1 Thursday, 6 September 2001
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.10 a.m.
6 JUDGE HUNT: Call the case, please. Can we have the case called.
7 THE REGISTRAR: Yes. Good morning, Your Honour. This is case
8 number IT-99-36-PT, the Prosecutor versus Brdjanin and Talic.
9 JUDGE HUNT: Appearances for the Prosecution.
10 MS. KORNER: Your Honour, Joanna Korner for the Prosecution,
11 together for the first time this morning with two new faces to Your
12 Honour: Mr. Andrew Cayley, Senior Trial Attorney. He will be co-counsel
13 with me on the case. And as case manager, Denise Gustin, replacing Adele
15 JUDGE HUNT: Thank you. For Mr. Brdjanin.
16 MR. ACKERMAN: Good morning, Your Honour. I'm John Ackerman
17 appearing for Mr. Brdjanin, and with me this morning is Ms. Milka Maglov
18 from Banja Luka and Marela Jevtovic [phoen]. Thank you.
19 JUDGE HUNT: Thank you. For General Talic.
20 MR. De ROUX: [Interpretation] I am Mr. Xavier de Roux from the
21 Paris bar and I'm assisted by Mr. Pitron, and with Madam Fauveau.
22 JUDGE HUNT: Thank you. This is a Status Conference called in
23 accordance with the Rules. First of all, may I say that the original
24 order setting today -- setting the date and time of this conference
25 escaped with the time of 10.00. It was my error and I apologise for
1 that. As it happened, even 10.30 wouldn't have been much help to our
2 colleagues from Paris. But we had agreed that we would start the Status
3 Conference at 10.30, and it had not been a deliberate error.
4 The second apology I should make is to Mr. Cayley, whose name
5 appears out of order on the last order that the Trial Chamber made, and
6 I'm sorry about that.
7 Is there anything under the Rule relating to the conditions of the
8 accused that either accused wishes to raise before we get to the
9 particular matters that have to be discussed? Mr. Ackerman?
10 MR. ACKERMAN: No, Your Honour.
11 JUDGE HUNT: Mr. de Roux?
12 MR. De ROUX: [Interpretation] No, Your Honour.
13 JUDGE HUNT: Thank you. Well, the first thing I think we should
14 mention is the likely date for hearing. You were notified that it would
15 start early in January. We have noticed in relation to cases where there
16 are Serb defendants that there is usually a request that they should be
17 entitled to enjoy, if that's the right word, the Orthodox Christmas, which
18 is two weeks later than the non-Orthodox one, and that most trials after
19 the winter vacation in fact start in what would be properly described as
20 the second week of term. Bearing in mind that there will no doubt be a
21 lot of preparation to do in those circumstances, it would seem that the
22 trial should be listed to commence on Monday, the 14th of January. Is
23 there any problem with that from anybody?
24 I should hasten to add this, though. On the 16th of November,
25 when the present terms of all the Judges finish, there has to be an
1 election for the President of the Tribunal by the Judges who take up their
2 terms after the 16th of November, that is, the ones who were re-elected and
3 those who are elected for the first time. So that the arrangements that
4 we have made with the current President must be subject to the
5 possibility, and I stress it's no more than a possibility, that whoever
6 the new President is, there may be some reorganisation.
7 I can say that the whole of the Tribunal's preparations are, and
8 listings are, however, predicated upon the fact that this case will start
9 at the beginning of next year, and I certainly do not anticipate that
10 there will be any problem about that.
11 That leads me to a matter which is dependent upon the hearing, and
12 that is the disclosure of the names of the now ten witnesses.
13 Yes, Mr. Ackerman. I'm sorry, I didn't see you standing there.
14 MR. ACKERMAN: You had asked if we had any comment about the trial
15 date, and I can't remain silent about that. I am very anxious and hopeful
16 that we can start this case on the 14th of January. All preparations that
17 I have any control over are moving toward that date or a date
18 approximating that date. The problem is the Translation Department at the
19 Tribunal is not getting documents translated in a timely manner at all,
20 and it's possible that when we get to the 1st of January, there will still
21 be documents that are sitting in Translation, awaiting translation, and
22 those absolutely must be provided in the language of the accused before we
23 can start this trial, I would think.
24 JUDGE HUNT: Are they statements or are they merely documents
25 which have been produced because they have been seised somewhere in Banja
2 MR. ACKERMAN: Many of them are witness statements. We're getting
3 witness statements only in English. We're not getting translations, and
4 we're not getting translations of English documents so that my client can
5 see them. We're not alone in that. Every case has that problem right
7 JUDGE HUNT: That's stating it by way of a severe understatement,
8 I'm afraid, Mr. Ackerman. There are a number of these large cases which
9 are producing enormous problems. If these documents were not being
10 produced in English or French, I could understand the problem. But if
11 they are only being produced in English, you do have some internal
12 provision for translations. I'm not suggesting that's a satisfactory
13 answer, but there has to be a time where we get on with this trial, and if
14 papers do come in after it commences, well, that will be taken into
15 account and witnesses will be recalled, if necessary. But I don't think
16 that we can sit back and simply say we will wait until the pathetically
17 understaffed Translation Department produces every document that everybody
18 wants to see in every language.
