IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Order of:
27 January 2000
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
_______________________________________________________
ORDER ON EX PARTE APPLICATION FOR ISSUANCE
OF AN ORDER TO THE NETHERLANDS GOVERNMENT
_______________________________________________________
Defence Counsel
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr.
Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic,
for Mario Cerkez
The Government of The Netherlands
Mr. Herman von Hebel
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the International Tribunal"),
BEING SEISED of “Dario
Kordic’s ex parte, in camera Application for Issuance of an Order
to the Netherlands Compelling the Production of Documents and Other Materials”
(“the Application”) filed by the Defence for Dario Kordic (“the Defence”) on
15 December 1999,
NOTING the Scheduling Order of the Trial Chamber of 13 December 1999 setting the matter down for hearing on 14 January 2000,
NOTING that the matter was initially set down to be heard ex parte and in closed session, but that, by consent of the parties, the hearing was held in open session,
HAVING HEARD the arguments of the parties in respect
of the Application on 14 January 2000, in respect of each category of documents
sought by the Defence1, as follows:
- With respect to category 1 (Battalion War Diary for Units of the Dutch Army), the Netherlands Government ("the Government") states that it does not keep such material and that no such diaries can therefore be produced. The Defence accepts the statement of the Government;
- With respect to category 2 (Daily Situation Reports maintained by units of the Dutch Army), the Government states that such reports relate to the command and control structure of UNPROFOR, and that the Government therefore has no such reports in its possession. The Government states that, even if it did have such information, it would likely be United Nations ("UN") classified material and therefore any decision to declassify such material would be a matter for the UN. The Defence accepts the statement of the Government that it has no such material;
- With respect to category 3 (Military Information Summaries ("milinfosums") and equivalent records), the Government’s argument is the same as in category 2. The Government also argues that the request lacks the required level of specificity. The Defence argues that the milinfosums are extremely important as they are the best contemporaneous journal of what occurred during the relevant period;
- With respect to category 4 (Documents describing the command structure of HZ-HB, HVO or HR H-B), the Government’s argument regarding access is the same as in category 2. With respect to the reference to Dutch Intelligence personnel, the Government states that the personnel provided to UNPROFOR were not mandated to undertake intelligence activities. The Government also argues that the request lacks the required level of specificity. The Defence argues that the structure of these organisations is a matter of considerable confusion, and is essentially the nub of this case;
- With respect to category 5 (Documents addressing the events in various named localities in the Lasva Valley), the Government argues that the material may be confidential in nature and that, at any rate, Dutch units or personnel were not necessarily present in or near the listed locations at the relevant times. Again, it is argued that this material forms part of the operational command and control documents maintained by UNPROFOR;
- With respect to category 6 (Contemporaneous diaries, journals, etc. kept by Dutch Army or Intelligence personnel), the Government argues that the request is far too broad and contains material of an unofficial character unlikely to be held by the Government. In relation to intelligence personnel, the Government refers to its response in respect of category 4. The Government also states that the material was of an administrative housekeeping character and, therefore, exchange of such information was not governed by UNPROFOR regulations. The Government states that the material may not have been archived or may subsequently have been destroyed, but that it has not yet been able to sufficiently identify and search for such documentation. The Government states that, if requested by the Trial Chamber, the Government would be willing to try to further identify and search for such information and report back to it;
- With respect to category 7 (Photographs showing fighting in the region,
weapons, military installations, humanitarian aid activities
and events/activities involving Kordic), the Government states that such material
is within the command and control of UNPROFOR and refers to its response in
respect of category 2. In relation to intelligence personnel, the Government
refers to its response in respect of category 4;
- With respect to category 8 (Videos showing
fighting in the region, weapons, military installations, humanitarian aid
activities and events/activities involving Dario Kordic), the Government repeats
its arguments with respect to category 7;
- With respect to category 9 (Minutes or records of the Mixed Military Working Group meeting in Sarajevo for certain dates), the Government states that such material is within the command and control of UNPROFOR, and the Government refers back to its argument with respect to category 2. The Defence states that it has received minutes from other sources and that this category is not a high priority;
- With respect to category 10 (Radio transmission logs between Dutch Army
or Intelligence units in Central Bosnia and Dutch Army Headquarters), the
Government argues that the request lacks sufficient specificity, and the material
requested would either be under the command and control of UNPROFOR, or the
records would not have been kept by the Government.
In relation to intelligence personnel, the Government refers to its response
in respect of category 4. The Defence accept the categorisations made by the
Government and suggest that the request could be limited to references to
Dario Kordic or the villages that are the subject of the Amended Indictment;
- With respect to category 11 ("Disposition of warring forces" maps), the Government refers to its arguments with respect to category 2. The Defence argues that these are particularly important as they relate to the issue of self-defence and the defence of the various villages;
- With respect to category 12 (Maps showing the disposition of Bosnian Croat, AbiH or UNPROFOR forces in April 1993), the arguments of the parties are the same as set out with respect to category 11; and
- With respect to category 13 (Orders of Battle or other documents showing the chain of command or organisation of the HVO or ABiH), the arguments of the parties are the same as set out with respect to category 11.
CONSIDERING the assurances of the Netherlands Government
("the Government") with respect to the availability of the documents,
and accepting the arguments of the Government that certain material sought is
either not in its possession (but that it is prepared to conduct further
searches in respect of material under category 6) and/or lacks sufficient specificity
to comply with the Blaskic Appeals Decision,
HEREBY ORDERS as follows:
- With respect to categories (i) to (v) and categories (vii) to (xiii) inclusive,
the Application is REJECTED, and
- With respect to category (vi) of the Application, the Defence is to further
specify what is requested by it and to co-operate with the Government for
the production of said documents.
Done in English and French, the English text being authoritative.
___________________________
Richard May
Presiding
Dated this twenty-seventh day of January 2000
At The Hague
The Netherlands
[Seal of the Tribunal]
1. The particular arguments enumerated contemplate
the general proposition by the Defence, as set out in their Application, that
it has complied in its request with the requirements of the "Judgment on the
Request of the Republic of Croatia for Review of the Decision of Trial Chamber
II" in the case of The Prosecutor v. Tohimir Blaskic, IT-95-14 (hereinafter
"the Blaskic Appeals Decision"). Where the Defence have raised no specific arguments
in response to those of the Netherlands Government, no further comment is made.
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