Tribunal Update 159: Last Week in The Hague (10-14 January 2000)
Tribunal Update 159: Last Week in The Hague (10-14 January 2000)
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",
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
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
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.