19 MR. ACKERMAN: I absolutely agree that we can't sit and wait until
20 every document is produced. But there are some things that are crucial,
21 and witness statements are crucial. One of the -- maybe it's a
22 communication problem, Your Honour. I don't know.
23 JUDGE HUNT: How many witness statements have you not got
24 translated into B/C/S?
25 MR. ACKERMAN: I suspect the Prosecution has that number much more
1 accurately than I do. I'm guessing 25 or 30 maybe, but it could be more
2 or less.
3 When someone who does translations for me submits a bill for doing
4 translation, I get told that those should be submitted to the Translation
5 Department or the Registry and they are not going to pay somebody from my
6 staff to do them. And if I submit something to the Registry now, it will
7 be next summer before I see it.
8 JUDGE HUNT: I think something may have to be said to the Registry
9 about that. But I see the point you make.
10 Ms. Korner, have you got any idea of where this translation of the
11 statement is involved?
12 MS. KORNER: I'm sorry, I didn't catch that, where the
13 translation --
14 JUDGE HUNT: The translation of the statements. They are
16 MS. KORNER: Your Honour, I've been trying to find the figures. I
17 know that we have been, because of the translation problems, simply giving
18 statements in English, although they are in for translation. I can't give
19 Your Honour an exact figure today, I'm afraid.
20 JUDGE HUNT: I wonder if you can find out what it is, because --
21 MS. KORNER: I can.
22 JUDGE HUNT: -- I think the usual bureaucratic argument that it
23 should come out of one pocket rather than the another is, to say the
24 least, unimpressive so far as I'm concerned, and I don't care who pays for
25 it. It's just got to be done.
1 MS. KORNER: Your Honour, I'll see if I can make some inquiries
2 while the Status Conference is going on and try and get the figure.
3 JUDGE HUNT: If not, later on, because it will be necessary for me
4 to throw my considerable weight around downstairs, I'm afraid.
5 I think, Mr. De Roux, you were about to stand up.
6 MR. DE ROUX: [Interpretation] Yes, Your Honour. I think that in
7 this case, well, I'm very pleased to hear that the trial is to start on
8 the 14th of January. Personally, that is a perfect date for me. But by
9 that date, substantive questions which depend on the Prosecution have to
10 be settled in this case.
11 We have four successive versions of the indictment, and in the
12 last indictment or, rather, the latest version, the Prosecution is now
13 telling us that the responsibility of General Talic would be related to
14 the fact that he was collectively responsible for a criminal enterprise
15 and that the criminal enterprise was Republika Srpska for the simple
16 reason that, politically speaking, it is alleged to have carried out a
17 programme of ethnic cleansing, and that that would constitute genocide.
18 Therefore, we must discuss the reasons for the movement of populations.
19 That would be the central point of the trial; that is, to know whether
20 what is known as "ethnic cleansing" was a political, collectively-shared
21 resolve or whether the movement of the population could have had a
22 different cause.
23 Recently, we asked the Prosecution, because three Muslim generals
24 have been arrested, and one of them in the indictment, as we can see on
25 the internet, allegedly would have the same geographical responsibility as
1 General Talic, and therefore to some extent, that is, according to the
2 indictment, he would be his presumed opponent, and in that indictment we
3 observed many displaced persons of Serbian origin who were expelled from
4 Croatia. Therefore, we are asking the Prosecution to provide us with
5 certain information about the charges against the assumed opponent of
6 General Talic in order for us to know whether the population movements
7 could be the result of the war, that is, crimes which are ascribed to that
8 general. I respect the presumption of innocence, but this is a crucial
9 point in the trial because we're going to have to judge not only the
10 facts - and now we're talking about the indictment - we have to judge a
11 policy, with everything that that implies as a system of proof. We have
12 asked for that disclosure from the Prosecution, and the fact that the
13 trial date is not too far away, we would like for that disclosure to be
14 done very quickly and that, in the end, we would have a definitive
15 position in respect of the validity of the latest version of the
16 indictment, on the basis of which we have raised several questions.
17 That is what I wanted to say, and I can give the floor to my
18 colleague, Mr. Pitron.
