Milosevic Transcript 2003-06-03B

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Tuesday, 3 June 2003

[Motion Hearing]

[Open session]

--- Upon commencing at 3.03 p.m.

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: Your Honour, we meet again in relation to the application under 54 bis. Today I appear with Mr. Groome, Ms. Milenov, and Mr. Vlasic assisting us.

Picking up where we left off on the 10th of March of this year. Now, there is a great deal of material that has been provided to the Chamber, and it may be the Chamber will have a preference for how we should proceed because one thing that is quite clear is that we can't go through all the matters dealt with in the filings in detail in the hearing this afternoon. There's nothing like enough time for that. But it may help if I just remind you a little of the scene that was set on the 10th of March when the Chamber was dealing with a 54 bis application brought by the Office of the Prosecutor in respect of a number of documents on an occasion when it was argued as it is argued today that there had been a pattern of non-cooperation and obstruction by the authorities in relation to the documents that we need if we are to present this case against the accused, Milosevic, properly and so as to produce or enable the Chamber to produce the best and most satisfactory judgement. Now, that hearing was brought on as a result of an application and following extensive efforts by the Office of the Prosecutor to gather the documents it needs by the usual technique of requests for assistance, and ²¹⁶⁴⁹ the pattern of those requests were set out in charts, so the Chamber now has helpfully a comprehensive chart in two colours which sets out in respect of certain requests for assistance the initial summary basis for the application in response of Serbia-Montenegro as it now is and in summary the Office of the Prosecutor's comments in relation to each of the replies of Serbia-Montenegro.

I'll say a word or so about that list in a minute. But it was following a protracted period of time that the application was brought on.

Now, in that hearing, and I don't know if the Chamber has had an opportunity to refresh its memory as to what happened there, in that hearing and built on the response of Serbia-Montenegro to the application made, their written response, the following things emerged: First, for the first time, the government was taking the position in any event through its legal representatives that they there was an in-principle objection to the Office of the Prosecutor having any access to what was described as archives, and archives were discussed at some length, possibly in a way that diverted attention from the real subject of the application, and there was some expressions by the Chamber of difficulties about possibly ordering access to archives and so on. The Office of the Prosecutor through me saying that there's also a problem of this kind, namely, what is an archive? Some things are very obviously archives. Other things can be defined as archives by the authorities if they think that they can in their own terminology win on a point and by having something categorised as an archive block our access to it. ²¹⁶⁵⁰ And so archives featured quite extensively on that earlier occasion, it being acknowledged in the government's written materials that there had been efforts made by the Office of the Prosecutor to achieve consensual arrangements with the governments to inspect archives. Well, that hearing ended, as the Court will recall and is set out in our latest pleading, with an order from Your Honour for the Court that pending final determination of this matter, the government should respond to what was called a priority list of documents, and I said I'll come back to that, within two months, to comply with the requests in it as far and as soon as possible or to indicate the grounds of objection where it's taking to any request. So nothing said there about archives, and we'll come back to what was said there in a minute.

Our written suggestions or proposals for archives being with the government, nothing was done in the two-month period of any kind, and when the government's document was filed in this application, it repeated in a rather technical way its root and branch objection to the Office of the Prosecutor ever having access to archives. A little over a week after the expiry of the two-month period, there was a meeting in Belgrade between the Prosecutor and the high offices of Serbia-Montenegro, the President, the Prime Minister, and the Foreign Minister, and it was then made quite plain to the Prosecutor that there was no objection in principle to our having access to archives and indeed that we should be granted access to archives. That, if I might say so, accords with common sense and with the needs of a case like this. It also reflected earlier practices before the time when in these proceedings and for the first time this root and branch ²¹⁶⁵¹ objection was taken when there had been some of a limited and unsatisfactory but nevertheless some access to archives. And that's almost where we stand with archives.

I'm told by Mr. Djeric, who appears with others today, Mr. Obradovic and our friend from the embassy. He, I think, tells me that some steps are or have been taken to respond to our much earlier written proposal, our non-paper as it's called. But the reality is that despite an understanding now by the government that to course we have to be granted access to archives, despite every effort we've made in the past and materially for the last hearing to provide a scheme whereby this might be achieved, we're still waiting for any written proposals. Two and a half months or more have passed and we are coming close to the end of the Prosecution's case.

As I say, archives may have been something of a diversion on the last occasion, because actually, on the last occasion we came with very specific requests for documents. We sought binding orders against the government in respect of documents, and we argued that there was absolutely no reason why these documents shouldn't have been provided. And it was with that part of our application in mind that the Court made the order it did, and I remind us all that the order was that the government should comply with requests in and -- in -- that its requests in the application and within the two-month period as far and as soon as possible.

Before I come to the response of the government of Serbia-Montenegro to that order, I'll deal as I said I would with the list ²¹⁶⁵² of 100.

JUDGE MAY: Could you just stop. There is one matter we need to consider.

[Trial Chamber confers]

JUDGE MAY: Will the senior legal officer come forward, please.

[Trial Chamber and legal officer confer]

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: The list of 100 priority documents was a list prepared, served either just before and/or at the last hearing in order to reduce the problem that was being addressed to the Chamber and to make sure that everyone understood where our priorities lay, and so there was a priority list of a hundred on which we focused attention. And the order of the Chamber was in respect of, as I understand it, that 100 requests. The response to that 100 requests within the two-month period has been nil. Some documents have been provided in respect of requests outside that priority list, but as to the list in respect of which we made it clear we had a pressing interest, nothing provided. Last Friday, I think, four documents arrived from requests for assistance number 175 relating to MUP procedure, and some 11 documents from requests for assistance number 309 relating to MUP staff. We haven't yet been able to assess those documents which are only a small part of what's required in any event, and that is effectively the limit of what has been provided.

