

2 to specific documents, in accordance with the gist of Rule 54 bis, but to

3 get access to possible sources of evidence that might be of some interest

4 to the applicant.

5 Subitem (B) is even more objectionable. Essentially, the Defence

6 wishes to get hold of anything recorded in any form whatsoever where the

7 name of General Ojdanic is just mentioned. Here the relevance of the

8 material sought is obviously lacking in its totality. It is the Tribunal

9 which is called upon to try the applicant, General Ojdanic, and not the

10 marketplace of public opinion. What third persons expressed about the

11 applicant, how they evaluated him and his way to conduct the war is

12 clearly irrelevant to the outcome of the proceedings.

13 At Nuremberg - and I jump back into the past - nobody was

14 interested in learning more about the appraisal in the capitals of the

15 world of the major Nazi war criminals during World War II. The accused

16 were made accountable for their deeds in accordance with general standards

17 of fair trial. Their conduct was gauged against the legal yardstick laid

18 down as a statute of the military tribunal, and of course, international

19 customary law. For that purpose it was not necessary to know what had

20 been said about the accused, perhaps even with some sympathy, before the

21 outbreak of the war, later in a generally condemnatory way. It stands to

22 reason that the intelligence services the Allied powers during the Second

23 World War had to do their utmost in order get a clear picture of the

24 leadership of the Third Reich and of their thinking. And they assumed

25 that information was collected on a daily basis. A request similar to the

1 one made in the instant case, extending over six or even 12 years, would

2 have taken years to be implemented and would have been totally irrelevant.

3 What matters are the facts, the criminal acts, and not their mirror image

4 in expert or public opinion.

5 Although it is in principle up to the Tribunal to assess the

6 relevance of the materials sought, and this is the decision of the Appeals

7 Chamber of Kordic of 9 December 1999, there must be certain limits to what

8 can be requested. Here it is apparent on the face of the application that

9 it is entirely unable to unearth anything of importance for the

10 adjudication of the pending charges. In such instances of manifest lack

11 of relevance, the Tribunal must reject the request.

12 Regarding subitem (C) it is again utterly unclear what relevance

13 all oral or written statements made by the applicant can have for the

14 outcome of the proceeding. It may well be that some of these materials

15 could exonerate the applicant or, on the other hand, prove his guilt. The

16 request is not confined to such relevant materials. It extends to just

17 any information and therefore necessarily for the most part the materials

18 without any importance.

19 Now some words about the necessity of the materials for a fair

20 trial. Additionally, any observer would find it extremely difficult to

21 understand why the applicant needs the assistance of third states in order

22 to know what he said and declared during the period concerned. He himself

23 must have archives, at least a diary from which he should be able to glean

24 what contacts he had during the relevant time.

25 Contrary to what was said yesterday by counsel for the applicant,

1 the relevant six months cannot be just a Black Hole in the memory of the

2 applicant and his written notes covering that period. Consequently the

3 simple consideration makes it abundantly clear that provision of the

4 materials identified in subitem (C) of the application is not necessary

5 for the purposes of a fair trial.

6 The submission of 20 June 2003 seems to have been written on the

7 basis of the assumption that the defendant has to prove his innocence.

8 This assumption grossly misunderstands the premises of a trial based on

9 the rule of law. We wish to emphasise again what was said yesterday by

10 counsel for Canada and the United Kingdom. It is the Prosecutor who must

11 present the evidence which shows that the indictment is well-founded. If

12 she fails to prove her case, the indictment will have to be rejected. The

13 applicant will be acquitted.

14 Apparently the Defence intends to obtain negative evidence to the

15 fact that the applicant did not commit any of the offences he is being

16 charged with.

17 Such an attempt to prove a negative cannot be successful. Even if

18 in hundreds of conversations no reference was made to any war crimes or

19 other crimes, such finding would not exclude that on another occasion

20 criminal acts were ordered or approved. This has just been explained in

21 detail by counsel for the United States.

22 Germany considers, furthermore, that the research as requested by

23 counsel for the applicant is much too burdensome even for a well-organised

24 administration. Materials that will have to be scrutinised are scattered

25 over a vast array of federal and in some instances also Laender

1 authorities, the component units of the Federal State of Germany. Some of

2 the materials are stocked in electronic form, others are not that easily

3 accessible. Thus for the most part, the archives would have to be

4 reviewed individually by trained specialists. Such search through hard

5 copy files entails huge costs and is again a consequence of the over-broad

6 framing of the request.

7 Lastly we refer to national security interests. Germany must

8 furthermore reserve its right to invoke its national security vis-a-vis a

9 possible order by the Tribunal that would grant in full the request by

10 counsel for the applicant. No state can be obligated to reveal details

11 about its system of collecting intelligence regarding all currencies

12 beyond its borders. The interests of national security are explicitly

13 recognised in Rule 54 bis (F) of the Rules.

14 Here again, the inadmissibly broad scope of the request makes

15 itself felt. Even in the eventuality that the Tribunal should grant the

16 request by counsel for the applicant it may not be possible to immediately

17 raise objections regarding the content of the materials concerned. In

18 fact, at the time of delivery of such an order it would not at all be

19 clear what documents might be encompassed by it. German authorities would

20 have to commence a huge search operation and only after determination of

21 such operation would it become known whether the disclosure of any

22 specific elements resulting from the search would negatively affect German

23 security interests.

24 However, provision of the available resource materials would in

25 any event give decisive clues as to the organisation of the system

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1 according to which Germany collects information as to occurrences outside

2 its borders. Accepting the demands of the Defence would be tantamount to

3 revealing to the public at large, in particularly also to foreign

4 governments, the way Germany runs its intelligence services. This

5 inevitable consequence is again related to the over-broad scope of the

6 application as underlined by Judge Bonomy a couple of minutes ago.

7 If specific information on a specific issue had been requested,

8 the relevant data could be provided without such far-reaching, harmful

9 consequences; however, pieces of information spread out over six months

10 coming from different sources could easily be used by others to put

11 together the pieces of the puzzle with a view to obtaining a comprehensive

12 picture of the system.

13 Mr. President, I have come to the end of my presentation and may I

14 request you to kindly give the floor to the agent for Germany, Mr. Läufer.