19 JUDGE HUNT: I don't know if Mr. Pitron is going to add what you
20 said on that issue. But I may say this with respect to that issue: The
21 indictment is a public document, the indictment against the three Muslim
22 generals is a public document, and you'll see what the charges are. And
23 no doubt there will be some allegation of ethnic cleansing there. But we
24 are not going to be entertaining any issue in this case as to who was
25 responsible for starting the war or for continuing the war. We are only
1 concerned with this particular issue in this case. The fact that the
2 Croatians - I'm sorry - the Muslims may have ethnically cleansed the
3 Croatians or the Croatians may ethnically have cleansed the Serbians is,
4 so far as I can see, not a relevant issue. You cannot justify one crime
5 by saying that the other side committed the same crime against your
6 population. It is a matter which no doubt you will be interested in, and
7 there may be some relevance in it that you can find, but I'm not going to
8 delay the trial because you want to investigate the case against the three
9 Muslim generals. That's just not going to happen.
10 MR. De ROUX: [Interpretation] Your Honour, with all the respect I
11 owe you, that was not at all what I'm saying. The Defence in no way is
12 trying to justify one crime by another one. It's not about that. But the
13 crime which is described to us is, in it's very conceptions, an
14 intellectual one. It is a genocidal policy which allegedly brought about
15 circumstances which cause populations to be displaced. What is of
16 interest here is to establish the cause/effect relationship between a
17 genocidal policy, which has been presumed, and certain facts which took
18 place afterwards. And what we're saying is that these facts might have a
19 different cause, and we, the Defence, are interested in that causal
20 effect, cause/effect between the alleged policy and its result on the
21 ground that we've got to fully explore, and that's what the trial will
22 be. Because, of course, this is a historic trial. We are not the ones
23 who are putting it in those terms, but rather the indictment, which has
24 decided to put the trial on that level, and therefore we have to answer
25 the arguments put forward by the Prosecution.
1 JUDGE HUNT: But the fact, if it be the fact, that there was such
2 ethnic cleansing by either the Croats or the Muslims is a fact that has
3 been -- you have been aware of for a very long time. The fact that there
4 has now been an indictment brought against three Muslim generals doesn't
5 alter the existence of that situation, if it was a situation, and it
6 doesn't alter the relevance of that situation, if it has any relevance at
7 all. Certainly you have the right to investigate those things, but we are
8 not - and I repeat, not - going to delay the commencement of this trial so
9 that there can be examination of some other trial which will have only
10 just begun to get underway, unless you want your clients to remain in
11 custody for another two years or so whilst you do it. Now, that is the
12 fact of the case. We have to get on with this case, and it will have to
13 be something of extreme importance for it to be delayed.
14 Now, Mr. Pitron, you wanted to add something.
15 MR. PITRON: [Interpretation] Yes, Your Honour. I agree with what
16 Mr. Ackerman said about the translation problems, which are extremely
17 problematical in this case, since our client does not have access to
18 certain of the determining documents in respect of the crimes he is
19 alleged to have committed.
20 But I would like to emphasise another point which I personally
21 find extremely distressing, and I would see a great deal of anguish, in
22 fact, for having a trial in January. I would like to speak about
23 disclosure of documents by the Prosecution. I would like to draw your
24 attention, Your Honour, to the fact that during the last hearing on the
25 18th of May, the Prosecutor committed herself to submitting all the
1 testimony which had not yet been disclosed by the 20th of June, and all of
2 the documents, at the very latest, in the middle of August. Since the
3 20th of January, we received - of June, rather - we received the names of
4 34 witnesses. We received several statements from each of those
5 witnesses, plus statements of former witnesses, since the 20th of June.
6 Therefore, it means that we've received about 60 statements, and you would
7 remember that many of them were not translated into Serbo-Croat, let alone
9 As regards these documents, since the middle of August, and only
10 since the middle of August, we have received 22 binders of documents,
11 several videos. Since -- if I'm speaking only from the time after the
12 18th of May, we received about 60.000 documents. And Madam Prosecutor is
13 telling us that there are many new documents this morning. When we
14 arrived at the Tribunal, we were told that we would get further news about
15 this next week.
16 Of course, it is clear that under such circumstances, and even
17 aside from the translation problems, and despite our very strong resolve
18 to see the trial begin, we are not in a physical position to go through
19 all of those documents. And I would not like to just facilely put the
20 blame on this or that department, translation or photocopying. Because if
21 I refer to the dates of the testimony - both were given to me - I realise
22 that out of the approximately 60 statements that I've mentioned, only 5
23 were obtained in the year 2001. This means that the overwhelming majority
24 of them have been in the hands of the Prosecutor ever since -- quite a few
25 months, if not years. And if I don't have them to date, it's not because
1 of me and only because -- but rather only hers.
2 So once again I repeat: We are very desirous to have this case
3 move forward. We are very desirous to see the trial. But first and
4 foremost, we want to have a trial which is equitable. Today, and for next
5 January, I do not see how that trial can be equitable, unless, of course,
6 Your Honour, as my colleague has just mentioned, unless you have the -- we
7 want to set aside those documents which were transmitted with delay and do
8 not have to be cross-examined.
