1 Wednesday, 1 December 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused Ojdanic entered court]

5 [The accused Milutinovic and Sainovic not present]

6 --- Upon commencing at 3.06 p.m.

7 JUDGE ROBINSON: Will the Registrar call the case, please.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.

9 This is the Case Number IT-99-37-PT, the Prosecutor versus Dragoljub

10 Ojdanic, Milan Milutinovic, and Nikola Sainovic.

11 JUDGE ROBINSON: May we have the appearances, starting with the

12 Prosecution.

13 MR. NICE: The Prosecutor herself attends and I and Ms. Romano,

14 as you know, have had conduct of the case thus far and Mr. Hannis on her

15 right who is shortly to take over the conduct of the case, because Ms.

16 Romano is leaving the Tribunal.

17 JUDGE ROBINSON: We're very sorry to hear that, but we wish her

18 well.

19 Other appearances starting with the accused Ojdanic.

20 MR. VISNJIC: Thank you very much. Tomislav Visnjic,

21 Mr. Robinson, and Mr. Selezan for the Defence.

22 JUDGE ROBINSON: I'll start with the countries on my list. For

23 Canada.

24 MS. SWORDS: Yes, Colleen Swords, John Currie, Elaine Krivel and

25 Jacqueline Paulumbo for the Government of Canada.

1 JUDGE ROBINSON: Thank you. I see Canada is well-represented.

2 For France.

3 MS. DUBROCARD: [Interpretation] Your Honour, my name is Michele

4 Dubrocard, and I represent France.

5 JUDGE ROBINSON: Thank you.

6 Germany.

7 MR. LÄUFER: Mr. President, agent for the Federal Republic of

8 Germany, Christian Tomuschat, Thomas Läufer, Susanne Wasum-Rainer also

9 for the Government of the Federal Republic of Germany, and Mr. Reimann,

10 Counsellor and legal advisor at the embassy here in Den Haag.

11 JUDGE ROBINSON: Thank you very much.

12 And for the Netherlands.

13 MR. SWAAK-GOLDMAN: Your Honour, Johan Lammers for the Netherlands

14 and Olivia Swaak-Goldman, also for the Netherlands.

15 JUDGE ROBINSON: Thank you.

16 And for the United Kingdom.

17 MR. WHOMERSLEY: Mr. Chris Whomersley from the Foreign Office in

18 London representing the Government of the United Kingdom together with

19 Christopher Greenwood as counsel and Dominic Raab from our embassy in The

20 Hague. Thank you.

21 JUDGE ROBINSON: For the United States of America.

22 MR. JOHNSON: Mr. Clifton Johnson for the United States, along

23 with Mr. David Kaye, Lisa Brooks, and Wheatly Alcock.

24 JUDGE ROBINSON: For Bosnia.

25 MS. IBRAHIMOVIC: [Interpretation] Zikreta Ibrahimovic. I

1 represent the attorney general of Bosnia and Herzegovina.

2 JUDGE ROBINSON: Thank you.

3 And for Turkey.

4 MR. NALCIOGLU: Mr. President, I am a Military Judge Orhan

5 Nalcioglu as assistant legal advisor for Turkey's general staff and

6 delegate for Turkey.

7 JUDGE ROBINSON: Thank you very much.

8 Well, as you all know, this is an application by the accused

9 Ojdanic for the production of information and documents pursuant to Rule

10 54 bis. He is seeking binding orders from NATO, a number of NATO

11 countries and some other countries. We have had replies from a number of

12 countries. And the Chamber issued a scheduling order setting out the

13 order in which we will hear the submissions today.

14 But before I move into the submissions, there are a few

15 procedural matters that should be addressed. And first, is it Mr.

16 Visnjic or Mr. Robinson who will be -- Mr. Robinson, yes. I just want to

17 clarify the number of countries from whom you are now seeking binding

18 orders. I will read the list which I have and you can correct me. And

19 this would arise from the responses that have been received. Some

20 progress would have been made. You are seeking orders from NATO,

21 Belgium, Canada, the Czech Republic, France, Germany, Greece, Hungary,

22 Iceland, Italy, Luxembourg, England, and the United States.

23 MR. ROBINSON: That's correct, Mr. President.

24 From the list of those who will make submissions today, there are

25 two in respect of whom they are not seeking orders, Bosnia and Turkey.

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Mr. Robinson, in respect of Bosnia and Turkey,

3 do I understand that you are not seeking orders from them and the

4 application is withdrawn where they are concerned?

5 MR. ROBINSON: Yes, Mr. President. We received on the 10th of

6 February, 2003, a letter from the Republic of Turkey indicating they had

7 no records responsive to our request. Similarly continue the 3rd of

8 March, 2003, we received a letter from the Republic of Bosnia and

9 Herzegovina saying that they too had found no records responsive to our

10 request. So unless the representatives here -- unless that position has

11 changed and they have since found something, we are withdrawing our

12 application as to them.

13 JUDGE ROBINSON: May I first ask the representative of Bosnia,

14 representative of Bosnia -- and I have to apologise for this courtroom.

15 It's not -- it has certain difficulties. But I can see the

16 representative of Bosnia. You have heard what Mr. Robinson just said.

17 Can you confirm that the position is the same, you have no information,

18 no new information?

19 MS. IBRAHIMOVIC: [Interpretation] Your Honour, I confirm also

20 that we do not have any new information about that, however, from the

21 Chamber we received a summons to this hearing and we wanted to show

22 cooperation with the ICTY. But we have no additional or new information.

23 Former information was sent by individual institutions of the entities in

24 Bosnia and Herzegovina. Now we have a changed situation, in so far as

25 the security functions have been unified at the level of Bosnia and

1 Herzegovina and we have a ministry of justice at the level of Bosnia and

2 Herzegovina.

3 Before coming to this hearing I consulted those two institutions,

4 the ministry of justice of Bosnia and Herzegovina and the intelligence

5 service of Bosnia and Herzegovina state, and they confirmed that they

6 have not uncovered any new information or data. And this is -- and to

7 that extent, the Defence's attitude and opinion holds. Thank you very

8 much, Your Honour.

9 JUDGE ROBINSON: Thank you very much, in particular for your

10 spirit of cooperation. The representative of Turkey.

11 MR. NALCIOGLU: Mr. President, Turkey as a member of NATO country

12 had troops in Kosovo, but after the incident -- not between the times of

13 crimes, but our troops had been there after the incidents of the war

14 crimes alleged by the Prosecutor.

15 As a NATO country, we are here to cooperate if you have need, for

16 justice. And if you have -- we have sent some documents produced by

17 Turkey, but to be frank, we -- our troops had no intelligence capacity

18 for interception on this point, because we have only a small troop

19 that -- there is no special duty for interceptions. But if you do,

20 members of the court or the counsel of the Mr. Ojdanic, we ask something

21 on the case, we will be ready. Thank you.

22 JUDGE ROBINSON: Thank you very much for volunteering.

23 In view of what Mr. Robinson has said, the Chamber does not require the

24 presence of the representatives of Bosnia and Turkey, but if they wish to

25 remain in the proceedings, they are perfectly free to do so.

1 The next matter I want to deal with is an application from

2 Canada, United States, and the Netherlands for in camera hearing. The

3 Chamber has decided that it will proceed in public session until an issue

4 of in camera hearing is raised. When it is raised, we will then deal

5 with it.

6 There is one other matter. That's the presence of the

7 Prosecutor. Madam Prosecutor, an application had been made for the

8 Prosecutor to be present during the --

9 MS. DEL PONTE: Exactly.

10 JUDGE ROBINSON: -- the proceedings.

11 MS. DEL PONTE: As I was informed, the Defence counsel have

12 nothing to oppose about our presence here.

13 JUDGE ROBINSON: There is no objection from the accused?

14 Mr. Robinson.

15 MR. ROBINSON: Yes, Mr. President. We would like them to be here

16 and have no objection.

17 JUDGE ROBINSON: Thank you.

18 Mr. Johnson for the United States.

19 MR. JOHNSON: Thank you, Your Honour. We, too, have no objection

20 to the Prosecution in this hearing, but if you wouldn't mind going back

21 to the previous matter we did have some additional thoughts and reasons

22 why we would request that this hearing be conducted in closed session.

23 If Your Honours would permit, I would like to briefly some of those

24 additional matters for your consideration.

25 JUDGE ROBINSON: Yes, please go ahead.

1 MR. JOHNSON: Thank you, Your Honours.

2 JUDGE ROBINSON: Before you do that, may I just say that the

3 Prosecutor can be present.

4 MS. DEL PONTE: Thank you, Your Honour.

5 MR. JOHNSON: Thank you, Your Honours.

6 As you indicated on Friday, the United States, Canada, and the

7 Netherlands submitted written requests for the proceedings to be

8 conducted in closed session. Since that time, the United Kingdom,

9 Germany, France and Turkey have indicated to us that they too support

10 this request, and therefore my presentation to you is on behalf of all of

11 the NATO countries participating in this hearing.

12 We believe that Your Honours should grant our request that the

13 session proceed in closed proceedings for the following reasons. First,

14 Rule 54 bis itself provides for states to make such a request and for it

15 to be granted by the Chamber when there is prejudice to national security

16 interest. In this particular case the heart of the Defence application

17 that is before you relates not just to intelligence information but also

18 to the sources and methods for producing it. That is at the core of what

19 they are requesting. All of the written submissions that you have before

20 you have indicated that the requested information would prejudice the

21 national security interests of the participating countries and have

22 objected on that on bases. The Defence itself in its application

23 acknowledges that: "The nature of this information sought by this

24 request impacts on national security." Indeed, the declaration they

25 submitted earlier in November was a detailed analysis of information

1 sources and methods.

2 So to our mind it is inevitable that the discussion of this

3 application will touch and will touch repeatedly on intelligence

4 information, intelligence sources and methods which are of the most

5 sensitive national security concern.

6 Now, the request that we have before you for reconsideration is a

7 narrow one. Although the rules provide that we could request additional

8 protective measures, such as that this hearing be conducted ex parte,

9 without the presence of the Defence, or that a transcript not be made,

10 we're not requesting that. We believe that our interests can be

11 protected if the session itself is conducted in closed session and

12 participation is limited to the Prosecution, the participating states,

13 and court personnel.

14 I would also like to briefly touch on a couple of the matters

15 that were raised by counsel for the Defence in their -- in the written

16 opposition they submitted. The Defence, for example, noted that our

17 pleadings were in public. And while that is true, the public pleadings

18 were reviewed carefully before they were submitted to ensure that

19 national security interests were protected. But in this proceeding we

20 expect these issues to be discussed in additional detail. Moreover, we

21 can't predict now what Your Honours or the Defence will ask us and which

22 areas will be explored in relation to these proceedings. What we do know

23 is that they involve an application that centres on intelligence to an

24 extraordinary degree.

25 We also do not think it is conducive to the efficient conduct of

1 the proceedings for us to move repeatedly between open and closed

2 sessions. First, we think that would be disruptive to our presentations

3 to the Court; but secondly, the fact that we would at particular

4 instances signal a desire to go into closed session would in and of

5 itself flag an area of heightened national security concern. We think

6 that our proposal strikes a sensible balance between these competing

7 equities so we can have a detailed and efficient hearing on this matter

8 with the participation of the Defence in a manner that's protective of

9 our national security interests.

10 So we would therefore request, Your Honours, to please reconsider

11 our request on behalf of the participating NATO countries. And I thank

12 you.

13 JUDGE ROBINSON: Thank you, Mr. Johnson.

14 Mr. Robinson, in response.

15 MR. ROBINSON: We strongly oppose the hearing in closed session.

16 We think this is a matter of great public interest. Rule 54 bis (F) is

17 permissive, it's not mandatory. It says it may be closed. I suggest

18 that that particular rule deals with a session in which the Judges are

19 dealing with particular documents in which there's a need for a closed

20 session.