It has been abundantly clear to us at various times and for various reasons that many of the documents we have sought have been not ²¹⁶⁵³ only in the possession of the government for obviously they're in possession of the government, but they've actually been in possession of the lawyers representing the government. The only question being when they're going to be in a position to hand them over. Well, nothing has been handed over.

The only other development of which I must tell you, and it relates, if you've had an opportunity to become familiar with the two bundles of documents provided by the -- by the Office of the Prosecutor and by the government, it relates to, I think, the second tab probably, but it's at tab 9 in the Prosecutor's document at Registry page 21874 and following, and it relates to or is referred to at page 3 of the -- no, beg your pardon. It's not page 3. Page 19 of the document provided by the government.

JUDGE ROBINSON: Mr. Nice, to be fair to the government, in some cases when they have not provided the document, they have given an explanation.

MR. NICE: Certainly. And of course we'll come to some of the explanations in the time available, but I wanted -- if I may at the moment, I just wanted to deal with events of which you may not be aware relating to particular categories of documents. And I've dealt with the position about archival material, and it's now necessary, if I can, or desirable, if I can, just to deal with these particular documents of which the Chamber has heard a great deal, records of the Supreme Defence Council. And it's convenient to deal with them because the Chamber having heard the evidence thus far in the case can have absolutely no doubt about ²¹⁶⁵⁴ the significance to this trial generally of that body, of the way it operated, of the degree of the accused's authority and power over it, and indeed it's been referred on several occasions, I think, to the records of the Supreme Defence Council.

Well, nothing was provided in the two months allowed by the Chamber, and it was only at the meeting with the Prosecutor or meetings with the Prosecutor on the 19th of May that some developments occurred and a new arrangement was made whereby it was thought the process could be accelerated, although given that there was a hearing due today at which an order could be made, they would have to be very swift action for there to be any acceleration.

Nothing happened until last week when there were contacts between the Prosecution and the representatives of the government where the point was pressed that if there was to be any advantage in this new arrangement, then the documents of the SDC, which are so critical for a witness coming shortly, those documents should be made available immediately. Interestingly, the initial reaction pressed by the government was that there would be no access to these documents at all until after today's hearing. But the point was not yielded, and eventually it was conceded that part of those critical documents could be viewed last Friday and Saturday, and so they were.

The Chamber will recall that the documents in which we have and have for a long time expressed an interest are the records of the Supreme Defence Council meetings which exist in two forms, one being a part of the other. The two forms are stenographic notes which are backed by tape ²¹⁶⁵⁵ recordings and, therefore, notes which it will always be finally and if necessary to verify for their accuracy and which will provide the best conceivable evidence of how the accused operated in that council, the degree to which he had influence over others or the degree to which he was overborne by others if that ever should be his case. Those stenographic notes or records are part of meeting notes, and I say that because that's what the meeting notes themselves say, meeting notes being summaries of what happened in the meetings. It was only the meeting notes that were provided to a member of the staff of the Office of the Prosecutor last Friday and Saturday, about 300 pages, covering the period for the Bosnian indictment, covering the period of the presidency of Zoran Lilic. Documents that had previously been withheld from us, although some records of the Supreme Defence Council have been provided for another arguably far less significant period. And I note in parenthesis that no records of the Supreme Defence Council have been provided for us for the period following the 23rd of March of 1999 when they will be of extreme relevance to the Kosovo period. But we must move incrementally against the difficulties we encounter. The records of these meetings provided, that is not the stenographic notes, the short-form records, are indeed of interest and they point up absolutely the need to have the stenographic records made available to us. But despite it being absolutely obvious that these documents were available for distribution to us for months or years, despite it being the case, we've pressed for them not only in writing, in applications under this particular request for assistance but also under ²¹⁶⁵⁶ the request for assistance number 219, they have been withheld without any explanation save one for why they were being withheld. The only ground of objection in respect of those documents ever voiced in meetings has been the question whether they might require some measure of protection on production in court. That has been explained repeatedly to the government is not a matter we can deal with, for protection is entirely a matter for the Chamber. We can be sympathetic if we know what a document says to the suggestion that it falls within a category where protection may be appropriate. We can give general support if we judge that a proper thing to do. But if there is a desire to protect a document on grounds of national security, that's really exclusively, ultimately a matter for the government concerned, and if that was their concern, then it was a matter that they should have brought to the Court. They didn't. They simply stopped our having the documents until -- as a result of the arrangement to which I've described and the pressing nature of the request made to them last week, they allowed to us see part of the document.

Now, Your Honours, that's all I --

JUDGE MAY: Where will we find that in the priority list?

MR. NICE: It features at -- furniture has the two-coloured list --

JUDGE MAY: Yes.

MR. NICE: -- then -- yes, line 8. I'm grateful to Ms. Milenov. On page 3 in the way I have.

JUDGE MAY: Yes, 8 and 9. ²¹⁶⁵⁷

MR. NICE: 8 and 9, absolutely correct, yes. Those are the only two particular events that I need draw to your attention or non-events in the case of the archives that fill in the procedural history since the last occasion. And can I say just a couple of things in general before inviting consideration as to how we should proceed as to the balance of requests?

First, and I think this features in both of our written filings and in a sense recognising that these procedural applications are burdensome on all of us, the fact remains that documents are the key to cases of this kind without any doubt, and one has only to consider, as we say in both pleadings, the difference between the documentary material available at the famous Nuremberg trial where 21 accused had their fully contested cases disposed of in about nine months, where documents were fully available and a position in which we find ourselves in this court. The second general matter that I must refer Your Honours to is really a question of timing. I've dealt with, as it were, the timing of the order of the Court, a two-month period given, nothing produced beyond what I've spoken of. The Chamber should know that there are, of course, as at the meeting with the Prosecutor, protestations of change and protestations of an intent to cooperate. But the Chamber must also know that there is a deadline approaching, the 16th of June, where United States certification of cooperation is essential if certain aid is to be available to the states concerned. And it is one thing for proceedings to be extended beyond a deadline by protestations, and it is another thing for those protestations always or necessarily to be made good. ²¹⁶⁵⁸

JUDGE MAY: I don't think this Trial Chamber can concern itself with deadlines of those sort or political matters. We have to look at the facts here and the basis of this application and decide it as a legal matter.