9 JUDGE HUNT: Ms. Korner, you did promise everything by the end of
10 July or mid-August. Have you complied with Rule 68, at least in relation
11 to exculpatory material?
12 MS. KORNER: Your Honour, we have complied with both Rule 66 and
13 Rule 68 of all the material that we are presently aware of. Rule 68 is an
14 ongoing obligation, and the point that I have to make, and I think has
15 been made in other cases, is this: that material is still constantly
16 arriving in this institution. For example --
17 JUDGE HUNT: I think we all understand that, and we understand
18 that the Prosecution is not placed in a very easy position when
19 governments for the first time commenced to cooperate and they produced
20 documents. But what I am concerned about is these thousands of documents
21 that you have had since some time early last year. Now, have you
22 disclosed the Rule 68 exculpatory material in a language which the accused
24 MS. KORNER: The answer to that is: largely, yes, because most of
25 the material is in fact in the Serbian language.
1 JUDGE HUNT: Right. Now, have you --
2 MS. KORNER: But --
3 JUDGE HUNT: Have you disclosed it in a language which counsel
5 MS. KORNER: Not always, because the translation difficulties are
6 enormous. We have offered to provide summaries. I think I mentioned that
7 to Your Honour last time. That's been declined by both counsel because
8 they have on their teams people who read and speak the language.
9 Your Honour, can I say that the Rule, of course, doesn't require
10 us to provide the Rule 68 material in a language which the accused
11 understands, only the material on which we intend to rely. It obliges us
12 to notify the Defence of the existence of Rule 68 material.
13 JUDGE HUNT: So that if something turns up in Arabic, which I
14 should imagine nobody here understands, you would say you complied with it
15 by producing the document?
16 MS. KORNER: We would try and get it translated, because that's to
17 everybody's benefit, but in actual fact, that is right. The Rule in
18 itself doesn't say it has to be translated.
19 JUDGE HUNT: But nevertheless, for the purposes of the trial, it
20 has to be translated. Now, I can see that you do have problems with
21 translations. We all do. It took three weeks to get a 22-page draft
22 translated last month. But it is something which the trial cannot proceed
23 unless there is knowledge of the exculpatory material. Now, whatever the
24 Rule might say, they have to have knowledge of it, and they're not going
25 to have knowledge of it if it's in a language which nobody understands.
1 MS. KORNER: Can I assure Your Honour that there's no documents
2 that we've disclosed in any other language at the moment -- I mean, if I
3 say these sort of things, I always get caught out by saying them, but to
4 the best of my knowledge and belief, they are either in English or in the
5 Serbian language. They are not in Arabic, German, or any of the other
6 languages of the --
7 JUDGE HUNT: But if you recall, Mr. Pitron on the last occasion
8 said that it had been provided to him in Cyrillic script, and what's more,
9 on a CD.
10 MS. KORNER: That is right, but --
11 JUDGE HUNT: Can I just interrupt for a moment?
12 MS. KORNER: Certainly.
13 JUDGE HUNT: The fact is, you might be able to say yes, certainly
14 his client should be able to read it, but his client does not have access
15 to a PC upon which these CDs can be played. So it's not really assisting
16 anybody for it just to come in a CD.
17 MS. KORNER: Your Honour, as far as we understand the matter, the
18 client will have given instructions, from my own personal experience in
19 Defence cases, and acting on those instructions, the lawyers, those who
20 read the Serbian language or the Bosnian language, will be able to assess
21 whether or not the material is, in fact, of relevance to them. Your
22 Honour, I appreciate, as everybody else does, this is not the most
23 desirable way of proceeding, but unfortunately at the moment it's the only
24 method we have of making sure that the material which could be Rule 68
25 gets to the Defence.
1 JUDGE HUNT: In relation to the statements, you're going to find
2 out how many have not been interpreted. Have you got other statements
3 that are sitting around? You had talked about a whole number of them on
4 the last occasion. You've now nominated, under the sixth motion for
5 protective motions, two further witnesses. Are those the only additional
6 ones that you're going to rely upon?
7 MS. KORNER: Your Honour, there are still outstanding two types of
8 witnesses, if I may put it that way, and may I emphasise, they really are
9 a tiny amount. The bulk of the case, with witnesses and documents, has
10 now been disclosed. Firstly, witnesses from international humanitarian
11 organisations. We have been in negotiation with those organisations for
12 some months now about whether or not certain witnesses may testify. Those
13 negotiations have not been resolved. It involves three witnesses.
14 JUDGE HUNT: If they're from the Red Cross, I can tell you what
15 the answer is now. It's no.