15 JUDGE ROBINSON: Yes, he has the floor. Mr. Läufer.

16 MR. LÄUFER: Mr. President, Your Honours, I will now present the

17 conclusions and submissions of Germany. It is plain that the applicant --

18 that the application of the 15th of November, 2002 has been drafted in

19 such broad terms that it conspicuously exceeds the scope of Article 29 of

20 the Statute and Rule 54 bis of the Rules. In its present form the motion

21 cannot be granted.

22 The Defence of the applicant would have to substantially modify

23 the requests filed through the application of the 15th of November, 2002

24 in order to bring them within the purview of the relevant provisions of

25 the Statute and the Rules. Germany, therefore, respectfully prays the

1 Tribunal to reject the request.

2 I thank the Tribunal for its kind attention in listening to our

3 oral arguments. Thank you.

4 JUDGE ROBINSON: Thank you, Mr. Läufer.

5 Professor Tomuschat, may I ask you a question? I was interested

6 in the -- in the general comments that you made at the beginning of your

7 submissions about Article 29, which derogates from customary international

8 law protecting the sovereignty of states. Are you saying that to the

9 extent that there is this derogation it should be interpreted

10 conservatively in the interests of the protection of state sovereignty?

11 MR. TOMUSCHAT: Mr. President, Germany favours a broad

12 interpretation of Rule -- of Article 29 of the Statute, but on the other

13 hand, we emphasise the fact that Article 29 of the Statute speaks of

14 cooperation and this in paragraph 1. And I think the word "cooperation"

15 is a decisive concept there, and it underlines that there must be mutual

16 trust and confidence and that a proceeding must be conducted on a

17 cooperative basis. I think this is what I wanted to -- to underline. We

18 think that cooperation must be the key concept in construing Article 29 of

19 the Statute.

20 JUDGE ROBINSON: And that is why the applicant must first exhaust

21 all steps -- I'm saying and that is why the applicant is required to take

22 all reasonable steps to secure the information before moving to the

23 compulsory regime.

24 MR. TOMUSCHAT: Mr. President, Germany did not mention the steps

25 which were taken in 2002 by the Defence. Germany received a letter,

1 indeed, but this letter was also couched in very broad language, in the

2 same way as the application and, therefore, the relationship or the --

3 this -- well, motion on the part of the Defence did not go very far,

4 because it was felt on the part of German governmental authorities that

5 this was simply too broadly framed, that they could not respond in a

6 positive way to the request made first by the Defence for the applicant.

7 JUDGE ROBINSON: Thank you, Professor Tomuschat.

8 We will now take a break of 20 minutes.

9 --- Recess taken at 4.20 p.m.

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

11 JUDGE ROBINSON: We'll now hear submissions on behalf of France

12 from Ms. Dubrocard.

13 MS. DUBROCARD: [Interpretation] Your Honours, first of all I would

14 like to say that it is a great honour for me to appear for the first time

15 before you on behalf of the French government. I'm given the difficult

16 task to speak -- to speak last following the presentations of all the

17 participants at the present hearing. I am not going to test your

18 patience, and I'm going to try to focus on the main points of my

19 presentation, and I'll try to avoid, as much as possible, to repeat the

20 arguments already laid out by the other state representatives. I should

21 not be speaking more than 15 minutes.

22 First of all, by way of an introduction regarding the proceedings

23 before today's hearing, I would like to point out the two following points

24 as was mentioned by Mr. Robinson several times when he made his

25 submissions yesterday: The Trial Chamber initially decided in its

1 scheduling order dated 26 November, 2002 that the applicant had, and I

2 quote "fulfilled the requirements of Rule 54 bis (A) insofar as he had

3 identified, as far as possible, the document or information to which the

4 application relates." And where the requested document relates to the

5 charges brought against him, and I quote again, "insofar as they relate to

6 his acts and behaviour and insofar as he has taken steps to obtain the

7 assistance of the concerned states and organisations." And that is why

8 the Chamber decided and ordered the request to be served on NATO and the

9 states mentioned in the request.

10 However, following the comments, written comments submitted by the

11 states, including France, your Chamber issued a new order on the 13th of

12 May, 2003. I don't think Mr. Robinson mentioned the order yesterday.

13 What is said in the order? You're asking the applicant to "submit

14 a further submission addressing in more detail the relevance of the

15 materials sought to the matter in issue in this case and specifying to

16 what issue each recording, et cetera, is relevant."

17 On the 20th of June, 2003, the applicant filed further submissions

18 following the order just mentioned, and on the 2nd of September, 2004,

19 following a stay in the proceedings, the Chamber decided to hold today's

20 hearing.

21 After having recalled these facts, I will now move on to the

22 matter at the heart of the present hearing.

23 According to the French government, the question here is whether,

24 following the filing of the further submissions of Mr. Ojdanic on the 20th

25 of June, 2003, it can be considered that Mr. Ojdanic has fulfilled the

1 requirement of Rule 54 bis (A). According to us, the answer to that

2 question is no, because notwithstanding the filing of these further

3 submissions, the requirements set out in the Rule have not been met.

4 This will be the object of the first part of my presentation,

5 because the French government submits that the provisions of Rule 54 bis

6 (A) have not been complied with in this case. I will not come back to the

7 Blaskic judgement that led to the drafting of Rule 54 bis. I will just

8 note that following this Rule and this case law, any party requesting an

9 order for the production of documents or information has to, in the

10 request, first of all identify, as far as possible, the documents or

11 information to which the application relates; secondly, indicate how they

12 are relevant to any matter in issue before the Judge or Trial Chamber and

13 necessary for a fair determination of that matter; and thirdly, explain

14 the steps that have been undertaken by the applicant to secure the state's

15 assistance. Furthermore, such a request should be relatively unonerous.

16 What is the situation in this case? Well, we have to say that the

17 requests submitted by Mr. Ojdanic, even when we look at the further

18 submissions of 20th of June, 2003, does not fulfil these requirements.