21 I can assure you that I can make my entire presentation today

22 without any reference to any sensitive matters of national security,

23 since I know no sensitive information about any country's national

24 security. I think the best way to proceed --

25 JUDGE ROBINSON: So you don't agree, then, with the submission

1 that security concerns are so pervasive in this application that it would

2 not be efficient of proceedings, because we would be going in and out

3 from public to private session repeatedly.

4 MR. ROBINSON: Mr. President, I can't speak for what the others

5 may say at this hearing, but I know from our presentation there's

6 absolutely no reason to go into private or closed session. But if, for

7 example, during the presentation of the United States they wish to raise

8 something that they feel is sensitive, they can make an application at

9 that time with respect to that portion of the hearing.

10 But to close the entire hearing to the public would be like

11 killing an ant with an elephant gun. It's not necessary and it's not

12 within the practice of the Tribunal with respect to having open and

13 closed proceedings. They should be narrowly tailored to protect the

14 interests that need to be protected, and that can be done when the party

15 seeking closed session when there's something particularly sensitive to

16 be said. We wouldn't object at that point if such a showing was made.

17 Thank you.

18 JUDGE ROBINSON: We'll consider that.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: In considering this matter we have to

21 balance the accused's right of public hearing against the legitimate

22 concerns of the states of their national security. We believe that

23 certainly Mr. Robinson has indicated that in his address he will not have

24 any matters touching upon national security such as would require us to

25 go into a closed session. So as far as he's concerned, he can -- his

1 submissions can be in open session.

2 When we come to consider the arguments raised by the United

3 States, there are proper concerns; but we believe they can be addressed

4 by identifying them when they arise, and that is what we will do. But if

5 in the course of the proceedings matters reach a stage where it becomes

6 inefficient to continue moving from public to private session repeatedly,

7 then we'll consider going into closed session for the rest of the

8 proceedings. But at this stage, we'll begin in open session. Mr.

9 Robinson will make his presentation in open session. And the states will

10 make their presentations in open session, subject to the exception that I

11 have identified.

12 We begin then with the applicant, Mr. Robinson.

13 MR. ROBINSON: Thank you, Mr. President, members of the Trial

14 Chamber. I'll just take a moment to give myself a proper introduction.

15 I am Peter Robinson. I am privileged to be counsel for General Ojdanic

16 here at the ICTY, along with my colleagues. I am a proud citizen of the

17 United States of America, member of the bar, and resident of California.

18 I would like to thank the states for their participation in General

19 Ojdanic’s request. I appreciate all the effort that has gone into

20 dealing with this request, and I hope that these proceedings can result

21 in a constructive discussion that will end in a resolution consistent

22 with both General Ojdanic's right to a fair trial and the resources and

23 secrets of the states.

24 What we've requested is three sorts of information: First,

25 intercepted conversations in which General Ojdanic is a party, between

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1 the 1st of January and the 20th of June 1999; the second, intercepted

2 conversations in which General Ojdanic is mentioned, again between the

3 1st of January and the 20th of June, 1999, which is the period of the

4 events charged in the indictment; also with the limitation that the

5 conversation originate in the Republic of Yugoslavia and also with the

6 limitation that it contained the topic of Kosovo. Our third request are

7 statements by General Ojdanic to representatives of the states or persons

8 working on their behalf, again limited to the period covered by the

9 events in the indictment, 1st of January to the 20th of June, 1999.

10 It's an extraordinary request by an accused. To my knowledge,

11 it's the first time at any Tribunal that an accused has requested and has

12 been willing to have public disclosure of his unguarded, private

13 conversations. The reason for the application is simple. General

14 Ojdanic is not guilty. He never planned, instigated, ordered, committed,

15 or otherwise aided and abetted any war crimes. He had no knowledge of

16 any plan to deport Albanians from Kosovo, and he never joined any

17 criminal enterprise to do so. And as a commander, his standing orders,

18 from which he never varied, were that war crimes were to be prevented and

19 punished. We need this evidence that we're seeking in this proceedings

20 today to prove that.

21 While the request from the accused is extraordinary, there are

22 already in place well-established legal principles at this Tribunal to

23 deal with it. We have provisions in our Statute, our Rules, two

24 decisions from the Appeals Chamber, and decisions from this Trial Chamber

25 in the Milosevic case relating to Serbia and Montenegro. So we're not

1 asking you to make new law; we're asking you to fairly apply existing

2 principles.

3 Article 29 of Statute provides that "states shall comply without

4 undue delay with any request for assistance or an order issued by a Trial

5 Chamber, including but not limited to the taking of testimony and

6 production of evidence." This was part of Resolution 827 unanimously

7 adopted by the Security Council including the United States, United

8 Kingdom, and France. In the comments of the Kingdom of the Netherlands

9 at the time of the adoption of Article 29, they said Chapter 7 of the

10 United Nations Charter "provides the necessary basis to ensure in every

11 way that states cooperate with every possible way with the investigation

12 and prosecution of war crimes in the former Yugoslavia." In the Appeals

13 Chamber decision in the Blaskic case, Article 29's provisions were held

14 to be valid and mandatory. So we are invoking Article 29 in the orders

15 we seek today.

16 We know that NATO and four countries have not responded at all to

17 the request, those countries being Belgium, Iceland, Luxembourg and

18 Poland. It's our position that regardless of the outcome of these

19 proceedings, An order should be submitted to them, because they have

20 waived their objections both by not being present here and by not

21 responding in writing to the Trial Chamber's orders.

22 With respect to Article 29 those that have appeared here are

23 seeking to be classified in some cases as concerned bystanders, but the

24 Blaskic appeals decision makes it clear that Article 29 applies to all

25 countries. The Appeals Chamber said that it should again be emphasised

1 that the plain wording of Article 29 makes it clear that the obligation

2 it creates is incumbent upon all member states, irrespective of whether

3 or not they are states of the former Yugoslavia. The Government of

4 Canada says that it's a bystander, not implicated in the activity under

5 investigation, and therefore it should not be subject to the terms of

6 Article 29. That same argument is made by the Kingdom of Netherlands and

7 the United Kingdom.

8 First I would point out if someone were to take a walk around

9 downtown Belgrade and see what was the Ministry of Defence or take a look

10 at the Chinese embassy one would see the damage done by these so-called

11 bystanders to this conflict. The Government of Canada and all the NATO

12 members were not bystanders, they were belligerents. And the Blaskic

13 opinion says that as former belligerents parties they are more likely

14 hold important evidence needed by the Tribunal.

15 The Government of the United Kingdom seems to indicate that

16 because it made the most strenuous efforts to prevent the offences

17 charged in the indictment, it somehow should be exempted from having to

18 disclose materials pursuant to Article 29. And I would cite the Trial

19 Chamber to the Todorovic decision, in which you, Judge Robinson,

20 participated in involving SFOR when all they did was arrest him, but they

21 were required to provide records about that arrest. And they were not

22 exempted from Article 29. And no country here should be so exempted.

23 We'll also governed by Rule 54 bis of the rules, which provides

24 that "a party requesting an order under Rule 54 that a state produce

25 documents or information shall apply in writing to the relevant Judge or

1 Trial Chamber and shall meet three criteria: one, to identify as far as

2 possible the documents or information to which the application relates;

3 two, to indicate how they are relevant to any matter in issue before the

4 Judge or Trial Chamber and necessary for a fair determination of that

5 matter; and three, to explain the steps that have been taken by the

6 applicant to secure the state's assistance."

7 I note that the Trial Chamber has already made a preliminary

8 finding with respect to each of these matters. I'd like to discuss them

9 very briefly. First, with respect to the question of specificity. In a

10 Scheduling Order of the 22nd of November, 2002, the Trial Chamber said:

11 "Considering that the applicant has met the requirements of Rule 54 bis

12 (A) in that the applicant has satisfied the Trial Chamber as far as

13 possible the documents or information to which the application relates."

14 We're guided on the issue of specificity by the Blaskic decision

15 which says that documents should be identified as far as possible and in

16 addition be limited in number. And the Kordic appeals decision was

17 probably the most direct on point with respect to the specificity

18 requirement. It says that "the underlying purpose of the requirement of

19 specificity is to allow a state to be able to identify the requested

20 documents for the purpose of turning them over to the requesting party.

21 The requirement of specificity clearly prohibits the use of broad

22 categories, but does not prohibit the of categories as such. A requested

23 category of documents has to be defined with sufficient clarity to enable

24 ready identification of documents falling within that category."

25 The Kordic Appeals Chamber said that that doesn't exclude all

1 requests that involve the production of hundreds of documents because

2 considering the nature of the complex charges heard by the Tribunal it's

3 hard to see how that can be avoided. Consequently, the critical question

4 is whether the obligation falling upon the state is unduly onerous,

5 taking into account whether the difficulty of producing the evidence is

6 not disproportionate to the extent that the process is strictly justified

7 by the exigencies of the trial.

8 And indeed, in the Milosevic's decisions with respect to Serbia

9 and Montenegro, this Trial Chamber has ordered production of categories

10 of documents including minutes of meetings of bodies covering up to a

11 seven-year period.

12 We note that the standard of ready -- whether there can be ready

13 identification of documents sought has apparently been met by a number of

14 countries that have responded to our request. We node that Bosnia,

15 Turkey, Norway, Portugal, Albania, Denmark, Macedonia, Romania, Spain and

16 Croatia have been able to conduct searches of their records within the

17 criteria given, and in fact Croatia has produced documents, intercepted

18 conversations, pursuant to our request.

19 With respect to specificity, we took the extra step of consulting

20 with an expert Witness, James Bamford and we got a declaration from him

21 to assist the Trial Chamber. And in that declaration he describes in

22 detail the process, to his knowledge, that would have to be undertaken to

23 obtain the records and his opinion that the records as we've described

24 them are not unduly onerous to be produced, at least with the United

25 States, the country with which he's familiar.

1 I would note that in the United States we have what's called the

2 Privacy Act, which is found at Title 5 of the United States Code,

3 Section 552 (A). And this act says that "any citizen of the United

4 States by submitting his name and date of birth to an agency of the

5 government can have the government produce for him all of the records in

6 its possession which relate to that person." And so the United States,

7 at least, has the capacity to search by name to locate all of the records

8 relating to that person. And indeed it does so as a matter of regular

9 course and has been doing so for many years. So we believe the requested

10 categories that we've set out adequately allow the states to make ready

11 identification of the documents that we're seeking.

12 Now, how do we know that they have useful information? Canada

13 says that our request is based on mere speculation that the states might

14 have something of value to us. Well, first we have the declaration of

15 the expert James Bamford who said that interceptions by the United States

16 and United Kingdom which have included those of General Ojdanic, given

17 his position, and giving communications involving an army chief of a

18 country of which the United States was at war would likely be retained.

19 Media reports, including those in the New York Times reported that the

20 arsenal of modern spying, satellites and drones that hovered in the sky

21 during the Kosovo conflict has yielded reams of material. There are

22 intercepts of telephone and radio conversations between commanders in the

23 field, and that's quoted at our motion on paragraph 4. And the

24 Washington Post, with respect to the Racak incident, indicated that the

25 orders came by Serb-led Belgrade government, according to telephone

1 intercepts by Western governments. And the information which was quoted

2 from those alleged telephone intercepts was said to have been leaked to

3 the news media by Western sources familiar with the intercepts.

4 In Newsweek, Miroslav Tudjman, the son of the late president of

5 Croatia, said that the American CIA spent at least $10 million on

6 Croatian listening posts, to intercept telephone calls in Bosnia and

7 Croatia.

8 Indeed, the Bosnian government did turn over intercepts,

9 including telephone conversations of General Ojdanic, conversations about

10 General Ojdanic in which others were speaking. And those conversations,

11 for example, show General Ojdanic's relationship with President

12 Milosevic; his genuine concern for eight soldiers who happen to have been

13 kidnapped by the KLA at the time; his efforts to find a peaceful solution

14 to that situation; to the fact that in his conversations that were

15 intercepted there was no mention of expelling ethnic Albanians or

16 retaliations for the war crimes in retaliation for the kidnapping of

17 these soldiers. The conversation between President Milosevic and

18 Milutinovic also shows that he was directed to act in a proper way

19 without war crimes being committed.