16 MS. KORNER: We know that. They're not. The other aspect, which
17 is this: that certain witnesses who we had originally intended would
18 testify for various reasons are no longer now going to be testifying and
19 we have to replace them. In addition to that, we've also ascertained that
20 in one or two cases where we had made allegations specifically about
21 certain incidents, the evidence in itself is hearsay. Although that's
22 admissible, it is preferable that we have direct testimony.
23 JUDGE HUNT: When do you expect to have all of those statements?
24 MS. KORNER: September. There is an enterprise going out
25 mid-September. But I can say, this is a very small amount and does
12 Blank page inserted to ensure pagination corresponds between the French
13 and the English transcripts.
1 not -- may I add, in relation to those that I've just said, they will not
2 be testimony directly implicating the accused, as I understand it.
3 JUDGE HUNT: Is it going to be material which is going to be in
4 the right language, to start with? Is it available in all three
6 MS. KORNER: From the humanitarian organisations, no. The
7 statements are in English. I say "the statements." The proposed signed
8 statements. I'm going to make inquiries because of this problem as to
9 whether or not we cannot, for new statements, take them in two languages.
10 JUDGE HUNT: Let me put it to you very baldly, Ms. Korner. If
11 this case does not start in January, it will not start before the middle
12 of next year, and that would be tragic.
13 MS. KORNER: I agree.
14 JUDGE HUNT: So that it is not a matter of sitting back and saying
15 the Translation Department is not being of any assistance. We all know
16 it's not being of any assistance. It is, as I think I said, pathetically
17 understaffed for what it has to do. But there are other ways of it being
18 done. And again, it may be an argument out of which pocket it is paid.
19 But this trial has to be ready to go January or it doesn't go until about
20 July or September. Something else will take its place. And it would be
21 appallingly wrong, with these two men having been in custody for so long,
22 for that to happen. Now, if it means that the Prosecution has to pay out
23 the sum of the translation, it had better start thinking about it.
24 MS. KORNER: Your Honour, I am entirely, as is the whole of the
25 Office of the Prosecutor, of Your Honour's mind. This trial must start.
1 These men have been in custody for two years. It's not a question of
2 resources. As I understand it, and I have every sympathy for the persons
3 who run the Translation Unit, it's that they simply can't get the
4 qualified interpreters. We're willing to pay, we would pay, but these
5 documents, some of which are sensitive, can't be sent out externally, and
6 I understand the problem is they simply cannot find the qualified staff.
7 JUDGE HUNT: Yes, very well. Mr. Pitron.
8 MR. PITRON: [Interpretation] Yes, Your Honour.
9 JUDGE HUNT: You needn't do that. You --
10 MR. PITRON: [Interpretation] I'm impatient, I'm impatient to
11 defend my case.
12 I have heard that we're going to receive new testimony. I've
13 heard that some of the testimony would not be in Serbo-Croat and that we
14 would have translation problems. I've also heard that we're trying to
15 look at an interpretation of Rule 68 of the Rules of Procedure and
16 Evidence to see if I'm correct that once the Prosecutor has disclosed the
17 documents, counsel for the accused must sort through them to see what is
18 exculpatory and what is not.
19 What is important, in fact the only thing which is really
20 important, is that the trial should take place under fair conditions. One
21 must not forget that in this case, for almost two years or, rather, more
22 two years, we've got several hundred thousand documents, and if the
23 Prosecutor does not satisfy her obligations, which are extremely clear in
24 respect of Rule 68, that is, to tell us what are those elements which are,
25 in fact, exculpatory, we are not able, in the amount of time we're given,
1 to find them alone. I say that very openly, and I believe that is the
2 reason that the Rule was established, to allow the trial and to allow the
3 Defence to accelerate its work and to do its work properly.
4 So I ask the Prosecutor not to settle the problems which are not
5 its problems, that is, translation or photocopying problems. I'm asking
6 her to fulfil her obligation, which is a legal one, and that is to say, to
7 say very, very soon which among the hundreds of thousands of documents
8 given to me - I won't go back, Your Honour, to all the little details that
9 happened in Banja Luka in 1993 - but to tell us among those documents she
10 gives us, which are the ones which are exculpatory for our client.
11 Otherwise, I will not be in a position to conduct the Defence properly,
12 and I can tell you that right now.
13 JUDGE HUNT: But, Mr. Pitron, I think you place a little bit too
14 much weight upon Rule 68. Rule 68 is designed to ensure that what may
15 tend to suggest, or which may affect the credibility of the witnesses, may
16 tend to suggest innocence or it may affect the credibility of the
17 Prosecution evidence. It is very difficult for the Prosecution to know
18 what may affect the innocence or mitigate the guilt of the accused because
19 it has no notice from you as to the nature of the Defence case. So it has
20 to err considerably on the side of caution, and it produces everything
21 which could possibly be thought to be exculpatory. It can't say to you,
22 "This document is exculpatory because it does this or does that." It
23 produces these documents and it says, "Look, we don't know what your case
24 is, but have a look at these. You may find something in them which will
25 be exculpatory."