19 With regard to the steps taken by the applicant, the French

20 government should like to remind that in its letter dated 29th of June,

21 2002 to Mr. Ojdanic's counsel following their first request for

22 assistance, the government said that in principle it was ready to

23 cooperate with the Defence, but also noted that the request was not

24 specific enough. Therefore, the applicant's counsel were invited to

25 redraft their request and narrowing the scope of the request. However,

1 Mr. Ojdanic's counsel believed that France was not a position to cooperate

2 with them on the ground that our national law to adapt the Statute of a

3 Tribunal to our national jurisdictions does not make it compulsory for

4 French authorities to cooperate with the Defence.

5 The reference to in the legal framework from our letter from 29

6 June 2002 should not be interpreted as a refusal to cooperate, because in

7 the same letter, we expressly stated that we were quite ready to examine

8 any request of assistance related to the disclosure of specific

9 information or documents.

10 Following this misinterpretation of our response, the Trial

11 Chamber deemed that the requirement related to steps to be taken by an

12 applicant to obtain the assistance of a state had been fulfilled, but we

13 should repeat once again here that France has never refused to provide

14 assistant to Mr. Ojdanic's counsel but only has requested specificities

15 about the nature of the request submitted.

16 Secondly, with regard to the identification of the documents and

17 to their relevance, the lack of specificity of the request has not escaped

18 the attention of the Chamber, because in your order of 13th of May, 2003,

19 you expressly demanded from Mr. Ojdanic that he indicate the relevance of

20 the materials sought to the matters in issue in the case, and also you

21 asked him to specify to what issue each recording, et cetera, was

22 relevant. In other words, the applicant was invited to show, pursuant to

23 the provisions of Rule 54 bis (A), he was invited to show the relevance of

24 the documents and the specificity with regard to the matters in issue.

25 First of all with regard to the specificity requirement regarding

1 the documents requested. When reading the further submissions of the

2 applicant, we have to come to the conclusion that he does not give any

3 specificities about the three categories of documents he has identified

4 and that he requests. I would like to remind you that we are talking

5 about recordings of telephone conversations in which he was a direct party

6 between the 1st of January and the 20th of June, 1999; secondly,

7 conversations related to him and originating from the Republic of

8 Yugoslavia; and thirdly, any document related to his statements during the

9 same period.

10 By identifying these three categories of documents, Mr. Ojdanic is

11 trying to identify the ground for which each one of these categories is

12 relevant to the crimes he's charged with. But in reality, the difference

13 of distinction between these three categories of documents seems

14 artificial, because in every case, the idea is through conversations he's

15 had or statements he's made, the idea is to reject all charges that were

16 brought against him.

17 We are actually talking about one single category of material, a

18 very broad category of material drawn up between the 1st of January, 1999,

19 and the 20th of June, 1999, and the only common element between all these

20 documents is the mention of the name of the applicant and the fact that

21 all these documents would be susceptible to exonerate him.

22 Quite obviously such a wide request, such an unspecific request

23 does not fulfil the requirements of Rule 54 bis (A). If the Blaskic

24 judgement is the yardstick decision when it comes to defining

25 admissibility of production of documents, other decisions were taken later

1 and confirmed the criterion that had been set up.

2 Yesterday, Mr. Robinson mentioned the decisions taken by the Trial

3 Chamber in the Milosevic case where the Serbia and Montenegro had to

4 produce, pursuant to Rule 54 bis of the Rules of Procedure and Evidence, a

5 number of documents, but he omitted to say that at the same time, the

6 Chamber rejected many of the motions or requests submitted by the

7 Prosecution on the ground that such requests were too broad in their

8 nature and that they were unduly onerous.

9 I'm referring here to an order issued by the Chamber on the 12th

10 of June, 2003, referring to a motion submitted by the Prosecutor on the

11 13th of December, 2002, where he, among others, requested access to

12 military documentation drawn up or compiled by a specific military unit

13 between August 1991 and January 1992, and, of court, or, and I quote,

14 "Documentation from the assembly of the Republic of Serbia between 1991

15 and 1992."

16 In the Simic, Tadic, Todorovic, and Zaric case, it is true that

17 the Trial Chamber, presided by yourself, I believe, Your Honour, granted

18 the request of Todorovic for the production of documents held by SVO [as

19 interpreted]. Such request -- that request was related to a very specific

20 event, i.e., the circumstances of the arrest of Mr. Todorovic. But in

21 this particular case, the request for Mr. Ojdanic does not deal with any

22 specific event and is similar to what many here have called a fishing

23 expedition.

24 This fishing expedition is based on a number of assumptions that

25 are set out at paragraph 16 of the further submissions filed by

1 Mr. Ojdanic's counsel on 20th of June, 2003, and these assumptions are the

2 following: First of all, it is assumed that a great number of

3 conversations by the accused were intercepted; secondly, this was done

4 without him being aware of it; thirdly, this will make it possible to

5 prove that it -- he was not aware of the crimes that were brought against

6 him. In English: [In English] "Evidence of the acts and state of mind of

7 the accused than his contemporaneous statements during the times of the

8 events when he's not aware that his conversations are being recorded or

9 reported."

10 [Interpretation] In reality, counsel of General Ojdanic have no

11 idea of the contents of the documents requested, but they hope that after

12 reading them, supposing that such documents exist, they will be able to

13 discover some elements which might exonerate their client.

14 In any case, contrarily to what has requested from your Chamber to

15 the applicant in the Chambers decision of 13 May 2003 the applicant made

16 no effort to specify to which issue in particular related each of the

17 recordings of documents requested. He confined himself Zec to enumerate

18 the three broad categories of documents for which he requested production

19 and describing in general the charges against him.

20 Coming, then, to the relevance of these documents in relation to

21 the questions or the issues in the present case. The French government is

22 of course aware of the case law, in particular, in the Kordic judgement,

23 which was yesterday quoted by Defence.

24 While it is obvious that the evaluation of the relevance or not of

25 such documents solicited is finally to be determined by the Chamber, it

1 remains that the states which are requested may have their point of view

2 known. In this case, according to us, the relevance of these documents

3 for which Mr. Ojdanic requests production is particularly difficult to

4 assess precisely because of the too broad nature of the information

5 requested. Even in the further pleading, Mr. Ojdanic has not established

6 a sufficient link between the documents which he wishes to see disclosed

7 and the facts for which he is charged.