20 We also know by reading the book written by General Wesley Clark

21 that he had several conversations with General Ojdanic, and that comes

22 within Category C of which we're seeking by this order.

23 And in an article written by a fellow who used to be the

24 coordinator of war crimes in Kosovo between the United Kingdom and the

25 ICTY, David Gowin, published in the 13th volume of the International

1 Journal of the International Law at page 913, he says: "The United

2 Kingdom broke new ground in the provision of intelligence information in

3 Kosovo to the Office of the Prosecutor and that provided information

4 about the actions and decisions of the FRY government and actions,

5 deployment, composition, and practices of the FRY police, army, and

6 paramilitary forces."

7 So we have a good basis for believing that if the orders that

8 were requested were issued, valuable information will be disclosed that

9 will be relevant to the trial. We don't say that we have the magic words

10 for describing the records that we're seeking. We've done our best. I

11 have to say that the responses of the states have failed to suggest any

12 workable modifications to our requests.

13 Canada has suggested that the requests should be narrowed to only

14 those conversations showing whether General Ojdanic participated in

15 crimes or in a joint criminal enterprise; whether war crimes were

16 reported to him; his state of mind; and the prevention and punishment of

17 war crimes. The Netherlands has suggested that disclosure should be

18 limited to those conversations which have a bearing on General Ojdanic's

19 participation in, knowledge of, or state of mind concerning the crimes

20 alleged. We suggest that these criteria are too subjective to be

21 practical. It's the Trial Chamber or the Defence who's in the best

22 position to know whether a conversation bears upon these issues.

23 For example, in the Croatian intercepts we've received, even

24 innocuous references made to someone unfamiliar with the case may not

25 appear to have any bearing on any of these issues can well be highly

1 relevant to the issues before the Trial Chamber in this trial.

2 In addition, even innocuous statements may be useful in

3 establishing General Ojdanic's presence in a particular place or his

4 occupation with other tasks at a particular time.

5 The Netherlands and the United Kingdom and the United States have

6 also suggested that General Ojdanic should be required to specify the

7 communications and statements that he would like copies of. I would ask

8 you to think for a minute if you can remember all the people you talked

9 to between January 1 and June 20th 1999. I know General Ojdanic can't.

10 And there are no records that would be complete enough to be able to

11 allow him to reconstruct such a thing. So there's no way in which we can

12 provide to the states some kind of lists of everyone he spoke to during

13 that six-month period. Nor can he be expected to recall the substance of

14 those conversations.

15 And so we would respectfully submit and we're open to -- looking

16 forward to listening to suggestions here and over the next day or two,

17 but we've yet to hear any practical details on why the states cannot

18 retrieve the material sought by General Ojdanic as framed and what

19 constructive improvements can be made if necessary to those requests.

20 The second criteria under Rule 54 bis is that of relevance. And

21 I can be brief on this. You've made a preliminary finding of relevance

22 in your order of 22 November 2002. And the Appeals Chamber in Kordic has

23 been very clear, the state from which documents are requested does not

24 have the locus standi to challenge their relevance. So I will say no

25 more about relevance. I don't believe that any of the states should be

1 addressing the issue of relevance, but if the Trial Chamber has any

2 questions about relevance, either now or at the conclusion of the

3 proceedings, I would be happy to address that.

4 JUDGE ROBINSON: Mr. Robinson, is that what that statement means?

5 Did it mean that the question of relevance is ultimately a matter for the

6 Trial Chamber? It's not a matter to be determined by the requesting

7 state. It doesn't mean that that state can't raise it. It can raise it

8 but it can't determine it; that's a matter for the Trial Chamber.

9 MR. ROBINSON: Respectfully, Mr. President, I disagree. It says

10 the state from which the documents are requested does not have the locus

11 standi to challenge their relevance. Challenge. That's because the

12 states are not in a position to know the relevance. That's between the

13 Prosecution and the Defence. The Prosecution can probably challenge the

14 relevance of documents that are being sought by the Defence from a third

15 party, if it had an inclination to do so.

16 But the states do not have under the Kordic case, at least the

17 way I read it, it's none of their business basically as to whether

18 something is relevant or not. That's between the parties to a

19 litigation. Certainly the Trial Chamber on its own can raise the issue

20 of relevance and indeed has to decide it. So I'm happy to discuss it if

21 it's something you want to hear. But it's our position that under the

22 Kordic appeals decision it's not a proper subject for this hearing.

23 JUDGE ROBINSON: Proceed on.

24 JUDGE BONOMY: Can you direct me to the paragraph in Kordic where

25 that's dealt with.

1 MR. ROBINSON: Yes, Your Honour. That's at paragraph 40.

2 JUDGE BONOMY: Thank you.

3 MR. ROBINSON: I'll turn now to the third prong of the test under

4 Rule 54 bis, and that is our efforts to obtain the material from the

5 states prior to seeking a binding order. Again, in your order of the

6 22nd of November, you found that our steps that we had taken were

7 adequate. We believe that was a correct finding. On the 15th of May,

8 2002 -- actually less than a month after General Ojdanic voluntarily

9 surrendered to this Tribunal, we sent a letter to all of the states and

10 we asked them to voluntary submit material which we described in three

11 requests. The requests cover the same information that is pending before

12 the Trial Chamber, but we narrowed them. And the reason we did that is

13 we discussed with states who responded to our letter their concerns and

14 we tried to take those into account and do the best we could to make the

15 requests as narrow as possible to still accomplish what we felt needed to

16 be accomplished. And that's the result of our application in November

17 2002.

18 We had intended to file our application within 30 days of sending

19 the letters to the states, but we delayed for six months while we met

20 with the United States and communicated with the other states. We

21 ultimately narrowed our requests based on their objections. When we

22 filed our motion on the 13th of November, 2002, we also served it on all

23 the states directly and invited them to contact us to try to arrange for

24 some satisfactory resolution.

25 It's now been two years. We've never received any documents and

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1 from the responses from the states that are here, I think we can see they

2 are unwilling to provide the material we seek, whether by informal

3 request or formal motion. So we believe that we've satisfied the third

4 criteria under Rule 54 bis.

5 Now, there also arises the question whether states have the right

6 to refuse to provide information on national security grounds. And the

7 answer to that question is a clear no, and that is provided by the

8 Blaskic's appeals decision. The Appeals Chamber said: "To allow

9 national security considerations to prevent the International Tribunal

10 from obtaining documents that might prove of decisive importance to the

11 conduct of trials would be tantamount to undermining the very essence of

12 the International Tribunal's functions. To grant states a blanket right

13 to withhold for security purposes documents necessary for trial might

14 jeopardise the very function of the International Tribunal and defeat its

15 essential object and purpose."

16 Now, the United States on February 28th of 2003 made a submission

17 that the disclosure of intercepted conversations -- indeed, even

18 confirmation that it does or does not exist would cause great harm to the

19 national security interests of the United States. I would now like to

20 play for the Trial Chamber about 80 seconds of a video of Secretary of

21 State Colin Powell addressing the Security Council of the United States

22 just earlier than that, that bear on the question of intercepted

23 conversations.

24 May that now be played, Mr. President.

25 JUDGE ROBINSON: Yes.

1 [Videotape played]

2 COLIN POWELL: Mr. President, Mr. Secretary-General,

3 distinguished colleagues, I would like to begin by expressing my thanks

4 for the special effort that each of you made to be here today. This is

5 an important day for us all as we review the situation with respect to

6 Iraq and its disarmament obligations under UN Security Council

7 Resolution 1441.

8 MR. ROBINSON: We're going to play two other portions immediately

9 thereafter.

10 JUDGE ROBINSON: It may --

11 [Videotape played]

12 COLIN POWELL: ... international community. Indeed the facts and

13 Iraq's behaviour --

14 "Mr. President, Mr. Secretary-General, distinguished colleagues,

15 I would like to begin by expressing my thanks for the special effort that

16 each of you made to be here today. This is an important day for us all

17 as we review the situation with respect to Iraq and its disarmament

18 obligations under UN Security Council Resolution 1441 --

19 "-- made no effort to disarm as required by the international

20 community. Indeed, the facts and Iraq's behaviour show that Saddam

21 Hussein and his regime are concealing their efforts to produce more

22 weapons of mass destruction. Let me begin by playing a tape for you.

23 What you are about to hear is a conversation that my government

24 monitored. It takes place on November 26th of last year, on the day

25 before United Nations teams resumed inspections in Iraq. The

1 conversation involves two senior officers, a colonel and a brigadier

2 general from Iraq's elite military unit, the Republican Guard.

3 'On January 20th, four days later, Iraq promised the inspectors

4 it would search for more. You will now hear an officer from Republican

5 Guard headquarters issuing an instruction to an officer in the field.

6 Their conversation took place just last week, on January 30th.'"

7 MR. ROBINSON: Mr. President, while the United States was

8 representing to this Tribunal that the mere conversation of -- that

9 intercepted conversations does or did not exist would cause grave harm to

10 the national security interests of the United States, they were at the

11 same time playing for the public intercepted conversations that had been

12 intercepted only one week earlier in Iraq.

13 So it's clear that there has to be some incentive to make this in

14 the United States' national interest to have these conversations

15 disclosed. And I suggest to you that such an incentive must come from

16 this Trial Chamber under Rule 54 bis because the representations that

17 were made to you by the United States show that they simply don't want to

18 discuss or disclose intercepted conversations in this forum because it

19 doesn't suit them, but in the United Nations when they're trying to get

20 the other countries to invade Iraq and when it does suit them, they're

21 willing to disclose intercepted conversations, even as fresh as one week

22 old.

23 JUDGE ROBINSON: Mr. Robinson, just go back to the passage that

24 you've cited from Blaskic. I don't put the interpretation on it that you

25 have. I see it as saying nothing more than that state does not have a

1 blanket right to refuse to disclose information on the basis of national

2 security concerns. And Blaskic was before Rule 54 bis. Now, Rule 54 bis

3 sets out a regime to deal with that.

4 MR. ROBINSON: Thank you, Mr. President. I actually agree with

5 you, and I am about to discuss, in my opinion, at least the fact that

6 Rule 54 bis decided that the national security interests of the states

7 should be dealt with by the modalities that it set forth in Rule 54 bis

8 (F) and 54 bis (G), so it doesn't give the state the right to withhold

9 national security information. What it does it sets up a mechanism for

10 protection of that information from disclosure. But it's the Trial

11 Chamber or the Judge who decides whether that information is disclosed or

12 not disclosed on a national security basis, not the country itself. The

13 obligation to provide the documents still exists and cannot be avoided by

14 raising national security concerns.

15 But when such concerns are raised, there are modalities to deal

16 with that. They can produce the documents, they can do it in camera.

17 They can be done ex parte. They can do it with one Judge. They can have

18 their own translations. There doesn't have to be a transcript. They can

19 provide them redacted. They can have a signed affidavit in lieu of some

20 documents and the documents can be returned to them, those decided by the

21 Trial Chamber not to be disclosed. Those are all the protections set

22 forth in Rules 54 bis (F) and (G). But that's how we deal with at this

23 Tribunal national security, not by allowing the states to escape their

24 obligations to provide them, but to protect them in the confines of this

25 Tribunal so they can be properly disclosed with the balance of the rights

1 of the accused and the rights of the states.

2 The Government of Canada has said that the process of disclosing

3 and examining sensitive information set forth in Rules 54 bis (F) and (G)

4 should not be engaged in where the state has made a compelling case of

5 prejudice regarding national security interests, has a history of

6 cooperation with the Tribunal, and is a bystander. I suggest to you

7 that's not the law. First of all, they're not bystander. They do have a

8 history of cooperation with the Tribunal. It doesn't give them any

9 special treatment in the question of whether or not they have to provide

10 these records. Certainly, the bona fides of their representations in

11 this Tribunal ought to be given great weight, but it doesn't excuse them

12 from their obligations under Rule 54 bis or Article 29.

