Institute for War and Peace Reporting | Giving Voice, Driving Change

Test Case

Tribunal Update 159: Last Week in The Hague (10-14 January 2000)
By IWPR

wants membership of the international community.


"The co-operation with the Tribunal is a necessary step for Croatia in terms


of its joining the international community and receiving development


assistance", the Office of the Prosecutor (OTP) spokesman, Paul Risley, told


IWPR last week.


Asked if he believed that Croatia's co-operation would improve once a new


government took office in that country, he replied positively but remained


cautious nevertheless. "The latest political developments in Croatia are


startling", he said expressing the hope that, "the complexities of the


political situation will be resolved and that Croatia will recognise the


benefits" to be derived from changing its attitude. "But the issue of


co-operation with the Tribunal still must be resolved," Risley added.


"It is one of the major outstanding issues" for Croatia and "it is not a


political matter but the matter of Croatia's standing in the international


community", he said.


Last year, the Tribunal reported Croatia to the UN Security Council


fornon-compliance with the request to surrender Mladen Naletilic Tuta and


co-operate in the investigation into possible crimes committed during


operations Storm and Flash. "Until the non-compliance is resolved by either


side--the Security Council or Croatia--we are frozen in the status quo",


concluded Risley.


Dissatisfied with Croatia's "strategy of failing to honour obligations" and


the small number of documents submitted so far, prosecutors in


theKordic/Cerkez case last week asked judges to either re-issue a request to


Croatia to hand over documentation demanded some time ago. or to explain


before the court why it was not possible to fulfil the request.


At a special hearing, the prosecutor reminded the judges that the Tribunal


has been trying for three years to obtain a sizeable "package" of documents


relevant in the first instance to the Blaskic case and now to the


Kordic/Cerkez case. The prosecutors complained that the Croatianauthorities


had mostly responded that the documents are not in their possession or that


to hand the documents over would threaten Croatian national security


interests. The prosecutor alleged such action was a "strategy or campaign to


obstruct and delay the work of the Tribunal."


"Unless the Court takes stern measures", the prosecutors fear the documents


might be produced too late - after the case of the prosecution is concluded.


In Blaskic case, heard before another Trial Chamber, the prosecution


received only a box of "mostly irrelevant documents", prosecutor Kenneth


Scott said.


The documents the prosecution has requested refer mostly to the linkage


between Croatia and the Bosnian Croats and should, among other things, prove


that the Croat-Bosnian conflict in B-H was international in character. If


Croatia claims that those documents are "lost or destroyed", the prosecution


asks that "a senior Croatian official come to the Court and give a full


account" of why the requested material cannot be produced.


Scott believes that the Croatian minister of defence or justice should


appear. He warns that lawyers--Croatia is represented by US lawyers David


Rivkin and Lee Casey in these hearings--cannot know the details about where


the documents are and that, in addition, they are not testifying under oath.


Claiming that Croatia fulfils court orders, representatives of the


(out-going) government in Zagreb maintain that the state should first review


the requested documents to ascertain whether any, like for example the


correspondence of late President Franjo Tudjman, would compromise interests


of national security.


"We are asking for more time in order to formulate possible objections,"


Casey said. The prosecutors, however, believe that "time has run out" and


that Croatia could have formulated those objections already.


Judge Richard May has announced that the decision of the Trial Chamber on


these requests will be announced following the return of judge Patrick


Robinson, to The Hague next week. The judges will then announce the steps


they intend to take in relation to non-compliance by the Bosniak-Croat


entity of B-H.


A separate hearing, related to the failure to comply with Tribunal requests


addressed to the government of the Federation of B-H, took place last week


before the same Trial Chamber. Indicating that the prosecution had received


in the last three years only "a handful of irrelevant documents" from the


Federation, the prosecutor requested that the court take measures to enforce


its orders.


Pointing out that the Bosniak side in the B-H Federation is co-operating


with the Tribunal, the prosecutor warned that it is the Croatian side in the


Federation that is, just like Croatia proper, obstructing the Tribunal's


work. The Bosniak side, as was confirmed by its representative at this


hearing, does not have access to the archives of the HVO, Herceg-Bosna and


the Croatian Democratic Union (HDZ).


The prosecutor requested that the court order several Federation ministers


to appear before the Chamber in connection with the stated obstruction.


The defence in the Kordic/Cerkez case has for its part requested documents


from several parties. The hearing was held with representatives from the


European Community Monitoring Mission (ECMM) and the Netherlands. The


defence requested the court to send binding orders to these two parties.


The defence wants to obtain the documents from the ECMM and UNPROFOR (United


Nations Protection Force) linked to Kordic and events in some villages


around Busovaca. However, given the volume of UNPROFOR's archive, it


addressed its requests concretely to the Netherlands, whose battalion was


located in central Bosnia. The Netherlands representative, however, believes


that the defence's requests have too broad a scope and directed the defence


back to the UNPROFOR archive. The Netherlands representative also deems that


third states must be granted wider margins to invoke national security


interests than the states of the former Yugoslavia.


The ECMM, however, warns that their archive is confidential and not subject


to disclosure to any court. The defence, however, does not accept that


argument, warning that the ECMM had previously granted prosecutors access to


the archive. The defence also requested documents from the British


government, which also had a battalion located in central Bosnia. The


defence pointed out that there is a chance it might obtain some of the


requested documents from that government.