8 According to counsel of the applicant, their request is irrelevant

9 because it concerns whatever be the category of the documents in question,

10 the fact of establishing the facts which -- with which the accused is

11 charged. But if such an explanation as broad as it is were to be

12 accepted, the criterion requirement of relevance would become moot because

13 it is always possible for an accused to request production of documents by

14 giving us a reason for his request, the search for establishing his

15 innocence.

16 Finally I get to the last requirement which is the admissibility

17 of an application requesting production of documents, which is to say the

18 request concerning the -- the criterion concerning the execution.

19 From the Blaskic case, you can see that any order of production of

20 documents should be relatively easy. As the Judges have said in the

21 Kordic case, I cite: "A party cannot request hundreds of documents,

22 particularly when it is evident that the identification, location, and

23 scrutiny of such documents by the relevant national authorities would be

24 overly taxing and not strictly justified by the exigencies of the trial."

25 In this case, the lack of precision of the request ruminated by

1 Mr. Odjanic which I have spoken about would inevitably have the effect of

2 making excessively onerous any research of the document which have been

3 requested. Those are very varied. Not only recordings of telephone

4 conversation which would have been intercepted but also letters,

5 correspondence, notes, reports, the summaries of any declaration made by

6 the accused during a period of six months. The identification is also

7 quite vague since only the name of General Ojdanic would be the common

8 factor.

9 Further, it is always open to discussion whether it is necessary

10 to produce these documents. Indeed, it would be surprising to see that

11 only NATO and the states which are the object of such an order would be in

12 a position to furnish such documents proving the innocence of the accused

13 without him having also such information at his disposal. General Ojdanic

14 was in a better position to know which reports, notes, and correspondence

15 he wrote and received during the relevant period, which statements he may

16 have made during that period, and which were the meetings to which he

17 attended or still which conversations he may have had with his

18 collaborators. It is difficult to think that he has himself kept no trace

19 of these -- of such exchanges.

20 For all the reasons which I have mentioned, France therefore

21 considers that the application presented by Mr. Ojdanic does not satisfy

22 the conditions given in Rule 54 bis of the requirements, Rule 54 bis (A)

23 of the Rules of Procedure and Evidence and requests respectfully your

24 Chamber to dismissal.

25 In the alternative and only in the alternative, I wish to speak

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1 very briefly on the question of the possible prejudice to interest -- to

2 national interests by the present application.

3 If not withstanding what has been shown your Chamber were

4 nevertheless to consider that the application of the accused is at least

5 partially justified, in part justified, and therefore by consequence and

6 joint with the state's concern to produce the documents, France intends to

7 reserve as need be the possibility to raise objections by reason that the

8 divulgation of certain documents requested would prejudice its own

9 interests of national security. Nevertheless such an objection cannot be

10 envisaged in the present state of the formulation of the application

11 because its character is -- its nature is so I am precise that it does not

12 enable the French government to determine what are exactly the documents

13 which have been requested by the Defence.

14 Mr. Presiding Judge, Your Honours, I wish to thank you for your

15 attention.

16 JUDGE ROBINSON: Thank you, Ms. Dubrocard.

17 Mr. Robinson in reply.

18 MR. ROBINSON: Thank you, Mr. President, members of the Trial

19 Chamber. I want to thank my learned friends for their excellent advocacy.

20 They have made many objections, but we cannot lose sight of the fact that

21 a man's life is at stake here, and that man is the accused

22 General Ojdanic.

23 The countries sitting here in this room are in possession of

24 evidence that can make a difference between freedom or imprisonment for

25 the rest of his life. Those are the stakes here as you do the difficult

1 job of balancing the interests of the accuse at the Tribunal and the

2 interests of the state that have the information. It's not an academic

3 exercise.

4 Let's fast forward to 2006. Instead of sitting over there, let's

5 imagine General Ojdanic is sitting in the witness box and he testifies

6 that he never ordered any war crimes to be committed, that he was unaware

7 of any plan to expel Albanians from Kosovo, and that his standing orders

8 from which he never varied were that war crimes were to be prevented and

9 punished. He testifies that he had many conversations with other leaders

10 in the former Yugoslavia and that he was never told of any plan to expel

11 Albanians from Kosovo. He testifies that he had many conversations on a

12 daily basis with members of his staff and subordinates about what was

13 going on in Kosovo, and none of the murders, rapes, and destruction of

14 cultural sites described in the indictment were ever brought to his

15 attention. He says that when he spoke over the telephone, he gave

16 instructions consistently that war crimes were to be punished and

17 prevented and even ordered that paramilitaries involved in such activities

18 were to be shot on sight.

19 Imagine as you're hearing this testimony, would it be relevant to

20 hear intercepted conversations involving General Ojdanic during this time

21 period if they were available? Would it be necessary to a fair

22 determination of those issues? The obvious cross-examination would be:

23 What evidence do you have to back up these claims?

24 You saw this in the Milosevic case with General Ivasov last week.

25 Even members of the Trial Chamber were asking for corroborative

1 information. That's what we're trying to do by this request.

2 Let's look at how the intercepts we do have from Croatia would

3 enhance your fact-finding process. It would be easy to imagine Mr. Nice

4 or another Prosecutor suggesting to General Ojdanic that on the 8th of

5 February the KLA took eight soldier of the Serb army hostage and on the

6 15th of January, Serb forces murdered innocent villagers in Racak and to

7 ask him, "Isn't this just another exam of Serb forces responding with

8 disproportionate use of force and committing war crimes to retaliate?"

9 General Ojdanic could testify that there was no link between these two

10 events and you may or may not believe him, but because we have the

11 intercepted conversation from Croatia on the 8th of January, a

12 conversation between President Milosevic and General Ojdanic, we know that

13 their discussion regarding the capture of these eight soldiers and what to

14 do about it was to negotiate. There was no discussion of committing war

15 crimes or of any retaliation. Does that help you as a finder of fact? Of

16 course it does. Is it relevant? Is it necessary? I submit that as

17 careful finders of fact, that's the very kind of information that you

18 want.