13 The Netherlands says that the disclosure of intercepted

14 conversations and human intelligence could jeopardise the methods used to

15 generate such information. As you've seen on the video, it's common

16 knowledge that conversations are intercepted by governments, especially

17 in times of war.

18 In conclusion, I would like to go back to the remarks that

19 Madeleine Albright made --

20 JUDGE BONOMY: Before you do that. You've skipped over relevance

21 very quickly for reasons you've explained, but that particular part of

22 the rule implies that not only the material sought should be relevant but

23 necessary for a fair determination of that issue. So even assuming you are

24 right about the Appeals Chamber's intention in making the statement

25 which you drew on in Blaskic, there still is a question of necessity to

1 be addressed and your calls for material in this case are extremely wide.

2 And indeed, if you take the first one as an example, it doesn't even

3 indicate that it relates to issues in the trial at all. It's not

4 confined to issues in the trial. It would cover any conversation of any

5 type that General Ojdanic had during the period in question.

6 MR. ROBINSON: I understand that, Your Honour. And there is a

7 reason for that and perhaps this would be a good opportunity for me to

8 give you those reasons. It's our belief that this disclosure is

9 necessary for a fair determination of this case, because it will show

10 that General Ojdanic did not participate in any of the crimes charged in

11 the indictment.

12 JUDGE BONOMY: Sorry. I mean, I do follow that argument, but

13 what I don't follow at the moment is why you don't even give us a few

14 examples of circumstances which he's bound to be able to remember during

15 that period where you can show to us something to confirm it might be

16 necessary in the context of a case where perhaps there's going to be a

17 circumstantial case set against him and you're anxious to secure

18 circumstances to back up his potential evidence in the trial itself. But

19 none of that is presented in your application.

20 MR. ROBINSON: Your Honour, I can give you some examples and I

21 don't think necessarily I want to be limited to these examples, but I'll

22 give you one: For example, when General Ojdanic learned of the incident

23 in Racak in January of 1999, he had communications the subordinates and

24 asked them to investigate and find out what went on in Racak and what was

25 the involvement of the Yugoslavian army in that incident. And later, he

1 had communications from subordinates in which he was told that the army

2 was not involved. That's one example of the types of communications that

3 would be relevant to the trial.

4 I think that the reason we haven't limited our request to

5 specific incidents is because there's other things that are impossible to

6 predict that may very well relate to General Ojdanic's state of mind.

7 Many other conversations he could have with subordinates, with President

8 Milosevic, with other people can reflect upon his state of mind without

9 necessarily being even identifiable as discussing any particular incident

10 that's in the indictment.

11 JUDGE BONOMY: But, Mr. Robinson, it's not necessary for an

12 application of this nature to cover every possible eventuality. There

13 are certain obligations upon the applicant. It may be that that could

14 result in the recovery of certain material because you've identified it

15 sufficiently well to show that it's -- you've specified what it is and

16 that it's necessary for the Defence. That may lead to a further

17 application, for example. But what you're asking for here requires,

18 speaking for myself, very strong justification in view of the width of

19 the calls themselves.

20 MR. ROBINSON: I understand that, Your Honour. I think that as a

21 practical matter, even from the declaration that you see from our expert,

22 these records are stored and are searchable in electronic form, and the

23 most common way to search for data in an electronic form is by a word

24 search. And by searching for the word "Ojdanic" you at least can get a

25 body of data that is then relevant, at least potentially relevant. Then

1 you can limit that data further; the period of time of the indictment,

2 limit that further. Now you have a smaller body of data.

3 Now the question is: Who should be looking at this material to

4 determine whether or not it deals with the state of mind of General

5 Ojdanic or deals with his role in the command structure of Yugoslavia,

6 and all these other things. We want at least the Trial Chamber to be

7 making that -- looking at those records to make those determinations, not

8 someone sitting in a room in some nation's capital who doesn't know

9 anything about the case. Because we're likely to have a body of

10 materials which may not be evident to the average person as being

11 relevant or even exculpatory but in fact could be highly useful to your

12 determination of the facts in this case. So we haven't been able to

13 think of a way to narrow our request any further and yet get the kind of

14 material that we're looking for.

15 Secondly, the negative evidence from receiving documents

16 responsive to this request is also very important for the Trial Chamber

17 to consider. To show that although contemporaneous recordings of a

18 specified number of General Ojdanic's conversations were obtained and

19 reviewed, that General Ojdanic was never heard to say anything that would

20 indicate that he had knowledge of, participated in, planned or condoned

21 any of the crimes charged in the indictment, that is also a powerful

22 piece of evidence for the Trial Chamber to consider. So by having the

23 country's collect -- pool the relevant information and have it submitted

24 to the Trial Chamber or to the Defence, we would then be in a position to

25 make that representation and for you to have confidence in it. It's an

1 important point in your determination of whether or not General Ojdanic

2 committed the offences for which he's charged.

3 So while ideally to narrow this request as much as possible is

4 the goal, you can't narrow it to the point where things escape that would

5 be relevant and useful. We've done our best to try to balance this

6 dilemma of trying not create too much work for the states but create a

7 pool of useful information for the Trial Chamber and for General Ojdanic.

8 JUDGE BONOMY: Thank you.

9 MR. ROBINSON: Thank you, Your Honour. And I would just like to

10 conclude now with remarks that were made by Ambassador Madeleine Albright

11 at the adoption of the Resolution creating this Tribunal. She said:

12 "This will be no victor's Tribunal. The only victor that will prevail in

13 this endeavour is the truth."

14 I would ask the Trial Chamber and all the parties involved in

15 these hearings to spend the next few days, to strive to meet that goal to

16 provide information that will allow you to determine the truth in this

17 case.

18 JUDGE ROBINSON: Mr. Robinson, doesn't your inability to narrow

19 the application any further mean that you're essentially fishing.

20 MR. ROBINSON: Well, Mr. President, I think that you can say that

21 any application is fishing, including applications that you've approved

22 in the Milosevic case. For example, to ask for all the minutes of the

23 meetings of the Supreme Defence Council of Yugoslavia; one could say that

24 that is fishing. But nevertheless the request is narrow enough to think

25 that you're fishing in a relatively limited pond and there's a lot of

1 fish underneath. That's the goal. I think any application can be said

2 to be fishing, but the goal is to narrow your pond and to have as many

3 fish as possible in that pond. I think we have done that and that's why

4 I think the application should be granted. Thank you.

5 JUDGE ROBINSON: Thank you.

6 We are scheduled to take a break -- in fact, should have taken a

7 break at 4.o’clock. We'll now break for 20 minutes.

8 --- Recess taken at 4.15 p.m.

9 --- On resuming at 4.44 p.m.

10 JUDGE ROBINSON: We'll now hear submissions on behalf of Canada

11 from Ms. Swords.

12 MS. SWORDS: Thank you, Mr. President. Members of the Tribunal,

13 it's an honour to appear before you today on behalf of the Government of

14 Canada. Canada welcomes this opportunity to appear before the Tribunal,

15 as we are greatly concerned with the precedent-setting implications of

16 the order sought by the applicant. Our submissions today focus primarily

17 on how this application fails to meet the requirements of Rule 54 bis,

18 and thereby undermines the efficient and fair process that is the purpose

19 of that rule.

20 These points were covered in some detail in our written

21 submission of February 27th, 2003, which we continued to rely on. Today

22 we will briefly highlight some aspects of that submission, in light of

23 the applicant's further submission on relevance filed in June 2003, and

24 his statement here today. We will submit that the application should be

25 dismissed. We will also, as a final and practical matter, underline that

1 the very broad nature of the applicant's request makes it extremely

2 difficult for the parties to engage meaningfully and in good faith in the

3 process of voluntary cooperation that is envisaged by Rule 54 bis.

4 I turn first to our most fundamental concern with the

5 application: that it is plainly inconsistent with the overall purpose

6 and scheme of Rule 54 bis. Nothing in the applicant's further submission

7 on relevance, which was filed in June 2003, responded to this concern.

8 As a result, our objections to the application as identified in our

9 written submission remain unanswered. As pointed out in our written

10 submission, the Tribunal has held in the Blaskic subpoena decision that

11 the Tribunal's powers of compulsion must be applied with restraint and

12 circumspection vis-a-vis states who are, after all, not direct parties to

13 prosecutions before the Tribunal. That is at paragraph 31 of the

14 decision.

15 As a preliminary observation, therefore, Canada respectfully

16 submits that the Tribunal must continue to be wary of attempts to misuse

17 the potent provisions of Rule 54 bis. Our concern over noncompliance

18 with Rule 54 bis in this case stems from the fact that virtually none of

19 the rule's requirements are met by the defendant's application. In

20 particular, the application has two main problems. It is a classic

21 fishing expedition and it seeks irrelevant and unnecessary information.

22 In addition, it needlessly raises national security concerns. Let me

23 touch very briefly upon these problematic features of the application.

24 Turning first to the fishing expedition argument. The applicant

25 establishes no basis for believing that Canada has particular information

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1 that would be relevant and necessary to his defence, as he must according

2 to Rule 54 bis and the related jurisprudence of this Tribunal. As Judge

3 Hunt said in the Appeals Chamber decision in Delalic - it's at paragraph

4 4 of the decision and we cite it in our submission at paragraph 8, and I

5 quote: "A party is not entitled to have an order made to produce

6 material so that he may have access to it simply because he says that the

7 material is irrelevant [sic] to an issue in the trial or appeal. He is

8 not entitled to conduct a fishing expedition in the sense that he wishes

9 to inspect the material in order to discover whether he has any case at

10 all to make. An order to produce is not the same as obtaining discovery

11 against a party."

12 The applicant should be able to identify the particular

13 information that he believes to be crucial to his defence and to explain

14 how it is crucial. Unlike the Prosecutor, states are not subject to

15 disclosure obligations. So to expect the state to respond to what

16 amounts to a sweeping request for disclosure rather than for a request

17 for production of identified information is unreasonable, excessive, and

18 falls outside the scope of Rule 54 bis. In other words, the applicant is

19 engaged in a classic fishing expedition: asking for extremely broad

20 classes of information without having first established any basis for his

21 belief that Canada has anything of relevance.

22 And the applicant's further submission of June 2003 does nothing

23 to narrow the scope of his request or explain its basis. The applicant

24 must narrow his request to that which is relevant and necessary. If he

25 is unable to do so, one may infer that in fact he does not know where the

1 relevant information exists, and thus that his request is indeed a

2 speculative and massive fishing expedition, exactly what the Rules and

3 jurisprudence are designed to preclude.

4 As for the requirements of relevance a necessity, the applicant

5 has not shown the relevance of most of the information he seeks. His

6 request is extremely broad. For example, as presently formulated, the

7 Defence application seeks, among other things, all communications during

8 a six-month period to which General Ojdanic was a party. This would

9 capture virtually anything, including, for example, telephone calls in

10 which the applicant made arrangements for social arrangements, as Judge

11 Bonomy has eluded to. Obviously not everything can be relevant to his

12 defence. So the application is clearly not tailored to capture only

13 relevant and necessary documents. Again, the application falls outside

14 the scope of Rule 54 bis.

15 The applicant submitted today that the relevance of requested

16 information is none of their business, referring to the states here

17 today. The support for that proposition is a Court decision at paragraph

18 40, but that decision predates Rule 54 bis. Rule 54 bis expressly in

19 paragraph (A) makes the request of information from states a central

20 issue. And I would recall that Rule 54 bis is specifically meant to

21 address applications for production directed at states. It is therefore

22 obvious that states are entitled to address issues of relevance in

23 responding to applications for production orders, particularly those that

24 are so extensive as the one before us today.