1 But if your point is this: that the Prosecution should perhaps
2 tell you which of the thousands it has given to you have been given to you
3 pursuant to Rule 68 rather than Rule 66, that's a different matter and
4 I'll hear what Ms. Korner may want to say about that. But you can't
5 expect the Prosecution to know how something may be exculpatory, or why it
6 is exculpatory, or that it raises some particular issue that you can take
7 advantage of. They can only do their best by saying, "Look, here is
8 something which is relevant to the case. It may be exculpatory." I think
9 we've got to look at it realistically. I will ask, however, Ms. Korner
10 whether they are able to nominate by some reference the documents which
11 they have put forward as perhaps falling within Rule 68 rather than Rule
12 66. Are you able to do that, Ms. Korner?
13 MS. KORNER: Well, Your Honour, the difficulty is this: that some
14 documents are a mixture.
15 JUDGE HUNT: That may be so, but let's just face up to
16 Mr. Pitron's complaint, which he has aired before, and that's that all
17 this material comes in, it's material which you are sometimes giving him
18 because it is part of the Prosecution case, sometimes because it's
19 material that has been seized in Banja Luka, and sometimes because it may
20 come under Rule 68. Somebody there must have some idea why those
21 documents were sent. Now, we're not going to ask you to identify the
22 basis upon which you say it could be exculpatory, but it just will help, I
23 think, because of the shortening time we have, if somebody there could
24 identify by some reference. They must have made some decision at the time
25 they were disclosed.
1 MS. KORNER: Your Honour, we can, I mean in the sense that
2 although it will take some time because we'll have to go back through all
3 the disclosures. We can probably identify most of what we disclosed as,
4 in our view, possibly exculpatory.
5 JUDGE HUNT: Could that be done on a rolling basis so that each of
6 the defendants have got some idea so they can start looking particularly
7 at those documents?
8 MS. KORNER: I think all we can do, Your Honour, is go back
9 through each of the disclosures, because they have been separated into
10 batches, and indicate on each of the disclosures.
11 JUDGE HUNT: But what I don't want to happen is that we wait until
12 you find the time to go through everything and then disclose this list.
13 What I'm suggesting is that when somebody has got through one bundle of
14 documents, that list is then sent off to the defendants.
15 MS. KORNER: Yes, we can do that.
16 Can I just say, taking Your Honour's point, as Your Honour will
17 recall, some considerable time ago we wrote to the Defence, asking for
18 them to indicate what they were interested in, and they declined to do so.
19 JUDGE HUNT: I know. They are entitled to do that, and that's why
20 I've pointed out the difficulty that that raises for the Prosecution.
21 I know that you emphasised your experience as a Defence counsel,
22 but I can assure you I've had some experience with that myself.
23 Yes, Mr. Ackerman.
24 MR. ACKERMAN: I raise this because I may find out after the
25 hearing that I should have. I didn't hear from Joanna Korner something
1 that I thought I might hear from her.
2 They have, I know, conducted interviews of witness in Banja Luka
3 within the last 30 days, 30 to 45 days, at least 30 -- somewhere between
4 30 and 35 witnesses. I didn't hear anything from her about getting those
5 statements and that those statements would be delivered or any such
6 thing. I think whatever statements were taken from those witnesses in
7 Banja Luka with regard to this matter are either statements of witnesses
8 that the Prosecution will bring here or statements that would fall under
9 Rule 68 and be exculpatory, and I'd just like to know. And I may be
10 wasting the Court's time by raising this right now, but I would rather
11 have it raised now than find out after the hearing that I should have and
12 have to wait two or three months to do it.
13 JUDGE HUNT: That, if I may say so, is an extraordinary large leap
14 in logic that you put forward there. They may be asking questions of
15 somebody who they had suggested to them may be able to help them, and he
16 will say, "I spent the whole of that year in the southern hemisphere." Do
17 you suggest that that is either under 66 or 68?
18 MR. ACKERMAN: No.
19 JUDGE HUNT: No, no, but look, let's be realistic. You are, if I
20 may say so, being a little masochistic about this. What you're trying to
21 do is pull upon your head a huge bundle of paper that may turn out to be
22 totally irrelevant. Let us worry, from the Prosecution's point of view,
23 that they understand their obligation, as I think they do; that if they
24 are going to rely upon it under 66, they've got to give it to you; if it
25 turns out to be exculpatory, they'll give it to you under Rule 68. But
1 don't start asking for all that material to be provided to you. I thought
2 you might have learnt your lesson when you asked for all that material
3 which was seised in Banja Luka, which has caused more trouble than what it
4 has been worth.