19 Now, let's look at the use to which intercepted conversations have

20 been put to at this Tribunal. In the Srebrenica cases, the Trial Chambers

21 have been able to follow the event minute by minute in realtime thanks to

22 hundreds of intercepted conversations provided by the Bosnian government.

23 In the case of General Krstic, the Appeals Chamber reduced his sentence by

24 15 years when it was determined through an intercepted conversation that

25 the Bratunac Brigade, which were under his command, were not the ones who

1 executed prisoners at a place called Branjevo farm.

2 In the Brdjanin case, in a decision on 3 October 2003 on the

3 Defence objection to intercept evidence, contemporaneous intercepted

4 conversations were deemed to be so relevant that they should be admitted

5 into evidence even if the interception was illegal.

6 So sitting there listening to General Ojdanic's testimony in 2006,

7 you'd have a huge responsibility. You have to get it right. And I would

8 think you would want to have every tool possible at your disposal to help

9 you in that task.

10 Now, think back to this hearing. You could say, "I had the

11 opportunity to get these intercepted conversations back on the 2nd of

12 December of 2004. Why didn't I get them?"

13 Well, the states have fought vigorously not to give them. They

14 said the requests weren't specific enough, the intercepts were relevant.

15 They weren't necessary. The applicant didn't go the extra mile and that

16 national security interests prevented them from even confirming that such

17 intercepts existed.

18 Let's look at these objections and see if they really justify

19 keeping this crucial evidence from the trier of fact.

20 Specificity. What is the function of the specificity requirement?

21 I think it's useful to look at this in terms of two piles. Somewhere in

22 the archives of an agency in a capital in one of these states, an analyst

23 is sitting with that state's universe of General Ojdanic's intercepted

24 conversations. Let's say those papers are stacked one metre high. This

25 analyst would have your binding order and would read its terms, and he's

1 going to go through those intercepts and put them into two piles, one pile

2 to be delivered to the Trial Chamber, the other to stay buried in the

3 archives. The specificity of your order will determine which pile the

4 document goes into.

5 Let's take social calls, something referred to first by the

6 Government of Canada. I will tell you that during the war, General

7 Ojdanic had no social life and it's very likely to be many social calls.

8 But let's say that, for example, on the 23rd of March 1999 General Ojdanic

9 invited a friend to his flat for a plumb brandy. If your binding order

10 excludes social calls, that intercept will go into the pile that stays in

11 the archives in Ottawa, and maybe that's fine. On the other hand, maybe

12 there will be evidence during the trial from a Prosecution witness who

13 says that General Ojdanic was in Kosovo on that day instructing the

14 troops. Then the social call becomes important to the trial. So which

15 pile should the social call go into? Is it better to have it in the hands

16 of the Trial Chamber or in the archives in Ottawa? That's your call. But

17 when deciding the fate of someone's life, do you want to gamble and leave

18 it buried in the archives? That's why our request doesn't exclude social

19 calls.

20 Let's take the suggestion of the government of Netherlands that

21 the binding order be limited to those conversations bearing on

22 General Ojdanic's participation or mens rea for the crimes. If that

23 suggestion is adopted, an analyst in a basement somewhere in The Hague

24 will be reading that intercept and making the determination about whether

25 the conversation bears on General Ojdanic's participation or state of

1 mind. If in his opinion with his limited knowledge of the case, it does

2 not, then the conversation will stay buried in the archives.

3 Is that what you want? Or is it better that the intercept go into

4 the pile for the Trial Chamber so that you can determine with your

5 knowledge of the case whether it has a bearing on any issue of the case.

6 What do you think is the more responsible way to discharge your duties as

7 the finder of fact?

8 Professor Greenwood has suggested that the request might be

9 limited to specific, major meetings in which General Ojdanic participated

10 in. First of all, during the war, General Ojdanic had meetings every day.

11 All of his meetings and telephone conversations dealt with the war. He

12 was on the job 24/7. But let's say we were required to limit our request

13 to the major meetings. Now, somewhere in the archives in London the

14 analyst is there separating the metre of conversations into two piles. He

15 comes across a conversation between General Ojdanic and a subordinate in

16 which General Ojdanic is told that the army was not involved in Racak and

17 therefore they have no need or duty to investigate or punish anyone for

18 what happened there.

19 Since this conversation did not take place in a major meeting, it

20 gets put in the pile that stays in the archives in London. You never see

21 it. You never know it exists. And you're called upon to make a finding

22 of whether General Ojdanic has command responsibility for failing to

23 punish the perpetrators of the killings at Racak.

24 The United States suggests that the conversations be limited to

25 those relating to the elements of the crimes charged. And there is the

1 same problem. An analyst in Washington is deciding conversation by

2 conversation whether it relates to any of the complex elements of the

3 complex charges here at this Tribunal.

4 Is that how you want to make your decision with critical evidence

5 sitting in some archive? And what happens when ten or 20 years from now

6 some other analyst decides that the Kosovo war is ancient history and

7 declassifies all these intercepts? They become public. Then it turns out

8 your finding of fact were wrong. What kind of legacy would that be for

9 this Tribunal? Shouldn't we have learned here at the ICTY from the

10 Blaskic case that you should demand full disclosure before the trial so

11 that the judgement you render is a reliable one and is the correct one?

12 So those are the choices you make when we talk about specificity.

13 I wish we could be more specific. This isn't a case about a murder that

14 took place one night on the corner of Johan de Wittlaan and

15 Scheveningsstraat. The charges in the indictment are extremely broad

16 covering crimes over a six-month period involving 800.000 people,

17 committed over the territory of Kosovo. General Ojdanic is not charged

18 with being at the scene of any of these crimes but is charged with being a

19 member of an amorphous joint criminal enterprise. The crime of this case

20 must not only scrutinise his own conduct, what he said and what he did,

21 but his role in this enterprise, his relationships and the foreseeability

22 of the conduct of others. And the nature of these charges and the trial

23 that will result from them make it impractical to be more specific, and

24 that was recognised in the Kordic appeal decision. The Kordic appeal

25 decision says the specificity clearly prohibits the use of broad

1 categories as correctly asserted by the Prosecution prohibit the use of

2 categories as such. A requested category of documents has to be defined

3 with sufficient clarity to enable ready identification of documents

4 falling within that category. Contrary to the assertion of the requesting

5 state, this criterion does not automatically exclude all requests that

6 involve the production of hundreds of documents.