25 Now, in his supplementary submission of June 2003, the applicant

1 tries to justify his extremely broad request by explaining that he wants

2 to prove a negative. For example, at page 4, paragraph 9 of his further

3 submission, the applicant submits that intercepts of his communications

4 would allow him to show that he had no culpable knowledge of events in

5 Kosovo, and I quote: "By showing in the aggregate that despite being

6 intercepted on X number of calls during the very time period that the

7 crimes were alleged to have taken place, he was never heard to order,

8 plan instigate, aid and abet, condone or fail to prevent or punish a war

9 crime."

10 And again at page 5, paragraph 13 of his further submission the

11 applicant says that disclosure of his contemporaneous statements will

12 provide evidence that: "In the aggregate with the interception of X

13 number of calls concerning General Ojdanic, there was no evidence upon

14 which it could be concluded that he participated in, had knowledge of,

15 condoned, or failed to punish a war crime."

16 In other words, the applicant is simply not interested in any

17 exculpatory evidence states may have; rather, he wants to rely on what

18 states do not have to try to establish his innocence by negative

19 inference. There are at least two problems with this. First, such a an

20 approach would require numerous states to offer up enormous amounts of

21 information so the applicant can sift through it all in the hopes of

22 finding nothing relevant. This is not what Rule 54 bis provides for.

23 The Tribunal held in the Blaskic decision at paragraph 32 that an

24 applicant must: "Identify specific documents and not broad categories."

25 And again: "A party cannot request hundreds of documents."

1 The further problem with this approach is that it is absolutely

2 unnecessary. The proposed approach confuses the burden of proof in a

3 criminal trial. The Defence need not have access to large portions of

4 the archival holdings of now 15 states in order to show that they hold

5 nothing incriminating, and thus that he must be presumed innocent.

6 Rather, it's for the Prosecutor to introduce positive evidence of his

7 guilt. Failure by the Prosecutor to produce the necessary incriminating

8 evidence permits - indeed compels - the drawing of the relevance

9 inference as to innocence. It is neither necessary nor relevant for the

10 accused to raise a presumption of innocence by claiming that he has been

11 unable to find anything incriminating.

12 Clearly, the order proposed by the applicant falls outside the

13 scope of Rule 54 bis. To use the words of Rule 54 bis (B) itself, the

14 application should be rejected by the Trial Chamber because the:

15 "Documents or information are not relevant to any matter in issue in the

16 proceedings before them or are not necessary for a fair determination of

17 any such matter."

18 Mr. President and members of the Tribunal, in any event Canada

19 objects to the application on the grounds that as currently worded it

20 would prejudice Canada's national security interests. Canada's position

21 on national security is set out in some detail in our written submission,

22 and I will not repeat it here. What I do want to underline is that the

23 applicant's request is specifically framed in such a way so as to target

24 the most sensitive forms or sources of information, such as communication

25 intercepts.

1 In seeking sensitive information from a state, a party should

2 resort to means that are the least prejudicial to the national security

3 interests of the state. So the applicant should be focusing on relevant

4 informational content, rather than its sources or means of collection.

5 And he has done just the opposite here.

6 As a final and more practical matter, this application is not a

7 genuine measure of last resort, which it must be before the order sought

8 would be justified. Canada respects its obligations under the Statute

9 and Rules to act in good faith in responding to requests for assistance.

10 But a party seeking assistance must also act in accordance with the

11 Statute and Rules in good faith. This means, in part, that a compulsory

12 order should only be sought when all voluntary avenues of cooperation

13 have been exhausted. This is inherent in Rule 54 bis and essential to

14 the fair and efficient functioning of this Tribunal. But pursuing

15 voluntary avenues of cooperation requires more than an unfocused and

16 speculated request followed by an application for compulsory measures.

17 What is required is that a requesting state exhaust all avenues of

18 cooperation. That is, a requesting party must respect the parameters and

19 spirit of the Statute and the Rules by making appropriate, reasonable,

20 and relevant requests. Failing to do so undermines any real possibility

21 of voluntary cooperation.

22 Indeed, despite the very general nature of this request, we began

23 doing some preliminary searching and we soon realised that without some

24 specificity we could not properly assess what information might be

25 relevant and necessary for the Defence. Nor should we be required to do

1 so. It is the applicant who must narrow the field to what is actually

2 relevant and necessary to his defence. He is the one who must make

3 voluntary cooperation possible by making a reasonable request. He must,

4 in other words, make good-faith efforts to give voluntary cooperation a

5 true chance.

6 In that spirit, we remain prepared to work with counsel for the

7 applicant and to discuss with them reasonable requests for specific and

8 relevant information that do not jeopardise our national security

9 interests. In our written submission we've already explained that, for

10 example, we can neither confirm nor deny the existence of intercepted

11 communications. Similarly, Canada cannot disclose information provided

12 to it by other countries. So it would be far more productive for the

13 applicant to identify the specific information sought rather than its

14 form or source. But until the applicant formulates a request that would

15 allow states to cooperate voluntarily, an application for a compulsory

16 order is unjustifiable.

17 Mr. President, members of the Tribunal, before concluding I would

18 like to correct an assertion made by the applicant in his statement -- by

19 the applicant's counsel. The applicant asserted that "Canada states it

20 is a bystander and therefore not subject to the terms of Article 29."

21 This is not the case. What Canada has said on Article 29 is that we

22 recognise and support the power of the Tribunal to issue orders to states

23 for the production of evidence. And that's in paragraph 3 of our written

24 submission, citing Article 29. The applicant has taken Canada's

25 statement that it is a bystander simply out of context.

1 Mr. President, members of the Tribunal, this concludes Canada's

2 oral argument on the application. For all the reasons set out in our

3 written submission as well as those outlined today, the Government of

4 Canada respectfully requests that this application be dismissed.

5 JUDGE ROBINSON: Can you just tell me --

6 MS. SWORDS: Before closing, if I might make one more comment:

7 We would like to reiterate our commitment to supporting the work of the

8 Tribunal and to provide appropriate assistance to the parties of the

9 Tribunal in the pursuit of international justice. Thank you.

10 JUDGE ROBINSON: I thank you very much, Ms. Swords. I was going

11 to ask you what are your submissions on the concept of a bystander state.

12 MS. SWORDS: We have made some comments in our oral submission.

13 It's -- sorry, in our written submission, Mr. President. Essentially

14 what we're pointing out is that in the Blaskic decision, when the

15 reference is made to "bystander," it's to states that are not part of the

16 former Republic of Yugoslavia or the Prosecutor or the defendant are in

17 effect bystanders. So the only states that would not be bystanders are

18 those who are part of the former Republic of Yugoslavia.

19 And the point we are making here is that bystanders don't have a

20 direct interest in the specifics of a particular trial, a particular

21 criminal matter. We are watching but we are not the prosecutor and we

22 are not the defendant. Therefore, concerns we may wish to raise with

23 respect to national security are not to be taken lightly. That was the

24 point we are making and it is in paragraph 24 and 25 of our written

25 submission.

1 JUDGE BONOMY: I have two questions for you, Ms. Swords. I'll

2 take them separately.

3 First of all, do you have any authority to cite for the

4 proposition that Canada can't produce material given to you by other

5 countries?

6 MS. SWORDS: I believe that in this case, when there are 15

7 countries who are being asked for information, the authority would be the

8 question of necessity. There is no necessity to be asking for

9 information from -- that may be held by a country with respect -- that is

10 originated by another country when there are so many before the Court.

11 So there really is no necessity, Your Honour, in this case.

12 JUDGE BONOMY: And the second question -- this is one you may or

13 may not be in a position to answer. It may be my naivety, but I am somewhat

14 surprised that NATO are not represented in this hearing and a motion has

15 been made by the Defence that the very absence amounts to an indication

16 of either willingness to comply or waiver I think was the submission,

17 waiver of the right to oppose the application. Do you have any comments

18 to make on that submission that Mr. Robinson made.

19 MS. SWORDS: No, Your Honour, I do not. Maybe that is something

20 my colleagues can address tomorrow.

21 JUDGE BONOMY: Thank you.

22 JUDGE ROBINSON: Thank you very much, Ms. Swords.

23 We'll next hear from the representative of the Netherlands,

24 that's Mr. Lammers. We'll break for five minutes to allow for an

25 exchange in the seating.

1 --- Break taken at 5.07 p.m.

2 --- On resuming at 5.12 p.m.

3 JUDGE ROBINSON: As I said before, we'll now hear submissions now

4 from Mr. Lammers on behalf of the Netherlands.

5 MR. LAMMERS: Mr. President, members of the Chamber, in

6 accordance with paragraph 1 of the Scheduling Order issued by the Trial

7 Chamber on the 22nd September of the year 2004 and Rule 54 bis of the

8 Rules of Procedure and Evidence, the Netherlands would like to voice

9 certain objections to General Ojdanic for the production of information.

10 General Ojdanic's application -- in General Ojdanic's application

11 the Trial Chamber is requested to order NATO and certain states including

12 the Netherlands to produce three categories of information. First, all

13 recordings, summaries, notes, or text of any intercepted communications,

14 electronic, oral, or written during the period of 1 January through 20

15 June 1999, to which General Dragoljub Ojdanic was a party.

16 Second, all recordings, summaries, notes or text of any

17 intercepted communications, electronic, oral, or written during that same

18 period originating from the Federal Republic of Yugoslavia and related to

19 Kosovo in which Mr. Dragoljub Ojdanic was mentioned or referred to in the

20 communication.

21 And third, all correspondence, memoranda, reports, recordings or

22 summaries of any statements made by General Dragoljub Ojdanic during that

23 same period.

24 The Netherlands is fully aware of its obligations under Article

25 29 of the Tribunal's Statute and Security Council Resolution 827 to

1 comply with any request for assistance or order issued by the Tribunal

2 concerning, inter alia, the production of evidence. Further, the

3 Netherlands has been and remains a firm supporter of the Tribunal and

4 seeks to assist the Tribunal to the greatest extent possible in

5 fulfilling its mandate.

6 Nevertheless, the Netherlands utilising the possible provided for

7 in paragraph 1 of the Scheduling Order to object to the order requested

8 by the applicant. The Netherlands's objections are based on the

9 necessity and relevance on the requested information and on related

10 national security concerns. Should, however, despite its objections, the

11 Trial Chamber decides to grant an order, the Netherlands respectfully

12 submits that it should be reformulated to accommodate these considerable

13 and legitimate objections and that the requested states should be

14 consulted in shaping that order.

15 Mr. President, members of the Chamber, our principal submission

16 is that the Trial Chamber should reject the application. According to

17 Rule 54 bis paragraph (B) 1, the Trial Chamber can reject the application

18 if it determines that: "The documents or information sought are not

19 relevant to any matter at issue in the proceedings before it or are not

20 necessary for a fair determination of any such matter."

21 The Netherlands contends that the application should be rejected

22 on both these grounds. Further, even if the application is deemed to be

23 sufficient to warrant the production of information in general, it does

24 not warrant the overriding of the Netherlands legitimate security

25 concerns.

1 Mr. President, members of the Chamber, the Netherlands is of the

2 opinion that the application fails to establish that the information

3 requested is necessary for a fair determination of any matter at issue in

4 this case, while the Tribunal jurisprudence exists to support the

5 granting of a request for categories of documents unduly broad categories

6 such as those at issue in this case are explicitly prohibited. I refer

7 here to the decision of the Appeals Chamber in the Prosecutor versus

8 Dario Kordic and Mario Cerkez.

9 The categories of information requested are impermissibly brought

10 of source material, subject matter, time frame, and place. In fact, the

11 extreme breadth of the request, together with failure of the application

12 to refer to any specific information, indicates that the applicant seeks

13 to engage in a so-called fishing expedition. The applicant is not even

14 certain that such information exists; rather, he seeks to use the power

15 of the Tribunal to ascertain whether this is in fact the case. Such mere

16 speculation is insufficient to justify an order by the Tribunal for the

17 production of information.