5 MR. ACKERMAN: Judge, you have misunderstood me and I did learn my
6 lesson. I'm not asking that they give to me every piece of paper that
7 they gathered up during their time in Banja Luka. But I'm not speaking to
8 you without some knowledge of what went on during some of those
9 interviews, because we have spoken to some of those people. And so I know
10 that statements were taken from people, and, you know, maybe they only
11 took ten statements. I don't know. But all I'm asking for is things that
12 are relevant to this case that are either 68 or they are going to use as
13 evidence in the case, they are going to call as witnesses. If they are
14 going to now tell us, a month from now, that they have these new
15 statements they want to give us, I'd rather know now that they are working
16 on them and that's something we can also look forward to.
17 Ms. Korner told us today that there are just a few more
18 international organisation types and stuff like that, and I'm bewildered
19 by that because I know of these interviews that went on in Banja Luka of
20 recent time, and I know that those are witnesses who are presumably
21 relevant to the serious issues in this case.
22 JUDGE HUNT: Let's be clear also about this. If the Prosecution
23 gives you statements too late for you to be able to investigate them
24 properly and which would interfere with the proper processes of the trial,
25 then the Prosecution will not be permitted to rely upon them. If they
1 produce material under 68 in the same circumstances, then there will have
2 to be a very long adjournment whilst it's all sorted out.
3 But whilst I -- having spent 19 years as a judge in a court where
4 you could have these things properly organised, I still haven't got over
5 the frustrations that we suffer in this Tribunal because of the
6 difficulties under which everybody has to proceed. But to keep this trial
7 waiting and these two men in custody whilst every little "i" is dotted and
8 every "t" is crossed is, I think, an injustice to everybody, to the
9 accused primarily and to the victims. And it would be absurd to say that
10 these trials usually do proceed without little bits and pieces having to
11 be sorted out during the trial. There may be somebody who comes along a
12 month after the trial commences and says to the Prosecution, "I can help
13 you about that." In those circumstances, provided the Defence is given
14 the opportunity to investigate that before that witness is called, and has
15 the right to have witnesses recalled to cross-examine them on other
16 matters that come up, the trial can proceed. It's not perfect.
17 Right back in the first case in Tadic, there were a number of
18 statements by the Tribunal which have only so truly come to pass. These
19 trials cannot produce perfect justice, but we have to produce as best
20 justice as we can, subject to the rights of the accused being protected.
21 Now, "protected" is a very important word. If there is going to be
22 hitches during the course of the trial because of these and if the
23 accused's rights can't be protected by adjournments, et cetera, then there
24 will be trouble. But it would be absurd to delay the commencement of this
25 trial until every little thing is followed up, because there will be
2 A trial of this length is not going to be continuous. There will
3 have to be time taken off during the course of it to follow up incidents,
4 to go and talk to witnesses. Every trial I've had so far has proceeded
5 upon that basis, usually roughly three to four weeks and then a week off,
6 so that everybody can catch up and carry out their investigations. It's
7 not like a jury trial where you've got a jury sitting around waiting and
8 everybody is prejudiced by delays of that type.
9 So let's look at it from a realistic point of view. Let's get the
10 trial on, if we possibly can, because what I said to Ms. Korner is true.
11 If you lose your spot in the list, as it were, you will have to wait until
12 some other trial finishes. And what I have seen of the proposed timetable
13 for next year, everything that is starting at the beginning of the year
14 either goes for one, two, or three years, and there's one that's expected
15 to go for six months. So you are in a very difficult situation if you
16 lose your spot in January.
17 MR. ACKERMAN: Your Honour --
18 JUDGE HUNT: And I should add: And that is with six trials
19 running simultaneously.
20 MR. ACKERMAN: I'm somehow failing to communicate with you this
21 morning, and it must be my fault. I don't want this trial delayed another
22 minute. I want this trial to start on January 14th. I have a lot at
23 stake in having this trial start on January 14th, so please don't hear me
24 saying I'm trying to delay this trial. I'm not.
25 If they have material from statements they took within the last 30
1 days in Banja Luka, that needs to be turned over to us. I'd like to know
2 when they plan to do that so I can just put that into my planning. If
3 they don't have anything, fine, then I don't care.
4 JUDGE HUNT: I must say a status conference does produce some
5 dialogue between the parties, but I really don't want to be used as some
6 sort of a post box. I think that you can talk to Ms. Korner about that.
7 If there's some problem, you can get the Status Conference relisted. But
8 I really do not want Ms. Korner to say, "Well, I'll have to make
9 inquiries," which it is only reasonable for her to do so, and then we'll
10 deal with it later on. Let's get on with what we have to deal with.