JUDGE ROBINSON: I have to say, Mr. Nice, I have to consider that reference regrettable.

MR. NICE: Well, I'm sorry that Your Honour takes that view, but it's a reality with which we have to contend. I have in mind of course the care in which one has to approach these matters, and I remember Your Honour's concern on the last occasion where I ventured to be critical of the response of the government, and of course we're always very cautious about that, but the Court will probably want to have in mind that in some degree, it may be my caution or our caution in accepting what is or has been urged to us was and always has been backed by reality, for as you'll perhaps have in mind, drawn from paragraph 15 of our latest filing, since the last hearing, a particular element in the chain of cooperation, the former army Commission for Cooperation with the ICTY has been abolished, and you'll find at paragraph 15 of our filing material from elsewhere going to show why there was concern and why there always has been concern about the nature of the response we get to our applications. But His Honour Judge May is of course right saying that this application has to be determined as a matter of law. And what we would say is this: Determination has essentially to be on the basis of performance thus far without prejudice to whether present protestations may be shown in due course to be absolutely determined or capable of slippage, because it's ²¹⁶⁵⁹ the past performance, given the timing of the trial, that justifies the making of orders. And this point, in our respectful submission, is entirely valid.

We seek orders today for the production of documents that have been outstanding to us for months and years. If present protestations are absolutely sincere, as one hopes they are, there is nothing at all wrong with there being orders that will work in parallel with the intentions behind those protestations and ensure that the documents are produced. If for any reason the protestations of intention could be subject to slippage for whatever reason, then the orders will ensure that the material that is necessarily before the Chamber is before it.

And so accepting entirely that the decision has to be made in light of -- as a matter of law and in light of all the material before the Chamber, we would invite you to say that it is appropriate to look at past performance and on the basis of that to make orders which will be of no adverse prejudice to the authorities given their protestations recently expressed.

Those are the general points I'd make, and I've taken half an hour. The structure of the materials before you is as follows, and I don't know how long we're going to be able to sit this afternoon and therefore I --

JUDGE MAY: Not beyond half past four, so if you would be fairly quick.

MR. NICE: In which case, Your Honour, I must indeed be fairly brief if I, for example, have a few minutes to reply. ²¹⁶⁶⁰ There are a's the summary in the two-tone or two-coloured document. There is then our pleading with accompanying documents, and some of them have now been closed because there has been compliance however recent and late with the request for assistance, but the Chamber may think, having looked already at the issue of archives which we covered in tab 1, at the issue of Supreme Defence Council documentation which we covered at tab 9, and there's full argument on all of them, that the other documentation, the other requests in which you may want to -- or what you may wish to focus attention include tab -- yes. There's tab 10, which also deals with Supreme Command documentation, and I have said as much as I need to add to that.

There is then tab 11, which deals with some Kosovo documentation. Can I just draw to your attention, and it's necessary to do so on what is Registry page 21859 under paragraph 3, a point that is set out and that requires some general consideration.

Sixty-seven documents have been provided under these relevant requests, 119 broken down into A, B, C, as well. They've been provided despite the government's assertion that this request is over-broad. What we find concerning about these documents provided is, first, that they are by no means sequential documents. There has been selection of them. But that they are not responsive to the request. They would appear to be exculpatory and selectively so and that they are even outside the period we've asked for.

Now, I made the point on the last occasion none of us wants to be spending our time doing this unless it's necessary. We don't make ²¹⁶⁶¹ requests other than those we believe to be justified, and we have no desire to burden ourselves with paper beyond that which we already have, but our duty is to get the documentation.

We form a view and I'm not going to pretend we don't form a view about the response we meet, and when we see our requests for relevant documentation responded to in a selective way as described there, we express concern and invite the Chamber to have it in mind. The next request for assistance, tab 14, of particular significance is the Joint Command to which in summary the government responds by saying, "Well, the Joint Command doesn't exist in law as a body."

The Chamber will already be aware of the use of the term of documents that have referred to the term of witnesses who have referred to it and the attempt to avoid production of Joint Command materials on this ground is, we say, unhelpful. Sorry, Supreme Command. I was reading joint command and saying supreme command. I'm grateful to Ms. Milenov. We come to Joint Command later.

And as to the suggestion that -- yes. And, Your Honours, if you want to see the document that seeks, as it were, to hide or lose the presence of the joint command, it's Registry page 21862, which is the response of the relevant ministry of the 23rd of December of 2002, where despite all the evidence that you have of the existence of a Supreme Command, and I'm sorry for having muddled you, you will see what the ministry replied. It said this: "In order to acquire the requested information, this ministry addressed the Yugoslav army General Staff for ²¹⁶⁶² cooperation with The Hague Tribunal," I think the body that's now gone, "Which notified us by a note number so-and-so that the requested documentation was not under the jurisdiction of the Federal Ministry of the Defence and the Yugoslav army. This ministry then turned to the military cabinet of the FRY president, which by note informed us that the military cabinet and other offices didn't process documents related to the Supreme Command nor are provisions of the Supreme Command to be found in the constitution law on defence and so on.

So they asked some questions of ministries and on the basis of that provide nothing despite it may be thought by the Chamber the clearest evidence that of course it existed and its documentation must exist.

JUDGE MAY: Mr. Djeric, I'm told you'd like to address us. You can address us when the Prosecutor is finished. We try and do it in an order early way.

Mr. Nice if you would have regard to the time, please.