18 In addition to its impermissible breadth and the failure of the

19 applicant to establish with any likelihood that such information even

20 exists, the application also fails to satisfy the necessity requirement,

21 as a result of the considerable burden that such an order would place on

22 the requested states. According to the Appeals Chamber, considering

23 whether to grant a request: "Entails the striking of a balance on the

24 need on the one hand of the Tribunal to have the assistance of the states

25 in the collection of evidence for the purpose of prosecuting persons

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1 responsible for serious violations of international humanitarian law and

2 the need on the other hand to ensure that the obligation upon states to

3 assist the Tribunal in the evidence-collecting process is not unfairly

4 burdensome."

5 Further, in the Blaskic case the Appeals Chamber stated that: "A

6 party cannot request hundreds of documents, particularly when it is

7 evident that the identification, location, and scrutiny of such documents

8 where the relevant national authorities would be overly taxing and not

9 strictly justified by the exigencies of the trial." This is precisely

10 the situation in this case, Mr. President.

11 In this case, given the unparalleled breadth of the request and

12 the large number of states to which it is directed, the burden imposed on

13 the states is considerable. This burden is additionally compounded due

14 to the sensitive nature of certain of the information sought. Access to

15 intelligence information, intercepts in particular, is by necessity

16 extremely limited and thus there are few individuals that can be

17 entrusted with responding to these requests. The imposition manifestly

18 outweighs the limited necessity, if any, established by the application.

19 Moreover, should the requested order be granted, one could expect

20 other defendants to follow suit in the hope that national governments

21 will be ordered to sift through their sensitive intelligence information

22 for any indication of information that might be of use for their case.

23 Such a precedent would magnify the undue burden placed on the states.

24 This in turn would limit their ability to cooperate with the Tribunal

25 requests.

1 THE INTERPRETER: The speaker is kindly requested to slow down

2 for interpretation.

3 JUDGE ROBINSON: Mr. Lammers.

4 MR. LAMMERS: Yes.

5 JUDGE ROBINSON: You are being asked by the interpreters to speak

6 more slowly.

7 MR. LAMMERS: Slowly? Okay.

8 Such an undue burden is particularly unjustified when it is

9 requested of a state that can be characterised as a concerned bystander.

10 The Appeals Chamber in the Blaskic case ruled that in considering the

11 necessity of an order for production, a distinction between states that

12 are concerned bystanders and states that are directly involved in the

13 conflict is relevant. In this case the Netherlands can be qualified as a

14 concerned bystander to the crimes alleged. I repeat, to the crimes

15 alleged. And thus, the considerable burden requested by the order is all

16 the more unjustified.

17 Finally, the applicant has not established that the requested

18 order is necessary in that the requested information cannot be obtained

19 elsewhere, particularly concerning communications to which the applicant

20 was a party or statements made by the applicant resort to an order to a

21 state seems unnecessary.

22 The applicant is well-suited to know which statements or

23 communications he has made, for various less onerous means exist for

24 bringing this information to the attention of the Trial Chamber, such as

25 calling the parties to the conversations to give evidence. As was stated

1 by the Appeals Chamber in the Blaskic case, the Tribunal should reserve

2 its mandatory compliance powers, I quote: "For cases in which they are

3 really necessary."

4 The Netherlands respectfully argues that due to the unparalleled

5 breadth of the request, its fishing-expedition character, a considerable

6 burden placed on the requested states, many of which can be characterised

7 by standards to the crimes alleged, as well as existence of various

8 less-onerous means for acquiring the information, this is not such a

9 case.

10 Mr. President, members of the Chamber, the requested information

11 is not relevant to any matter at issue. As discussed above, the

12 requested order is very broad in scope and the applicant seeks a wide

13 array of information. This information is of questionable relevance to

14 the applicant's case. The applicant argues that the information

15 requested is directly relevant to show whether he participated in any of

16 the crimes alleged, whether war crimes were reported to him or brought to

17 his attention, and to show his state of mind concerning the events

18 occurring in Kosovo and the prevention and punishment of war crimes.

19 However, in formulating his request, he does not limit it to

20 these issues; rather, he requests copies of all communications during a

21 six-month period to which he was a party or in which he was mentioned or

22 referred to, as well as statements made by him during this period. There

23 is no requirement that any statements have any bearing in the applicant's

24 participation in, knowledge of, or state of mind concerning the crimes

25 alleged.

1 In the applicant's further submission in support of application

2 for orders to NATO and states for production of information, the

3 applicant attempts to remedy this deficiency. He argues that from the

4 information requested it will be possible to show, inter alia, that he

5 did not participate in or have knowledge of the alleged crimes; in other

6 words, that a lack of reference to his participation in or knowledge of

7 the alleged crimes demonstrates that he did not participate in or know

8 about the crimes. However, the extreme breadth of the request and the

9 questionability of proving a negative through this sort of information

10 casts doubt on the relevance of the requested material.

11 As a result, the applicant has failed, in our view, to establish

12 that the requested information is relevant to any matter at issue in the

13 case and his request for an order should therefore be rejected.

14 Disclosure of the requested information raises, in our view,

15 legitimate national security concerns that should be respected. The

16 Tribunal jurisprudence establishes that states are permitted to object to

17 requests for production of information based on national security

18 concerns. This possibility is qualified in Rule 54 bis, paragraph (F).

19 The Netherlands hereby makes such an objection.

20 The Netherlands is aware that a blanket assertion that national

21 security is at stake is insufficient. Rather, it must in Rule 54 bis

22 (F): "identify to the extent possible the basis upon which its national

23 security interests will be prejudiced."

24 In this regard the Netherlands wishes to point out in particular

25 with respect to the first two categories of information sought, the

1 sensitive nature of information relating to the existence of intercepted

2 communications. The very disclosure of such information would cause

3 serious prejudice to national security interests by not only jeopardising

4 the methods and sources utilised to generate that specific information,

5 but also the requested states' ability to gather such information in the

6 future. The arguments are also applicable to the third category of the

7 requested information, to the extent that it includes human intelligence.

8 While provisions can be made to protect the information, risks

9 are nevertheless inherent. The Tribunal should ask states to undergo

10 such inherent risks if it is convinced the applicant has met the

11 heightened burden accompanying this risk. This is all the more so when

12 the Tribunal is addressing disclosure to a state with a history of bona

13 fide cooperation.

14 Mr. President, members of the Chamber, for the reasons stated

15 above, the Trial Chamber should not issue the requested order. If,

16 however, the Trial Chamber decides not to reject the request outright,

17 then the Netherlands respectfully submits that the Trial Chamber should

18 narrow the scope of any order granted.

19 As discussed above, the requested order is impermissibly broad.

20 Any order granted should significantly reduce the breadth of the request,

21 at a minimum to include only information that has a bearing on the

22 applicant's participation in, knowledge of, or state of mind concerning

23 the crimes alleged. Also excluded should be information which the

24 applicant could acquire from other sources and information, disclosure of

25 which would jeopardise the requested state's national security. In this

1 regard, any order would need to provide for appropriate arrangements to

2 protect requested state's national security interests, including but not

3 limited to the possibility to submit the information in redacted form; I

4 refer to Rule 54 bis (F) (ii) and (G) and (I), and the possibility to

5 offer protection similar to that supplied by the Prosecutor on a

6 confidential basis under Rule 70.

7 It is respectfully argued that should the Chamber decide to issue

8 such an order it consult requested states concerning modalities to

9 alleviate their concerns.

10 Mr. President, members of the Chamber, in conclusion, for the

11 reasons just given, the Netherlands respectfully submits that the order

12 should not be granted. Specifically, the information sought is not

13 necessary or demonstrably relevant and the Netherlands, a bystander state

14 to the crimes alleged with a history of bona fide cooperation, has a

15 legitimate national security concerns with the requested order. In the

16 alternative, should the Trial Chamber should decide to issue an order, it

17 should narrow it to only include information relevant to the applicant's

18 participation in, knowledge of or state of mind concerning the crimes.

19 Further, the applicant should be required to specify the

20 communications and statements of which he would like copies. Also

21 excluded should be information which the applicant could acquire from

22 other sources and the disclosure of which would jeopardise the requested

23 state's national security.

24 Finally, any such order would need to provide for appropriate

25 arrangements to protect the requested state's national security

1 interests, with regard to any information that was ordered to be

2 produced, including the possibility to offer protections similar to those

3 contained in Rule 70.

4 Mr. President, Members of the Chamber, thank you for your

5 attention.

6 JUDGE ROBINSON: Thank you, Mr. Lammers. I'd just like to raise

7 one question, and again I return to this concept of the concerned

8 bystander, as distinct from a state more directly affected, the states

9 located on the territory of the former Yugoslavia. It would not be

10 correct that there is any legal consequence to be drawn from this

11 distinction. The Appeals Chamber in Blaskic itself made it clear that

12 the distinction only has a practical consequence in that states of the

13 former Yugoslavia are more likely to be required to cooperate in the ways

14 envisaged in Article 29. I raise it because it's not clear to me from

15 the submissions that were made by Canada, and now by you, whether that is

16 clearly understood because I somehow have the impression that you seem to

17 be indicating that there is a different legal regime for a concerned

18 bystander, and that is not the case at all.

19 MR. LAMMERS: Mr. President, with your permission, the notion

20 that a bystander state as we understand is -- we were a belligerent party

21 in Kosovo, we don't deny that. And in that sense we were not a

22 bystanding state, so to say. What we mean by bystanding state here is we

23 were not active on the ground. We were not involved in things which

24 occurred on the ground. We were not a bystanding state in things that

25 happened on the ground and which are here -- the alleged crimes that are

1 here at issue at the moment. And in that sense we believe that we are --

2 not a bystanding state. Thank you very much. And we were not directly

3 concerned.

4 JUDGE ROBINSON: In other words, Mr. Lammers, even if you are a

5 bystanding state and you have relevant information and the other

6 requirements of Rule 54 bis are met, then you are required to produce it;

7 that's my understanding of Blaskic. The distinction only has a practical

8 consequence.

9 MR. LAMMERS: Mr. President, we will certainly look into the

10 possibility to see whether we have information which we will be able to

11 produce, but we say already now that being in the position of a

12 bystanding state, the chance may be not be great, that we will not be

13 able to provide the information that you are looking for.

14 JUDGE ROBINSON: I think you are now addressing the practicality

15 of it, yes. I will just ask other speakers to address that point.

16 JUDGE BONOMY: Can I say on a separate matter that so far I have

17 not been particularly assisted by the submissions in relation to national

18 security interests. It's universally known nowadays that communications

19 are intercepted. There are widespread public debates to the use of which

20 intercepted communications should be put. And if that's the only

21 argument parties have about the matter, there's little point in making

22 it. If, however, there's something more substantial to this point, then

23 I would be interested in hearing it.

24 MR. LAMMERS: With your permission, I have been informed that --

25 well, the system of recording the information, certainly at the time

1 which we have in view here, in 1999, for the Netherlands is complex -- is

2 a complex situation. And we don't dispose of the technologically

3 advanced systems of recording which other states may dispose of,

4 certainly not at the time which we have in mind at the moment.

5 Moreover, it's not only the question of finding information, it's

6 also the question of scrutinising the material. And as we have already

7 outlined in our earlier speech, there are only a few individuals at the

8 disposal of the Netherlands which are entrusted with responding to these

9 requests --

10 JUDGE BONOMY: I took that point, Mr. Lammers. I understood

11 that. But as Ms. Swords pointed out, it's not the method that matters

12 here, it's the product. And really, how that material is obtained will

13 not be the concern of any order that's made here. The order, if it's

14 made, will simply be related to the product of the exercise.

15 MR. LAMMERS: I understand that. Thank you.

16 JUDGE ROBINSON: Thank you, Mr. Lammers.

17 Next on the list is the United Kingdom. Professor Greenwood.

18 MR. GREENWOOD: I'm quite happy to start now.

19 JUDGE ROBINSON: Yes, please go ahead.

20 MR. GREENWOOD: Well, Mr. President, members of the Court, I have

21 the pleasure and privilege of appearing on behalf of the United Kingdom

22 before you today. The United Kingdom has always been very keen to

23 cooperate with the Tribunal and indeed has gone to the greatest possible

24 lengths to do, but we strongly oppose the submission that has been made

25 by counsel for the Defence in the present proceedings.