7 Considering the nature of the complex charges heard by the

8 Tribunal, it is hard to see how that can be avoided.

9 I submit to you that none of the states has made a factual showing

10 that retrieval of the records sought will be unduly onerous, and in fact

11 it appears that many of the states has not even tried -- have not even

12 tried. The Government of Canada says that we have no basis to believe

13 that Canada has any information responsive to the request. If that's the

14 case, they need not be here. Every state which has searched its archives

15 and told us that they don't have any responsive records, we've withdrawn

16 our application for based on that representation. They've made no showing

17 of any practical difficulties in retrieving the information or that they

18 even tried.

19 The representative from the Netherlands has told us that he's not

20 sure if the information exists, but if he's ordered, he will look into the

21 possibility of whether they have that information.

22 The United Kingdom has not even tried to search and locate the

23 intercepted conversations requested. I wonder how Professor Greenwood

24 would react if he gave an assignment to one of his students and a student

25 came back two years later and had done nothing and he said, "Your

1 assignment wasn't specific enough. I have to trawl through an ocean to

2 find what you asked for." I'd expect that the Professor Greenwood might

3 ask, "Well, did you even try? Did you even do a simple word search to see

4 what you came up with?" I don't think Professor Greenwood would accept

5 those kind much excuses and neither should you.

6 There's been no effort to comply and even try to retrieve these

7 documents, and yet we have submitted a declaration from an expert who has

8 shown from his knowledge and experience that retrieval of documents is not

9 only possible but would not be onerous.

10 The United States appears to have located from its vast archives

11 records responsive to our request, as has the government of Germany

12 indicated that they have and been able to search and find no material,

13 although I don't fully understand whether or not that search was

14 exhaustive enough and whether or not they're objecting on the grounds that

15 the search is too burdensome if they've already completed the search.

16 We made the request for intercepted conversations because we

17 thought it would narrow the request, not broaden it. And I'm relating now

18 to the question you asked, Judge Bonomy, of the United States, because if

19 we just ask for all statements of General Ojdanic or all conversations,

20 then we could get every time he's quoted in the news media or many, many

21 other statements that would be in the possession not only of intelligence

22 agencies but of agencies throughout all these governments, and so we

23 specifically asked for intercepted conversations so that we could narrow

24 our request only to the agencies that intercept and maintain such

25 conversations. And now I think to come back and say that the request is

1 too broad because it contains the word "intercepted conversations" I think

2 defeats at least the purpose of what we were trying to accomplish.

3 And with respect to the mechanics of an intercepted conversation

4 which the state believes they have an interest not disclosing, we believe

5 those are set forth fully in Rule 54 bis F and G which allow the state to

6 take that intercepted conversation and submit it either in camera, ex

7 parte, redacted are or in some cases not submitted at all but submit an

8 affidavit from a responsible official.

9 And so we believe we have been specific as possible under the

10 circumstances and given the stakes involved. If you compare what we've

11 asked for with the requests of the Prosecutor to Serbia and Montenegro

12 that you have granted, you will see that our requests are no less

13 specific.

14 JUDGE ROBINSON: Give us an example.

15 MR. ROBINSON: The minutes of all --

16 JUDGE ROBINSON: You're going to read. Go ahead.

17 MR. ROBINSON: I'm going to give you the examples, yes. The

18 minutes of all meetings of the supreme Defence council between 23 March

19 1999 and 5 October 2003 granted in your fifth decision on the 15th of

20 September, 2003. The minutes of the assembly of the Republic of Serbia

21 and the council for harmonisation of state policy between April 1990 and

22 June 1997, a seven-year period, also in your fifth decision on

23 applications on the 15th of September, 2003. Documentation relating to

24 the joint command for Kosovo and Metohija for the period before and during

25 the war. That's in your 13 this is decision on 17 December 2003, ruling

1 12A. And you granted request number 103, documentation in relation to

2 investigations or prosecutions before any court, military or civilian, of

3 the Federal Republic of Yugoslavia, Republic of Serbia, or the Republic of

4 Montenegro for crimes committed in Kosovo between 1 January and 10 June

5 1999 by personnel including reservists of the army of Yugoslavia or of the

6 Republic of Serbia Ministry of Internal Affairs. And that was in the 13th

7 decision and the 2nd decision.

8 There's no reasons why the intercepts of General Ojdanic between 1

9 January and 20 June should be treated any differently.

10 JUDGE ROBINSON: Did you cite these in your written submissions?

11 MR. ROBINSON: No, I didn't. All of these decisions came after

12 our written submissions, actually.

13 JUDGE ROBINSON: I see.

14 MR. ROBINSON: With respect to the issues of relevance and

15 necessity, I think if you put yourself in the trial of General Ojdanic,

16 the relevance and the necessity of the evidence sought becomes apparent.

17 And I just want to focus for a minute on the third category of information

18 sought, meetings between General Ojdanic and the representatives of

19 countries.

20 You've heard no reason why those records could not be produced.

21 They're relevant to his knowledge and intent and you've heard so much

22 similar evidence in the Milosevic case from these very countries. You've

23 heard General Clark and Ambassador Walker from the United States testify

24 as to statements made to them by President Milosevic and that's been

25 admitted because it's relevant to President Milosevic's knowledge and his

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1 intent. From the United Kingdom, Lord Ashdown testified to his

2 conversations with President Milosevic. Relevant, necessary part of the

3 case. Klaus Naumann likewise gave similar testimony and I submit to you

4 there's no reason why any state who's had a representative -- had contact

5 with General Ojdanic should not be providing that information.

6 Now, what about the efforts to achieve voluntary compliance? I

7 point out to you that ten countries were able to fulfil our requests, and

8 I think it comes down to, that if the country wanted to fulfil the

9 request, they could do it. If they wanted to raise obstacles, they could

10 do that as well.

11 Canada says that all voluntary means should be exhausted, but they

12 never responded to our letters. They've raised all possible objections to

13 disclosure of the information. They remain prepared to discuss all

14 reasonable requests, but they cannot confirm nor deny that intercepted

15 conversations exist.