MR. NICE: Your Honour, I will. If we could -- perhaps I could actually now point you because I see the time and I don't want Mr. Djeric to be denied an equal time to address you. Tab 14 on the Joint Command is material, because of course despite everything that is said, as you can see from the papers we provide, documentation by the Joint Command has actually been published in books since. For tab 16 material on the council for harmonisation of positions on state policy, this is an extremely important area of a body whose sole purpose was to coordinate policy towards Republika Srpska and Republika Srpska Krajina and its series of documentation of the most obvious relevance. ²¹⁶⁶³ ^{BLANK PAGE} ²¹⁶⁶⁴ Tab 18 is document 219. We've considered this at great length in the past. It's far too detailed for consideration today. It incorporates the SDC minutes and a large number of other detailed documents required for a witness to be with us in just a week or so. And I think there was an expectation of expedition of this document on the last occasion. There has been no such expedition. I would have spent a little time on RFA 229, financial documentation, but I'll move on I think to tab 27 -- no, I needn't worry with that over time. I needn't worry about that in light of time. Tab 30 is the request in respect of which we received 11 documents on Friday, and tab 34 is just a slight odd one. It's to do with Vukovar Hospital records and whatever the position of the government the accused already produced one or some of those documents himself. Your Honour, we would invite you to say, looking at the overall history, that the orders sought by the Prosecution item by item on the list, and we deleted wherever it's been possible to delete on the grounds the requests have finally been honoured, we would ask you it say that these orders should now be made, that you can be quite sure that wherever necessary and as forecast in our application, representatives of the Office of the Prosecutor will do what is necessary to make the task of dealing with this documentation feasible and economic in use of everybody's time, but the time simply has come for these orders to be made lest the Chamber should be asked to reach a decision at the end of the exercise on material other than the best and indeed material that simply may not be sufficient. ²¹⁶⁶⁵ In light of the time I've taken unless I can help further at this stage, I'll stop.

JUDGE MAY: Yes, Mr. Djeric.

MR. DJERIC: Your Honours, I'm glad to be once move before this Chamber. With me today is Mr. Obradovic, who is the deputy head of the international legal department in the Ministry of Foreign Affairs of Serbia-Montenegro, and Mr. Panceski who is first secretary of our embassy in The Hague.

I would like to make a few general remarks on the last Prosecution's submission, and then I will summarise very shortly our argument in respect to archives and will then respond to the new contentions of the Prosecution and then will perhaps such on certain new issues raised in the Prosecution's response. I will certainly not be 40 minutes long. At the end, perhaps I would ask for a closed session to discuss certain issues.

I would like to make a few first few general remarks on the latest submission of the Prosecution, which begins by describing our 6 May submission as, and I quote, "Totally unacceptable." It accuses Serbia and Montenegro as merely providing new excuses, adding that such excuses are either misplaced, insincere, or both. And this is the tone that the Prosecution has set for today's oral hearing. We find such a tone unacceptable, although we understand that the Prosecution needs to resort to such inflammatory rhetoric in the absence of legal arguments for its claims.

Needless to say, the Prosecution's assertions are groundless. ²¹⁶⁶⁶ First, since the last hearing, Serbia and Montenegro has supplied the Prosecution with documentation pursuant to seven requests for assistance mentioned in the application under Rule 54 bis. That is 114, 175 which is point 45 of the priority list as set by Mr. Nice, 211, 207 C, 336 which is point 151 of the priority list, 253, and the request of some documentation in relation to request 309. These are points 137 to 139 of the priority list.

This clearly demonstrates that there is -- that cooperation is in process and we find it progressing well. However, here in this procedure we a dispute with the Prosecution over certain legal issues, and we have a dispute over interpretation of certain facts, and for that we need the determination of this Trial Chamber.

Second, I wish to emphasise that we have not provided new excuses but instead we have raised perfectly legitimate objections under Rule 54 bis (A). Of course Serbia and Montenegro has the right to do so under the Statute and Rules, and in this the government is indeed an adverse party to a litigation as any other government would be and has been in a similar procedure. Of course this does not mean that the government is not assisting the International Tribunal as the Prosecution contends. The Prosecution may or may not agree with our objections, but it has no right to accuse of bad faith and non-cooperation a state that is fulfilling its obligations under the Statute, and it's exercise its rights under Rule 54 bis.

This is even more so when the state Serbia-Montenegro was actually following what was ordered by this Chamber and I'm quoting in part, "To ²¹⁶⁶⁷ indicate the grounds of objections where it's taken to any request." It is completely unacceptable, therefore, to say that Serbia and Montenegro failed to respond meaningfully to the Chamber order. Furthermore, we wish strongly to reject the following Prosecution's assertion, and I'm quoting: "The impeding conclusion of this trial, of Milosevic trial, may well encourage Serbia and Montenegro to delay its response until the end --" I'm sorry, "to delay its response until the need for documents is overcome by events."

The implication of this statement is that the government is hiding or withholding evidence for this trial, and this must be firmly rejected. It should be remembered that it is this government that arrested and surrendered Mr. Milosevic in the first place. It should also be remembered that Mr. Djindjic, who was prime minister, took responsibility for this act, was assassinated in March, and at the same time from the investigation into his murder, it has transpired that there has been a further list of targeted officials, prominently including certain ministers responsible for cooperation with the International Tribunal. To suggest in these circumstances that the government is actually withholding evidence is quite cynical, especially if one compares the armchair perspective of the Prosecution with the tangible challenges faced by the government.