1 Mr. President, before I turn to the substance of my own

2 submissions, I wonder if I might respond briefly to the question that My

3 Lord Bonomy asked of Ms. Swords in the position of NATO. Now, obviously

4 I am not instructed here on behalf of NATO; I am instructed on behalf of

5 the United Kingdom, and I am sure that attempts will be made over the

6 course of the recess to contact counsel for NATO or to contact those who

7 are entitled to speak on behalf of her.

8 But I wonder if I might make this point: NATO has no methods of

9 its own for acquiring information. It has no intelligence of its own.

10 It has no communications interception facilities of its own. Any

11 information covered by the present request which might be in the

12 possession of NATO - and I stress, might be in the possession of

13 NATO - can therefore only have come from one of the member states.

14 The Defence has made applications against all of the member

15 states of NATO, although it has now withdrawn those requests in respect

16 of some of the members. So just as my learned friend, counsel for

17 Canada, made the point to the Court that where a state has information

18 which has been communicated to it from another state, the appropriate

19 course for the Defence is to seek that information from the source state.

20 That is the way -- that is the appropriate way to apply Rule 54 bis.

21 That same principle must hold good, we submit, in respect of NATO. It is

22 from the states that that information should be sought, if it is to be

23 sought at all. I merely put that forward today because I do not wish it

24 to be thought that by not being here on the present occasion, NATO is in

25 some way being disrespectful to the Tribunal or that somehow there has

1 been any waiver of the objections that are being taken.

2 JUDGE BONOMY: May I say, Professor Greenwood, I am not surprised

3 at all by the explanation you give and I have a fair deal of sympathy

4 with the submission you make about seeking material, first of all, from

5 the originating source. But is there any authority for the proposition

6 you make, that it should be sought from the originating source rather

7 than the secondary source?

8 MR. GREENWOOD: Well, My Lord, to the best of my knowledge there

9 is no direct authority in the Tribunal on this point, although we will

10 endeavour to research it overnight. But, My Lord, in my submission, it

11 does follow a matter of common sense and logic from the way Rule 54 bis

12 is structured, and it's particularly germane to the facts of this case.

13 This will touch on a point I want to deal with later in my

14 submissions, but what the Defence is seeking to do here is not to get

15 hold of a specific piece of information. There's no smoking gun, if one

16 can use that term, that they are chasing. What they are seeking to do is

17 to demonstrate a negative to the Tribunal. They are seeking to establish

18 from a variety of conversations, as I will endeavour to show, quite a

19 considerable variety that General Ojdanic did not have the mens rea for

20 the offences charged, did not have the necessary knowledge. Now, if that

21 is the purpose for which the information is sought, then two things

22 immediately become very important. The first is the methodology by which

23 the information is obtained, because that goes to the question of its

24 reliability. And that, of course, is information which is only likely to

25 reside with the state that is the source of the information.

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1 Secondly, if you are seeking to prove a negative, it really

2 doesn't help you very much to show that a particular issue was not

3 mentioned in the course of the five, ten, 15, 50 conversations of which

4 you have intercepts. You've got to show that those intercepts are

5 reasonably comprehensive, and there are unlikely to have been other

6 conversations in which the relevant matter might have been mentioned or

7 the incriminating sentences might have been spoken. So that question of

8 whether the intelligence material is comprehensive is likely something

9 that is able to be answered by the state that acquired that in the first

10 place.

11 JUDGE BONOMY: One answer to that would be to specify the

12 occasions which would then lead the Court here, perhaps, to see the

13 relevance of these and possibly the necessity of obtaining that material

14 from that source.

15 MR. GREENWOOD: Well, My Lord, that may be the case, but in my

16 respectful submission that entire dialogue is one that can be had and has

17 to be had, if it is going to be had at all, with the state that is the

18 supposed source of the intercepts. It cannot meet criteria of necessity

19 to go a secondary or tertiary party and ask them what someone else has

20 given them, when you can go to the original source of the information and

21 get the answer in an unadulterated form from that source. So the

22 best-evidence rule must be applicable here. You go to the state that is

23 most likely to be able to give you that information. And in the presence

24 case, that is precisely what the Defence has done. It has made

25 applications against all of the NATO member states. So there cannot be,

1 in those circumstances, any necessity for an order against NATO.

2 My lords, unless I can assist you further with that particular

3 point, let me move, if I may, to the main substance of my submissions.

4 Now, the United Kingdom made written submissions in response to the

5 Defence application some 20 months ago in February 2003. There have of

6 course been a number of developments since that time. There has been

7 Prosecution disclosure, we understand, under Rule 66 of the Rules of

8 Procedure and Evidence. There have been further submissions by Defence

9 counsel in June 2003. So to have a hearing at this stage is apposite.

10 It is necessary to revisit the arguments that were made in writing nearly

11 two years ago.

12 But we say that on closer inspection nothing has changed at all.

13 The Defence has done nothing during the nearly two years that it has had

14 to refine its request in any way and all the objections which the United

15 Kingdom has made in our written submissions, still apply today. I don't

16 propose to repeat them to the Tribunal; that would obviously be

17 unnecessary, but I want to make clear that the fact that I am not

18 repeating them does not in any way mean we are not departing from them.

19 What I wish to do is concentrate on the submissions the Defence

20 has made both in its brief June 2003 and orally this afternoon. Now, we

21 say that the first and perhaps in many ways the most important

22 consideration is this: The Defence has wholly failed to follow the

23 procedure laid down in Rule 54 bis for making an application of this

24 kind. Rule 54 bis was designed to give effect to the principles

25 initially set out by the Appeals Chamber in the Blaskic decision. One of

1 those principles was summarised by the Blaskic Chamber in these terms:

2 "In the final analysis, the Tribunal may discharge its functions

3 only if it can count on the bona fide assistance and cooperation of

4 sovereign states. It is therefore to be regarded as sound policy for the

5 Prosecutor as well as Defence counsel first to seek through cooperative

6 means the assistance of states and only if they decline to lend support,

7 then to request a Judge or Trial Chamber to have recourse to the

8 mandatory action provided for in Article 29 of the Statute."

9 And it's for that reason that Rule 54 bis requires the Defence to

10 show that it has taken reasonable steps to secure cooperation, that it

11 has really tried to exhaust the cooperative process before seeking to go

12 down the mandatory road. Now, the Defence says in its application to

13 this Tribunal that General Ojdanic has: "gone to great lengths in this

14 regard, great lengths."

15 Well, it is worth looking at what really happened and contrasting

16 it with that sentence. First of all, on the 17th of May, 2002, the

17 Defence wrote to the United Kingdom, and as we understand to other states

18 here, in terms which are similar to though not identical to the request.

19 That letter was forwarded on the 20th of June, 2002, by the Tribunal to

20 the Foreign and Commonwealth Office in London. And on the 26th of June,

21 the Foreign and Commonwealth office received that letter and acknowledged

22 its receipt. On the 26th of July, 2002, the United Kingdom replied in

23 these terms to the Defence. It's at page 7.101 of the record. "Your

24 letter sets out three very broad categories of material, copies of which

25 you request should be disclosed to you. In order to assist us in

1 considering your request, it would be helpful if you were able to specify

2 in as much further detail as possible the material to which your request

3 relates."

4 Now, Mr. President, that we say is very far from being a negative

5 response. It certainly is not declining to assist the Defence. The

6 Defence response is said to have been an e-mail which appears at 7.100 of

7 the record, which we are told was sent to the Foreign Office on the 5th

8 of September, 2002. But the first that the British government heard of

9 it was when the present application was made. We never received the

10 e-mail and, indeed, we wrote to the Defence in January of 2003 to say

11 that we had never received the e-mail referred to in their application.

12 But although it was not received, the e-mail is worth looking at

13 because it tells us a lot about what this present application is and how

14 the Defence has gone about its duty of cooperation under Rule 54 bis. If

15 I just quote the relevant passages of it to the Tribunal. This is an

16 e-mail from Mr. Peter Robinson to Mr. McDuff [phoen] of the Foreign and

17 Commonwealth Office who was the signatory of the letter of 26 July 2002:

18 "In 1999, leading up to and during the war in Kosovo --

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

20 you.

21 JUDGE ROBINSON: Professor, Greenwood, you're being asked to slow

22 down for the interpreters.

23 MR. GREENWOOD: I'm so sorry. It's because I'm reading. I'll

24 speak more slowly.

25 "In 1999, leading up to and during the war in Kosovo,

1 intelligence agencies of several governments intercepted communications

2 of persons within the military and civilian command structure of the

3 Federal Republic of Yugoslavia. We are requesting that your government

4 search its files and disclose to us those communications, one, in which

5 General Ojdanic was a participant; or two, in which General Ojdanic was

6 mentioned. This need only be for the six-month period from January to

7 June 1999. That seems very specific to me," Mr. Robinson says. "You can

8 contact any agency which participates in this kind of intelligence

9 gathering and ask them to look for these communications. Perhaps a word

10 search using the word 'Ojdanic' would be a good start.

11 "Our third request is for memoranda or other reports that relate

12 to statements by or about General Ojdanic. This is one step removed from

13 an intercepted communication. Here, we are seeking disclosure of what

14 people in your government reported General Ojdanic as saying or what

15 others said about him during this six-month period."

16 Then there's a reference to the military attache, Colonel

17 Crossland [phoen], in Belgrade.

18 "So we are asking you to canvass any agency of your government

19 involved in intelligence, military, or diplomatic affairs and look for

20 any reports, memoranda, et cetera," -- one wonders what the word et

21 cetera might cover, given what's already gone in -- "in which General

22 Ojdanic is mentioned during the limited period of the first six months of

23 1999. I hope this response is helpful to you and we look forward to your

24 cooperation."

25 Now, there is incidentally nothing in the record here to indicate

1 the date on which that e-mail was sent, which machine it was sent from,

2 what e-mail system was used to send it, or who was the e-mail addressee,

3 although the e-mail of Mr. McDuff is given on his letter of the 26th of

4 July, as is his telephone number.

5 Now after that, complete silence. There is not a word from the

6 Defence. They don't follow up to find out why they've had no response to

7 the e-mail. They don't telephone Mr. McDuff, they don't write, they

8 don't send another e-mail. Nothing happens at all. Even after the 13th

9 of January, 2003, when the Defence will have received a letter from the

10 British government saying that that e-mail had not been received, there

11 is still no follow-up. And in the nearly two years since then, not a

12 word. And in his submissions this afternoon, Mr. Robinson said that the

13 governments have made no effort to contact the Defence during the two

14 years since they were originally contacted.

15 Let me turn that around. What effort has the Defence made? The

16 burden is on the Defence to meet the requirements of Rule 54 bis. What

17 steps has the Defence taken? The answer is very simple: It hasn't taken

18 any. And it's particularly significant, because as we understand it

19 during that two-year period, although I'm not in a position to say

20 exactly when, Prosecution disclosure was made under Rule 66. Now, that

21 would have given the Defence quite a considerable idea of, first of all,

22 of what was the case it had to meet; secondly, what information the

23 Prosecution was going to deploy against it; and thirdly, what meetings,

24 exchanges of correspondence, telephone calls might be part of the

25 evidence in the Prosecution case. Now, the Defence had adverted to that

1 in the application they made.

2 If members of the Tribunal will look at page 7.122 of the record,

3 paragraph 10 of the application, footnote 9, they'll find this sentence:

4 "General Ojdanic envisages this as being the first request for

5 binding orders. The second request covering a wider range of materials

6 will be made once disclosure by the Prosecutor has been completed so that

7 General Ojdanic will be in a position to be as specific as possible with

8 respect to those materials."