16 The Netherlands never answered our letter. The United Kingdom

17 never answered our e-mail. They say they never received it until November

18 2002 when it was filed as an annex to our motion. But what did they do

19 then? Did they ask for an extension to negotiate a resolution? No. They

20 filed a pleading raising every possible objection. I suggest the ball was

21 in their court, and instead of hitting it back to us, they stomped on it,

22 they kicked it, and now they want you to declare them a winner because we

23 didn't hit the ball back.

24 It's good public lawyering to raise all these obstacles, but it's

25 bad public policy for a trial chamber to accept them.

1 The United States has spent a lot of time detailing the efforts

2 that they made to provide us the information, but the -- always with the

3 United States two things remained. First, they insisted that the

4 information be provided pursuant to Rule 70, and it was impossible for us

5 to accept that condition, because they insisted that the information would

6 be provided on a confidential basis for the purpose of generating new

7 evidence which is provided directly in the Rule, and that no testimony

8 regarded this information that is provided by the US government could be

9 offered or provided without the written consent of the United States

10 government.

11 Now, Prosecutors are in the business of generating leads for

12 further investigation. That's not the purpose for which we need this

13 material. We need this to use as evidence in the trial, and the United

14 States always insisted as a condition of any production that we agree that

15 before receiving anything, we cannot use it in evidence at this trial

16 without their permission. And that is simply a condition that we can

17 never accept. They also refused to provide intercepted conversations for

18 us, saying that they with provide other statements of General Ojdanic that

19 would not be intercepted conversations, which are the very conversations

20 that we're looking for.

21 So we tried. We met with then. We corresponded with them by

22 e-mail, but it was clear to us that they were imposing conditions that we

23 can never accept.

24 So after the six month process of informal consultations, we

25 concluded we were not going to get a single intercepted conversation from

1 any of the countries at this hearing, and I think the events of this

2 hearing and the last two years have shown that we were correct.

3 I turn now to national security. We started off this hearing with

4 the proposition that the disclosures of national security would be so

5 sensitive that the hearing should be closed to members of the public.

6 You've not had one concrete example of how the content of any intercepted

7 conversation could possibly be damaging to national security, and it's

8 the content that we want. We don't care what the methods were to obtain

9 the conversation. We want the content, and that is -- there's been no

10 showing of any national security interest that would be affected adversely

11 by disclosing the content of General Ojdanic's conversation. But if they

12 discover one, they are free to use the provisions of Rule 54 bis (F) and

13 54 bis (G) and submit that conversation to you in camera, ex parte, with

14 all of the protections that Rule provides.

15 JUDGE BONOMY: Mr. Robinson, does that Rule not apply only prior

16 to this hearing?

17 MR. ROBINSON: Lord Bonomy, I do not believe that's the case. I

18 think that that Rule applies when a state has an objection to providing

19 documents, whether that objection arises before being ordered to do so or

20 after receiving an order under Rule 54 bis. I think, otherwise, we'd be

21 dealing in the hypothetical with that, and we should be dealing with the

22 actual reality of what do these intercepted conversations truly disclose.

23 JUDGE KWON: Or is it not because that -- because we are not

24 dealing with specific items?

25 MR. ROBINSON: Well, we would never be dealing with a specific

1 item in the sense that before the states produces the information there'd

2 always be some degree of speculation as to the content of what is being

3 asked to be produced. So it appears to me that the regime under

4 Rule 54 bis (F) and (G) contemplates submission of the actual material to

5 a Judge or a Trial Chamber, and we haven't reached the stage in this

6 case. And I don't think even in a case of an order specific to one or two

7 documents you would reach that stage until the document was actually

8 produced or ordered to be produced to the Trial Chamber.

9 In conclusion, I would --

10 JUDGE KWON: I'm sorry to interrupt you, but I wonder if I can

11 hear from you whether you are going to respond to the point raised by

12 various states that what Defence is seeking is they're trying to prove a

13 negative. Are you going to deal with that, or do you think it was dealt

14 with by your earlier submission of today?

15 MR. ROBINSON: I would like to deal with that, Judge Kwon.

16 JUDGE KWON: Yes, please.

17 MR. ROBINSON: Because that is ancillary to the main purpose of

18 receiving the interceptions, and that was addressed in our further

19 submission as one further benefit in having a wide scope of intercepted

20 conversations submitted to the Trial Chamber. One benefit of that would

21 be that you could say that we now have the universe of intercepted

22 conversations and nowhere in that universe of intercepted conversations

23 either evidence that General Ojdanic participated in or had the intention

24 to commit a war crime. That's an ancillary benefit to having the -- as

25 many interceptions as possible produced before the Court, But it's not

1 the main reason or motivation for seeking intercepted conversations. The

2 motivation is for the content of the conversations themselves, that they

3 will show, from the content of the conversations, that General Ojdanic --

4 what he did and what he said, and then you can infer from those -- the

5 content whether or not he had the intention or participation in the

6 crimes.

7 JUDGE KWON: Is it not for the Prosecution to prove the accused is

8 guilty, not for the accused to prove he's not guilty?

9 MR. ROBINSON: It certainly is the burden initially on the

10 Prosecutor to prove evidence sufficient for someone to be found guilty,

11 but we can't sit back and simply say they haven't met their burden of

12 proof. That's not how we intend to conduct a trial of someone who is

13 factually innocent. We have an obligation to General Ojdanic and to this

14 Trial Chamber to bring forth any evidence we could get our hands on that

15 would show that General Ojdanic didn't commit these crimes. And although

16 they have the burden of proof, that's -- it's not sufficient for us to sit

17 back and say they haven't fulfilled it. It's necessary when defending

18 someone, especially someone who is innocent, to bring forth evidence to

19 prove, even though we don't have the obligation of it, but to prove that

20 innocence.

21 JUDGE KWON: And I wonder whether Defence has received any of the

22 materials which it is seeking from the state from the Prosecution so far,

23 be it under Rule 66 or 68.