Your Honours, I would like now to say something about the specific requests for assistance. Let me first note that the Prosecution has withdrawn its request for a binding order on 15 requests for assistance. That's at paragraph 9 of their last submission. In relation to additional ²¹⁶⁶⁸ seven requests, the Prosecution has not been asking at a moment any further action by the Trial Chamber. This means that there is no request for an order with regard to 22 out of 36 requests for assistance that the Prosecution brought before the Chamber in this proceeding. The number of 36 requests for assistance is a total of the original 32 contained in the original application and four that were added in the priority list. The Chamber will recall that in the original application, the Prosecution dramatically accused the government of non-cooperation as it did today and stated, and I'm quoting: "The government has succeeded in stalling, avoiding or ignoring a substantial number of RFAs." This was widely reported in the media and used by the Prosecution in its contacts throughout the international community. Now what transpires is that the Prosecution, in fact, does not request any action from the Chamber with respect to the majority of requests. And this is a strong confirmation of what we already said before, that this proceeding is actually completely unnecessary and in reality aimed to exert political pressure on the government to provide general access to archives. Now, in accordance with Rule 54 bis and considering the damage that the Prosecution's dramatic assertions have made to Serbia and Montenegro, both domestically and internationally, we find it appropriate and submit to the Chamber to formally dismiss the application with regard to the requests that the Prosecution has chosen not to pursue. Therefore, we respectfully submit that the application should be dismissed in relation to the following requests for assistance: Number 81, 92, number 103, 110, 114, 171, 172, 207, 221, 226, 249, 250, 252, 253, 304, 310, 311, ²¹⁶⁶⁹ 314, 325, 336, 338, and 349.

Your Honours, the above clearly demonstrates that today only a minority of requests have not been completely responded to, and with respect to these, our comments and objections have been outlined in our last submission to the Chamber, especially in our comments in the priority list, the comments which are in red letters.

In any case, we submit that these requests, these minority of requests for assistance is resolved in the ongoing process of cooperation. As an example, I wish to draw the attention of the Chamber to request 229, which was also mentioned by Mr. Nice. That is a request for financial documentation. And it is at tab 21 of the annex to the Prosecution's response. It is also at points 108 to 120 of the priority list. In February this year, I have informed the Prosecution's representative in Belgrade that we have not been able to find these documents, that the government of Serbia, the general secretariat has informed us that there are no such documents in their archives. It took two and a half months for the Prosecution to say in its latest response of 20th of May that the requested documentation may be located in the Ministry of Finance. What we did is to immediately contact this ministry and are now waiting for the response. I'm giving you this example, because it demonstrates how cooperation proceeds and how it can be resolved in everyday contacts and how only now we have received specific information in relation to a number of requests submitted by the Prosecution.

Your Honours, I'm not going to dispute that there are certain ²¹⁶⁷⁰ contentious issues left that need to be resolved by this Trial Chamber, and the most important one, of course, is the issue of whether the Prosecution has the right to access and survey archives of a state.

JUDGE ROBINSON: Mr. Djeric, prior to the Prosecution informing you that the documentation could be found in the Ministry of Finance, I take it that the government had not searched that ministry for the documentation.

MR. DJERIC: I believe you are right. We have -- what we do is usually contact the relevant part of the government. We never had any indication that these documents were the documents of the Ministry of Finance. They were either looked as either documents of the Serbian government of which obviously Ministry of Finance is a part, but we submitted the request to the government. The government searched its archives which are located as an archive in the -- as a Central Archive in the general secretariat of a government, and we got the response that they cannot find it neither by date, neither by reference. Now --

JUDGE ROBINSON: But would that have been a place to look for the documents since the documents -- since the documentation sought, as I understand it, was of a financial nature.

MR. DJERIC: The documentation sought was not exclusively of a financial nature. However, we've been able to -- we have the information that it is related to government of Serbia, so that's where we looked.

JUDGE ROBINSON: I see.

MR. DJERIC: And we didn't have specific information that it may be located in the Ministry of Finance. ²¹⁶⁷¹

JUDGE ROBINSON: Okay. Thank you.

MR. DJERIC: Going back to the issue of archives. We have I think repeatedly demonstrated to the Chamber that the Prosecution does not have such a right, a right to have access and survey archives under the Statute and Rules. However, the Prosecution keeps pressing this issue, both before the Chamber and for us, which is quite important for us, in its contacts with the international community.

We submit that it will be necessary thus that the Chamber resolves this issue, because indeed the Court that gives the authoritative interpretation of the Statute and not the Prosecution. At the same time, and part of it was mentioned by Mr. Nice, we are ready to work with the Prosecution on certain modalities of limited access to archives, but it should be understood that this government holds that this is done as a courtesy of a state willing to assist the Prosecution and not as a matter of legal obligation under the Statute. So we are ready to move forward with these practical arrangements, but at the same time for the sake of legal certainty and the rule of law we need your determination on the issue of archives.

The Prosecution's requests to access and survey state archives is nothing else but a request for a grand fishing expedition. The Prosecution has not only been fishing for documents, it is also fishing for a legal basis for its requests. I should remind the Chamber that in the original application the Prosecution based its request for archives under Rule 54 bis. We have demonstrated that such a request manifestly failed to meet the requires of Rule 54 bis. ²¹⁶⁷² Now, in its reply, in its further submission of 27 February, the Prosecution retained Rule 54 bis justification but also claim -- claimed that Rule 39(ii) and Rule 54 in concert provide the legal basis for its request for archives. And we have demonstrated at the oral hearing, I believe, that Rule 54 bis was lex specialis and that Rules 39 and 54 did not apply.

JUDGE ROBINSON: Mr. Djeric, I'm interested in the modalities that you're working out with the Prosecution for limited access. I mean, how far has that exercise reached?

MR. DJERIC: Can we go into closed session, please?

JUDGE MAY: Yes.

[Private session]

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[redacted]

[Open session] ²¹⁶⁷⁴

THE REGISTRAR: We're in open session.