9 Now, Mr. President, leaving aside the fact that it refers to an

10 even wider request rather than a more specific one, a matter I'll come

11 back to in a moment, there are two points that are clear from that

12 footnote. First of all, it recognises the significance of Prosecution

13 disclosure for the work of the Defence; yet not a word from the Defence

14 since Prosecution disclosure has occurred. And secondly, that footnote

15 surely indicates, if one needed any further evidence of it, that the

16 Defence has given up on any idea of cooperation with the states. There's

17 no suggestion here that after Prosecution disclosure the Defence is going

18 to make another -- write another letter and invite a cooperative response

19 from the states. No, it's envisioning going straight back to the

20 Tribunal for a second binding order. That, we say, is plainly not what

21 Rule 54 bis requires.

22 And as I say, it is worth recalling the fact that the burden is

23 on the Defence as the party making this application to show that it has

24 met all the requirements of the rules. The Blaskic case, albeit that it

25 was decided before Rule 54 bis was adopted, nevertheless makes quite

1 clear what in the spirit of this rule is required.

2 In the cooperative process, the party seeking evidence, be it the

3 Prosecutor or the Defence, is required to go the extra mile. Well, far

4 from going the extra mile and seeking cooperation, the Defence in the

5 present case seems to have been reluctant to even put its foot on the

6 road. It has taken no active steps in cooperation at all, other than a

7 rather bland suggestion that perhaps a word search using the word

8 "Ojdanic" would be a good place to start. As I will endeavour to show it

9 wouldn't have been a particularly useful place to start at all.

10 Now, Mr. President, it's common ground between the Defence and

11 ourselves that this is not a case in which the Tribunal should be making

12 new law, it's a case for applying existing principles and applying them

13 fairly. The jurisprudence of the Tribunal and this language of Rule 54

14 bis makes clear what those main principles are. First of all, there is

15 no scope for a fishing expedition. What the Defence must do is request

16 specific information or documents, detailed as far as possible and

17 limited in number -- a specific requirement in the Appeals Chamber's

18 decision in Blaskic. But if one looks at this request, it's about as far

19 from those principles as it would be possible to imagine: "All

20 intercepts of any communication to which General Ojdanic was a party

21 during a period of six months." And although Mr. Robinson concentrated

22 on the word "intercepts," his request is actually broader than that. He

23 doesn't just want primary intercepts, he wants all notes, summaries,

24 records of such intercepts as well; assessments made on the basis of

25 those intercepts. What would be involved is potentially - indeed, on the

1 face of the request, because the request makes great play of the fact

2 that there was a great deal of intelligence gathering going on - is

3 potentially thousands and thousands of documents and pieces of

4 information.

5 And with respect to my learned friend Mr. Robinson, I fear he

6 rather misquoted the Kordic decision to Your Lordships this afternoon

7 because he suggested that that decision expressly envisaged hundreds of

8 documents being revealed. So far as I can see, it does the exact

9 opposite. At paragraph 34, subparagraph 3 of the Kordic decision it

10 summarises the existing law and in particular the Blaskic ruling, that a

11 binding order for the production of documents must: "Not be unduly

12 onerous. As already referred to above, a party cannot request hundreds

13 of documents, particularly when it is evident that the identification,

14 location and scrutiny of such documents by the relevant national

15 authorities would be overly taxing and not strictly justified by the

16 exigencies of the trial."

17 Mr. President, I've got about another ten minutes of submissions.

18 I don't know whether you would like me to try and finish this evening or

19 whether you would prefer me to resume tomorrow morning.

20 JUDGE ROBINSON: Yes, try to finish.

21 MR. GREENWOOD: I shall endeavour to do so.

22 Now, there has been no attempt by the Defence to be more specific

23 than simply seeking this broad range of intercepts of any meeting where

24 General Ojdanic was a participant, any conversation in which he took

25 part. And yet General Ojdanic must know perfectly well what were the

1 main meetings that he attended during that period. It simply isn't good

2 enough for counsel for the Defence to say that he doesn't remember every

3 telephone conversation he had. Well, one wouldn't expect that. But I

4 would imagine that he does remember every major meeting that he went to

5 during that period, every conversation he had with the president or a

6 senior member of the government. And yet nothing which narrows down the

7 field, nothing which enables people to pinpoint documents more readily

8 has been offered.

9 Moreover, the second limb of the request seeks all intercepts,

10 summaries, records in which General Ojdanic is mentioned, even though he

11 wasn't a party to the conversation and wasn't present. And the third

12 limb seeks all correspondence, memoranda, reports, recordings, or

13 summaries of any statements made by General Ojdanic during this period

14 to: "Any representative of your organisation, including sources of

15 information working on your behalf."

16 Now, we say that comes nowhere near the level of specificity

17 required by the Appeals Chamber in Blaskic and Kordic or the level of

18 specificity required by Rule 54 bis. It is a classic instance of a

19 fishing expedition. What the Defence wish to do is they want leave to

20 troll through the records of the intelligence services, the armed forces,

21 the foreign ministries, the embassies, and the other agencies of

22 originally 25 states; now we're narrowed down to 12.

23 In the Delalic case, Judge Hunt, to whom my learned friend Ms.

24 Swords referred earlier, defined a fishing expedition in these terms:

25 "One where the party that had no evidence that fish of a particular kind

1 were in the pool, but wanted to drag the pool to find whether there were

2 any such fish there or not."

3 Well, in response to your question, Mr. President, Mr. Robinson

4 quite candidly admitted that there was always an element of fishing in

5 any application for disclosure of documents. What characterised his

6 request, he said, is that it was effectively a licensed form of fishing.

7 He got his certificate, he could dip his rod into the pond. He's not

8 seeking to dip a rod into the pond. He's seeking to take an ocean-going

9 trawler out to sea with a dragnet as fine as possible and drag it up and

10 down the oceans until he finds something that looks interesting. Nor is

11 he Captain Ahab searching for the white whale. He doesn't have one

12 particular piece of information, one particular fish in mind. He's after

13 whatever fish can be found.

14 Keep in mind also, Mr. President, that footnote that I read out

15 from that application for disclosure. The footnote envisages a second

16 request at a later stage. It's not too difficult to contemplate what

17 that's going to be. It's going to be a request for, Defence having

18 already sought intercepts of any conversations or meetings of which

19 General Ojdanic was a party or where he was mentioned, the next request

20 is going to be for everything where he isn't mentioned because it's the

21 fact that he isn't mentioned or the fact that his name didn't come up

22 which is significant in showing that he was involved. That's what lies

23 as the next step down this particular line. So we say it doesn't come

24 near to meeting the specificity requirement.

25 What about the requirement that the request be not unduly

1 burdensome? Well, the Defence has claimed that no state has shown why

2 the request would be unduly burdensome in this case. That's an expressed

3 statement in their June 2003 submissions. Well, that quite simply is not

4 the case. In paragraphs 26 to 30 of the United Kingdom's written

5 submissions, we did indeed set out why the request would be unduly

6 burdensome. The short answer is that quite apart from the sheer volume

7 of material which is potentially covered by a request as broad as this,

8 the material which would have to be searched in order to find this

9 information is held in the United Kingdom by several different

10 departments or agencies. It's not gathered in one place. It is by no

11 means, all of it, available in electronic form. That rather facile

12 suggestion that a word search with the word Ojdanic is a good place to

13 start is patently not going to produce the answer that the Defence want.

14 The Defence wants material which is often held only in written form, not

15 held electronically. Indeed, that I suppose is recognised in fairness in

16 the e-mail of September of 2002 by the way in which it says that a word

17 search might be a good place to start. Where would one go, one asks,

18 after that start has been made?

19 And the failure to be specific is a large part of the problem

20 here. Even where the defendant could easily have been more specific, for

21 example by listing the meetings which General Ojdanic attended, they

22 haven't done so. It's perfectly apparent that the burden in this case is

23 going to fall entirely on the states. The Defence really doesn't wish to

24 be involved in facilitating that task at all.

25 Mr. President, two other points briefly, if I may, in conclusion.

1 The first concerns the requirement of relevance and necessity that the

2 information sought must be relevant to the trial and its disclosure must

3 be necessary for the trial, the requirements set out in the Kordic case

4 and in Rule 54 bis. We respectfully endorse the submission made earlier

5 by counsel for the Government of Canada that Kordic does not preclude

6 states from raising this issue, though of course the question of whether

7 information is relevant or necessary falls to be determined by the

8 Chamber. It's not something on which the states can have the last word.

9 And the United Kingdom has certainly not suggested that it can.

10 But the problem here is that when the dragnet has been cast as

11 wide as it has, it's almost impossible to say what is going to be

12 relevant or whether its disclosure is going to be necessary. And the

13 submission made by the Defence both in their June brief and in their

14 speech this afternoon that of course anything might be relevant, if you

15 know enough about the case, in showing that General Ojdanic didn't have

16 the necessary knowledge, didn't have the necessary mental state. That's

17 a submission which really proves too much. Far from showing that the

18 material sought is indeed necessary, it shows that the Defence wants to

19 troll through whatever it can get its hands on in order to try and

20 identify something relevant and something necessary in the middle.

21 The Defence of course is not required in a criminal trial to

22 prove a negative. The burden is on the Prosecution to prove that General

23 Ojdanic committed the offences charged with the necessary mental element.

24 The Defence is not required to prove his innocence. And therefore

25 seeking a vast volume of material like this really cannot meet the

1 requirement of relevance and necessity.

2 Lastly, Mr. President, a brief word bearing in mind My Lord Lord

3 Bonomy's comments a moment ago about the national security concerns. Let

4 me make it clear that the United Kingdom is not seeking a blanket

5 national security exception. But the Blaskic case does make clear that

6 national security concerns of states are relevant considerations to be

7 taken into account and the procedure in Rule 54 bis was fashioned

8 precisely to enable that to be done, to enable a security issue to be

9 raised about certain information. But in the present case, it's almost

10 impossible to do that. One cannot conduct that exercise with a request

11 in terms as broad as this.

12 Now, that there are going to be security concerns we say is

13 perfectly obvious. Of course it is known that communications are

14 intercepted. But that doesn't -- that's not the point at all. The

15 question is the security significance of a particular conversation having

16 been intercepted at a particular time; the method by which it was

17 intercepted, which may be of considerable relevance to its reliability

18 and therefore to the strength that the Defence, the weight the Defence is

19 seeking to place upon it.

20 And take also the human intelligence element. The third part of

21 the request is perhaps rather coyly drafted, but that reference to

22 "sources acting on your behalf" is plainly intended to include informants

23 and human intelligence sources. And that potentially raises a vast

24 security concern about the identification of somebody whose life may be

25 put at risk, the identification of methods of intelligence gathering,

1 which might put people's lives at risk in the future.

2 Now, I take My Lord Lord Bonomy's point that he's not been

3 greatly assisted by the fact we haven't been able to go into detail about

4 the national security concerns. The problem is the breadth of the

5 request is such that it's extremely difficult for the states to pinpoint

6 which pieces of information might raise the concern. That is why the

7 whole purpose of Rule 54 bis is, we say, being subverted by this

8 application. Rule 54 bis permits a balancing of security interests with

9 against the necessity of having information for a trial. You cannot

10 achieve that balance with a request as broad-brush as this.

11 That is why our respectful submission is that this application

12 should be dismissed. We do not, with respect, feel that the order can be

13 refashioned on the hoof in a way which might meet our concerns. What we

14 would call on the Defence to do is what it should have done in the first

15 place: to go through the Rule 54 bis initially by entering into a

16 dialogue with the states concerned. That is the only way this matter can

17 be approached.

18 Now, Your Honour, I apologise for having trespassed beyond the

19 6.00 finishing time. Unless I can assist the members of the Tribunal in

20 any way, that concludes the submissions for the United Kingdom.

21 JUDGE ROBINSON: I thank you, Professor Greenwood. We will

22 adjourn now until tomorrow afternoon at 3 o’clock.

23 --- Whereupon the Motion Hearing adjourned

24 at 6.11 p.m., to be reconvened on Thursday,

25 the 2nd of December, 2004, at 3 p.m.