24 MR. ROBINSON: No, not a thing. In fact, the intercepts that we

25 obtained from Croatia pursuant to this procedure we disclosed to the

1 Prosecution, and they have put that on their exhibit list as relevant

2 evidence to be used during the trial. But we've not received, in all of

3 the disclosure, any of the material that we're seeking by the Rule 54 bis

4 order.

5 JUDGE KWON: Thank you.

6 JUDGE ROBINSON: Mr. Robinson, you referred to the Milosevic order

7 made in relation to Serbia, and you say that aspects of that order include

8 requests which are as broad as this request and were, in fact, granted.

9 I'm quite interested in that. It's one thing to cite the jurisprudence

10 from the Appeals Chamber in Blaskic and Kordic, but I think it would have

11 been useful if the submissions had centred more on recent decisions of

12 Trial Chambers so that a comparison could be made. And, in fact, it

13 strikes me that had you made those submissions in writing, then counsel

14 for the respective states might have sought to distinguish those

15 instances.

16 MR. ROBINSON: Yes. I understand, and I'm happy to make such

17 submissions in writing after this hearing if the Trial Chamber feels that

18 those would be of any value.

19 JUDGE ROBINSON: No, no. I only say that because we haven't had

20 any submissions which have looked at orders made by this Trial Chamber,

21 which I think is quite relevant.

22 MR. ROBINSON: Yes, I agree.

23 JUDGE BONOMY: Just a minor point while you're on the subject.

24 Was that application -- it was all the one application you were referring

25 to; is that right? The order that you referred to made by this Chamber,

1 it was just one order you referred to or was it more than one?

2 MR. ROBINSON: Actually, I was referring to three separate orders.

3 JUDGE BONOMY: They weren't all on the same -- they were on three

4 separate occasions, were they?

5 MR. ROBINSON: Yes.

6 JUDGE BONOMY: Was any of them opposed?

7 MR. ROBINSON: I believe the government of Serbia and Montenegro

8 opposed all of the orders. Just to be clear, I'm speaking of the 2nd, the

9 5th, and the 13th decision. And what I did was when I went through and

10 looked -- compared the requests of the Prosecution in their pleadings with

11 the item numbers listed in the Trial Chamber's orders to determine what

12 was the scope of the request and which -- those which had been granted.

13 In conclusion, members of the Trial Chamber and Mr. President, I'd

14 like to emphasise that it is simply unacceptable for these states to

15 create an International Tribunal to arrest an individual and imprison him

16 in an international gaol, to hold a trial where witnesses from all these

17 countries give evidence for the Prosecution, and at the same time to

18 withhold from the Defence relevant evidence to the crimes to which he is

19 charged.

20 All of us have obligations here. As Trial Judges, you have an

21 obligation to use your power to obtain all relevant evidence. As

22 General Ojdanic's lawyer, I have an obligation to seek every piece of

23 evidence that can help him during his trial. And under Article 29, the

24 states have a clear obligation to cooperate with the production of

25 documents with this International Tribunal.

1 We all have a compelling responsibility to see that justice is

2 done, and in this case if we fail, then a innocent man may well spend the

3 rest of his life in prison. So I'd ask you to consider that when

4 deliberating on this order, and if someone has to go the extra mile, I ask

5 that you do so. Thank you.

6 JUDGE ROBINSON: Thank you, Mr. Robinson.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: There are three approaches reflected in the

9 submissions by the states as to how this matter should be determined.

10 Some states said the application should be dismissed and didn't make any

11 comment on the possibility of a subsequent application being brought.

12 One state, I believe Netherlands, said dismiss but appeared to

13 envisage the possibility of a subsequent application. Another state, the

14 united -- yes. Another state, the United Kingdom, said dismiss, dismiss

15 outright, and without the possibility of a subsequent application being

16 brought.

17 May I bring -- may I bring your attention -- draw your attention

18 to paragraph (H) of Rule 54 bis, which says: "Rejection of an application

19 made under this Rule shall not preclude a subsequent application by the

20 requesting party in respect of the same documents or information if

21 new circumstances arise." And I wanted to ask Professor Greenwood, since

22 he was quite emphatic about this, what comments he would have on this

23 matter.

24 MR. GREENWOOD: Thank you, Mr. President. I don't wish there to

25 be any misunderstanding about the nature of the British government's

1 submissions. My submission yesterday was that the present application is

2 misconceived, that it would not be possible from that application to craft

3 an order, and therefore it is appropriate, in our submission, that the

4 Tribunal dismiss the application outright.

5 Now, I didn't speculate about the possibility of a fresh

6 application being made. What I said in my submissions was that the

7 correct way forward was for the Defence, if they wished to follow this

8 matter up, to contact the governments and make a fateful application -- a

9 faithful attempt to apply Rule 54 bis.

10 Now, Of course, if at the end of that process they wish to make a

11 fresh application to this Tribunal, then under Rule 54 bis (H), they would

12 be able to do so. I hope that was what I said yesterday.

13 JUDGE ROBINSON: If new circumstances arise. It depends on the

14 interpretation of that phrase "new circumstances."

15 MR. GREENWOOD: Yes, indeed. If new circumstances arise. Now,

16 whether those new circumstances would be contained in something in the

17 correspondence between the Defence and the governments is another matter.

18 JUDGE ROBINSON: Yes.

19 JUDGE KWON: So can I take it as rule (H), Rule 54 bis (H),

20 applies to the same document, so if specified later, is not -- cannot be

21 considered as the same document which we are dealing with now. It's a bit

22 different, but can I hear from you on that observation.

23 MR. GREENWOOD: Mr. President, I think that the answer would be

24 that given the breadth of the present request, to make a fresh application

25 requesting some of the documents that fell within the scope of that would

1 be indeed an application for the same documents.

2 JUDGE KWON: Thank you.

3 JUDGE ROBINSON: Thank you very much, Professor Greenwood.

4 I don't know whether Mr. Lammers of the Netherlands or any other

5 representative would wish to comment on this issue.

6 If not, I am to say that the Trial Chamber expresses its gratitude

7 for all the submissions that have been made. We'll consider this matter

8 and give a decision as soon as possible.

9 The hearing is adjourned.

10 --- Whereupon the Motion Hearing adjourned

11 at 5.52 p.m.

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