MR. DJERIC: Yes. Okay. So as I said to the Chamber, the Prosecution was changing its purported legal basis for access to archives. The final -- the final argument made in the response of 20th of May is that a legal basis for such an exercise can be found in Article 18, paragraph 2 of the Statute and that access to archives is actually an on-site investigation, as the Prosecution claims. Now, in contrast to these changes, to these wavering legal bases proposed by the Prosecution, we have remained constant with our argument with respect to archives. But instead of responding to our argument the Prosecution seems to be inventing new -- new justifications for its requests for state archives. And I will briefly summarise, really briefly, our argument.

The first point is that cooperation of states is mandated by Article 29 and then further regulated by the Rules. In the Rules, certain areas of cooperation are regulated by detail and exhaustively. For example, transfer of detained witness. For example, execution of arrest warrants and also orders of states -- orders to states to produce documents.

With respect to documents, obviously the cooperation is governed by Rule 54 bis, which exhaustively regulates this aspect of cooperation. As requests made by the Prosecution to access survey state archives manifestly fails to meet the requirements of Rule 54 bis, thus it should be rejected, and in particular, the Prosecution's request fails to meet the requirements that documents must be specified. ²¹⁶⁷⁵ Now, second point is that Rule 54 bis clearly excludes a right of a party to physically access and operate in state archives which the Prosecution actually wants. Instead, Rule 54 bis mandates that identifiable documents should be provided by the state concerned to the parties and is -- this also falls from what the Appeals Chamber said in the Blaskic case, that production of documents is an action that may be taken only and exclusively through organs of states. That is at paragraph 27 of the Blaskic judgement.

Again, the Prosecution manifestly fails to meet these requirements.

Now, we hold that Rule 54 bis is lex specialis, that is exhaustively regulates production of documents and thus clearly excludes application of Rule 39. Also, a general power of the Judge under Rule 54 of the Rules is qualified in respect to the production of documents. In a sense, that is regulated by Rule 54 bis. That is what we submit. Now, even if Rule 54 together with Rule 39 would be applicable to the production of documents as it is not, any order by the Chamber would have to follow the requirement set in the Blaskic judgement and then again the Prosecution's request for access to archives would not meet these requirements.

Now, the latest submission of the Prosecution, that is tab 1 of the annex, it invokes Article 18, paragraph 2 of the Statute and claims that the Prosecution's power to conduct on-site investigations extend to access and survey of state archives and we submit this is an error for two reasons. First, it is clear that the term on-site investigations means ²¹⁶⁷⁶ investigations on the site, on the scene of the crime. It is obvious that the alleged crimes in the case against Mr. Milosevic were not committed in archives.

Second, according to Rule 37, and I quote now: "The Prosecutor shall perform all the functions provided by the Statute in accordance with the Rules." Therefore, the function of the Prosecutor provided by Article 18, paragraph 2 of the Statute must be performed in accordance with the Rules and has already demonstrated, the Rules mandate that all cooperation with respect to documents is governed by Rule 54 bis requirements.

Therefore, even if the term "on site investigations" could be extended to archives, according to Rule 37, the power of the Prosecution in this case could be exercised only in accordance with Rule 54 bis, and the Prosecution will not meet the requirements.

An implied power of archival investigation submitted by the Prosecution surely cannot override express provisions of Rule 54 bis, and the Prosecution says at tab 1, and I quote, "Were archival investigation not envisaged by the Statute and Rules, the Tribunal would be unable to fulfil its mandate to prosecute."

Now, we submit that not only this contention is contrary to the Statute and Rules, but it also fails to explain the fact that the Tribunal has indeed been able to prosecute for the last ten years and to fulfil its mandate without resorting to the so-called archival investigation. Now, the Prosecution contends that documents in the archives of Serbia and Montenegro were actually - this is a quote again - "The very ²¹⁶⁷⁷ instrument through which the accused committed the crimes that are alleged." Therefore, there should be, according to the Prosecution, a difference between Serbia and Montenegro, perhaps other states on the territory of former Yugoslavia, and other states elsewhere with respect obviously to requests for archives.

Now, this is an old argument which was raised in the Blaskic proceeding, and the Chamber -- actually, it was the Appeals Chamber said that there was no legal difference between states on the territory of former Yugoslavia and other states. There is only a practical difference and this difference is in the fact that states in the territory of former Yugoslavia will be more often addressees of requests for cooperation under Rule -- under Article 29 of the Statute. So legal difference does not exist.

Now, just a couple of more points on the archives. The Prosecution claims again at tab 1 that it merely sought meetings with archivists and a tour of the premises of the archives, and it claims that there was no response to this until February this year. Now, this is not true, because the meetings were held in November and December 2000, but in fact, the Prosecution sought much more, and that was to assess archival materials.

Now, Mr. Nice is saying that we never raised our objections with respect to archives until the application under 54 bis was submitted, and I can say that this is not correct because we did so already, I believe, last -- sometime last year. We did it directly in contacts with the Prosecutor's office in Belgrade, and it was an ongoing theme in various ²¹⁶⁷⁸ contacts, and there are records of these meetings including with the Chief Prosecutor and our Ministers.

So what the -- actually the Prosecution wants with this request to survey and access archives, I will just quote once more shortly one of the requests that is 327, request number 327. The Prosecution asked, and I quote: "To survey and assess the records of the government for the period of 1991 to 2000," ten years. Then it follows: "Of particular interest are the stenographic minutes or other records of individual sessions of the government and its working bodies." So this was obviously not a request for a tour of premises. This was a request to expect the complete documentation of the government for the last ten years and to fish in that ocean of documentation.

Now, as I said with its last request to the Chamber, the Prosecution has taken even one step further. So access and survey is not sufficient. They are asking now to get the permission from the Trial Chamber to review, select, and reproduce relevant documents at the same time when they are in archives.

So what is this? I will be free to quote the words of Judge May uttered in the Kordic and Cerkez case in a similar proceedings to this, this is and I quote: "A glorified fishing expedition in which the Prosecution wants," and I quote again "To trawl through the documents in the hope that something will turn up." Trawl

Your Honours, Serbia and Montenegro respectfully requests a legal determination on the issue of archives because it has been exposed to continuous pressure by the Prosecution because this pressure affects the ²¹⁶⁷⁹ international position of Serbia and Montenegro, and because this is the most important reason, it is for the Court and not for the Prosecution to give authoritative interpretation of the Statute and Rules, and such a determination by the Chamber would contribute to the international rule of law and legal certainty.

Therefore, we submit, we respectfully submit that the Chamber reject the Prosecution's request to access and survey state archives, and specifically is to reject requests for assistance numbers 76, 95, 106, 326, and 327.

Your Honours -- Your Honours, I would respectfully ask now if we could go for a minute into closed session again.

[Private session]

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[Open session]

THE REGISTRAR: We're now in open session.

JUDGE ROBINSON: Mr. Djeric, I wanted to take you back to the construction that you placed on the term "on-site." In your submission, on-site referred to the place of commission of the crimes, and since the crimes were not committed in the archives, the term would have no application there. But I wanted to ask you whether that might not be too ²¹⁶⁸⁵ narrow an interpretation in the context of a Tribunal such as ours, which is an International Tribunal with specific jurisdiction over a territory, the territory of the former SFRY and whether the term "on-site" could not be properly applied to the territory of the former SFRY.

MR. DJERIC: Your Honour, of course the comparison with -- I mean, the thing that I said about whether crimes were committed in the archives was an example. I have to say that I don't believe that on-site means on the territory of the former Yugoslavia. I believe it relates to the site of the crime. It relates also to other places where -- where certain evidence can be found in a sense of guns, in a sense of bodies, et cetera, et cetera. So I don't believe that it relates to archives. That's one point.

The second point is that had the framers of the Statute and the Rules wanted to give such a wide interpretation and wide meaning to Article 18, paragraph 2, they would have said so. The usual meaning of on-site investigation is really the investigation on the site of the crime.

And then another point, you can compare -- there is Article 18, paragraph 2 which regulates the powers of the Prosecution. There is also Article 29 of the Statute. And if you compare these two, you will see that everything done in the cooperation or most of things done in the cooperation by states are done by them on the request of the Tribunal. And of course, if we take these two provisions, they should be interpreted in accordance with the Statute or with the view what was said in the Rules, I'm sorry, in the Statute. And the Rules are clearly -- the Rules, ²¹⁶⁸⁶ which are much more specific, never are using on-site investigation in any other meaning than the investigation on the site of the crime. But however, at the same time the Rules are having a specific provision on the production of documents.

So we have two general provisions of the Statute, but I think that -- that the clear picture, that the picture is much clearer with the Rules read together with the Statute where 54 bis is giving clear procedure how this is --

JUDGE ROBINSON: Thank you very much. I just wanted to get your view on that.

[Trial Chamber confers]

JUDGE MAY: Yes. Thank you, Mr. Djeric. Mr. Nice, if you could be quick, within at least ten minutes.

MR. NICE: I'll deal with points by headlines. The concluding passage that was not read from Blaskic goes on to explain that as a matter of policy -- well, is it goes on to explain and you can find the passage that once you work cooperatively as long as that is bearing fruit, but once it doesn't bear fruit then you're entitled to and should go to the Chamber, which is what we've done.

The points in rapid fire, the word "fire" being appropriate perhaps for the last point. Though we don't necessarily say on-site investigations is the way to approach it, Rule 54 as originally relied on in our first application gives a broad jurisdiction to the Chamber, but this is worth having in mind when we look at on-site investigations. The gun you find at an on-site investigations is no different in species from ²¹⁶⁸⁷ the order to commit the crime that you find in the archive. It's the order to commit the crime that brings about the crime. It's as much a gun as anything else. And it is, if we may respectfully say so, absurd to think that in the case of head of state and president of a federation, as this accused was, that it is not relevant to know what is in the archives that reveal how he managed the SDC, how the Supreme Command was organised, how, for example, one or other of those bodies decided to deal with the disposal of bodies which we know about going back to Serbia, matters of that sort. It is not remotely a fishing exercise. It is a proper investigation. And without those documents, it will be all too possible for whatever decision is made here to be later unpicked when it suits people's interests to reveal them.

And I come back to the point about stenographic notes. Mr. Djeric says ten years and over-broad. There are only about 60 or 70 meetings. It was possible for a member of the office to review in a day and a half some 60 of those meetings as summarised in the short form because the short form notes are indeed short and to see how valuable the meetings themselves will inevitably be. But one of the problems about minutes kept of meetings is that they may either A, be inaccurate or B, be intentionally selective. And we already forecast being able to bring you material from a witness which will go to how the issue of how the accused may have on occasions sought to have meeting notes in some way rendered favourable. So although the meetings notes are extremely valuable in what they point us to, they are simply not the best evidence. What this Chamber is concerned with is what this accused thought, ²¹⁶⁸⁸ what he did, and how he controlled others, and 70 records is by no means a large mass of material, and that's all that we would be obtaining in the stenographic notes of the SDC.

As to -- yes. And I'm grateful. From the records we do have already for other parts of SDC meetings, the minutes end in this way: "Stenographic notes make a constituent part of these minutes." The documentation is single. It happens that in point 8 and 9 of our request for a hundred we separated them out, but the Prosecutor didn't in the way that Mr. Djeric suggests she did rely on only the minutes. She wanted the documentation which is the term that was used by her, as I understand it, in the meeting and certainly in the letter that was sent. And documentation, when the documentation is a single record incorporating the stenographic notes reflects what we have always argued from the beginning in every conversation with Mr. Djeric and in every application is what's absolutely essential. And it will quite simply be the best evidence that you can have of these particular matters. I'm afraid I can't accept that there have been any root and branch objection to archives. I repeat that archives have become something of a diversion in these proceedings. Archives were mentioned in our original application. There was no archive referred to in the list of 100 priority documents for which we sought 54 bis rulings, and all that's happened since is that nothing's happened apart from under pressure there has been some acceptance that modalities must be introduced. But we still seek orders in respect of those documents originally in the list of 100 that are outstanding so that archives to this extent remains a diversion to the ²¹⁶⁸⁹ central part of this application.

As to whether there is any right to us to have access to archives, the answer is of course there is, for the reasons that I've already given as common sense under our powers of investigation given the analogy that Mr. Groome drew to my attention that a gun being the same as an order something in any event we've reflected in the arguments of I think it's Ms. Milenov in the documentation. It's also available to us at the order of the Trial Chamber under Rule 54 in the same way as I think search warrants not fully articulated in the rules but became available under Rule 54 which is a very broad power, and our original application was not under 54 bis. It has under 54 and 54 bis, and the discussion that was expected to generate was on that basis.

So if the Chamber is minded to give a ruling given the narrow focus of the hundred, then we would invite the Chamber to say yes, it can indeed order that they be given access to archives for this Chamber of all Chambers must be as interested as can conceivably be in records of the army and of the MUP as well as records where they constitute archives as opposed to just generalised records of the particular bodies presided over or attended by the accused. And I repeat that it is in a sense convenient to the government to describe as archives things that aren't. There are documents -- there are bodies of documentation that are clearly archives when they're swept up after the event and put into a big building and marked archives, they are archives, I suppose. But whether it's a distinction with a difference is another matter. We would invite the Chamber to say it certainly has power if it ²¹⁶⁹⁰ chooses to decide to deal with it in this hearing at the invitation of Mr. Djeric to say, "We must have access to archives." That's not in fact the subject matter of the application in principle, but it certainly is in a position to say we have that -- that it has that power to order that we should have that access. We would then of course have to deal with access in detail and the modalities are something that are in fact, so we are told, under review by both sides at the moment or by the other side but we're still waiting to see some development.

We would ask the Chamber to deal with this difficult problem serving as a diversion as it does in a way that will ensure that we do have access to the archives because in that way, we will be able to identify and bring to you the documents you will most need to have. I notice Mr. Djeric says that we've been able to perform our mandate or that the Tribunal has been able to perform its mandate without access to the archives. Yes, but with enormous complaint about the times our trials take.

Of particular concern to us and raised in the very last paragraph of our most recent filing is this: Despite all the things that have been said by Mr. Djeric, he has formulated no application for protective measures for any particular document. Now, the consequence of that is this: Applications for protection will be coming. They will be coming later, and they will add to the time before documents can be produced. You will recall from our latest filing that I pressed the government to say whether they were going to bring applications for protective measures and to make sure they were properly constituted and before you today. We ²¹⁶⁹¹ have said insofar as we can, bearing in mind a particularly sensitive problem that's identified in the pleadings, was identified on the last occasion and will be well in mine of the Chamber, we've said so far as we can, yes, if we can give general support to these applications we will, but it's a matter between you and the Chamber. Nothing has been formulated and this is simply going to add to the delay. And we would ask the Chamber in its resolution or pro tem resolution of this matter to ensure that it remains seized of these problems so that applications for protection if any are to be either brought by the government or channelled through us to Your Honours can be brought on swiftly, because this is the sort of problem that is going to arise will be further resolution of the differences between following on such court orders that may be made and/or negotiation and then the next step will be, but we now want to make an application for protection so you can't use the document. So another witness will either have to give his evidence in part with the threat of having to come back or will have to give his evidence from memory of documents without being able to refer to them. We then have to put documents in through other witnesses at a later stage and the Chamber will have to join things up. This is extremely concerning for us. It's been in our minds from the beginning. We've pressed them to do what they can do, which is to bring their concerns of the particular type we believe may underlie their anxiety not to produce some of these documents publicly to you and they haven't done it.

I'm afraid that I do not necessarily see any parallel between the arrest of the thousands of people and a denial of the suggestion that ²¹⁶⁹² evidence is being withhold -- withheld from us. These are entirely separate activities, and they may serve entirely separate objectives. What is clear is that there are considerable resources available to the government of Serbia-Montenegro. There is enormous intelligence available to it as witness the arrest of a thousand or 2000 people referred to by Mr. Djeric. Those resources, although not identical to the resources probably part of the same bodies as the resource required to produce documents have produced for you in the two months and thereafter two weeks since you made an order no documents in the list of 100. Mr. Djeric asks you to make a penal order dismissing a certain request for assistant. That would be entirely inappropriate in our submission. I haven't been able to tie them all up and I've only of course seen the particular document that was submitted today and can't deal with it on that basis, but I can tell you this, that all the requests for assistance that have been withdrawn have been all, bar possibly one, are outside the list of 100, and they've either been withdrawn because further materials were provided so that they could be closed either before or after the last hearing and/or because in light of the cooperation that is said to be coming and we can accept in respect of those particular documents may be coming, we don't seek to trouble the Chamber. We accept, particularly for certain categories of documentation, that we have an expectation of getting more. These are of course not the most important documents, not the documents likely to provide the most revealing evidence. If we accept we're going to get more, we really don't need to trouble you, and therefore, it's our attitude of cooperation in part and ²¹⁶⁹³ the provision of documents by the government that has led to our being able to withdraw those particular applications and there is no need for the Chamber to make any further order in respect of them.

JUDGE MAY: Mr. Nice, the time --

MR. NICE: That's all I have is to say.

JUDGE MAY: Yes. The time is now up. We'll consider these matters and give our ruling in due course in writing.

--- Whereupon the Motion Hearing adjourned at 4.41 p.m.