11 There are a lot of issues here which we have to deal with before this
12 Status Conference finishes.
13 MR. ACKERMAN: I'm finished, then. Thank you.
14 MS. KORNER: Your Honour, may I deal with it? I would have dealt
15 with it at a different stage. Mr. Ackerman has raised it.
16 Mr. Ackerman is aware, because it received a great deal of
17 publicity, that an interviewing team went to Banja Luka with Prosecutor's
18 summonses. These people who are interviewed are people who are intimately
19 connected with the events in 1992 who have not been charged. No
20 statements were taken. They were interviewed, and the interviews are at
21 present being transcribed. If, at the end of those transcriptions -
22 because a number of people did it so it's impossible to assess them -
23 there is material which we consider to be Rule 68 material, then we will
24 decide which of two courses to adopt. Of course, one is to notify the
25 Defence of the names and addresses of these witnesses, but it appears
1 quite clearly that Mr. Ackerman has already spoken - I'm sorry, I say
2 "witnesses" of these people, they are not witnesses at present - is aware
3 of who they are. Alternatively, and it depends very much on how we see
4 things, supply them with copies of the transcripts, but they haven't been
6 JUDGE HUNT: Just a moment, Ms. Korner. You have people within
7 the Prosecution's Investigation service who have spoken to these people?
8 MS. KORNER: Yes.
9 JUDGE HUNT: And they know what they've said?
10 MS. KORNER: Yes.
11 JUDGE HUNT: And you say there may be things that they've said
12 which may amount to Rule 68 material?
13 MS. KORNER: Yes.
14 JUDGE HUNT: Well, why don't you notify the Defence of that now in
15 some sort of written form and give them the statements later?
16 MS. KORNER: They are not statements, they are interviews.
17 JUDGE HUNT: Or interviews later.
18 MS. KORNER: What we can certainly do is provide the Defence with
19 a list of the people that --
20 JUDGE HUNT: No, no, not really. Come on, let's get to the point
21 of it. Why can't you tell them what the material was which may be Rule 68
23 MS. KORNER: Because these interviews went on for a long time, and
24 it is very difficult to pick out from them whether they are Rule 68.
25 JUDGE HUNT: Look. You said you had a number of investigators.
1 You can ask each investigator, "Was there any Rule 68 material which could
2 be Rule 68 material raised? Have you got any recollection of it?" Write
3 it down and notify them and say you will produce the statements later. We
4 cannot wait whilst you have interviews typed up, checked, translated and
5 everything. Let's get on with the real obligation, which is to notify
6 them of the material or the existence of it.
7 MS. KORNER: Yes, the existence of it is these people have been
8 interviewed, Your Honour. These people are known to the Defence, and
9 most -- I think on the balance one could say most of them, in some form or
10 another, are helpful to the Defence. These are people who were involved
11 in the events. So, Your Honour, the Defence, to a certain knowledge in
12 one case, have already interviewed these people.
13 JUDGE HUNT: That's not an answer to your obligation under Rule
15 MS. KORNER: It's to notify the existence of Rule 68 material.
16 JUDGE HUNT: That's right. Well, you know of the Rule 68
17 material, you have to notify them.
18 MS. KORNER: Yes.
19 JUDGE HUNT: I agree that it would be better to have it done in
20 the statements or the interviews when they've been concluded. But this is
21 the very sort of attitude, Ms. Korner, about which I have complained so
22 often. I know that the Prosecution has taken the view that it will not
23 cooperate in this case. You've made that abundantly clear. But this is
24 an obligation under the Rule, and I think that we are entitled to say,
25 "You must do something better than you're doing and you must do it
12 Blank page inserted to ensure pagination corresponds between the French
13 and the English transcripts.
1 because if you want this trial to start in January, you've got to do it
3 MS. KORNER: Your Honour, I do not know why Your Honour says we
4 are not cooperating, and I'd be grateful --
5 JUDGE HUNT: I'll tell you, if you like, in great detail. Not
6 now; we've got more important things to argue about. But you have set
7 out, so far as I can see, to ensure that you do just precisely the basic
8 minimum of everything that you have to do and that you feel you are
9 entitled, for example in this case, to wait until you have something in
10 writing when you have this information from your investigators and you
11 know that this trial has to get under way in January, and you are saying,
12 "Well, we'll do it when we've got everything possibly lined up."
13 Now, I think that the Trial Chamber is entitled to better than
15 MS. KORNER: Your Honour, in that case, having heard Your Honour
16 on this, we will notify the Defence of the areas which appear to us from
17 these interviews to be of Rule 68 material.
18 JUDGE HUNT: I don't know what "areas" means.It's what I would call
19 a weasel word. It means what you want it to mean at any particular
20 time. It really doesn't, so far as I can see, comply with Rule 68.
21 MS. KORNER: Your Honour, that's why -- sorry. That's why I
22 said: Until we have the transcripts, we really can do no more than
23 indicate that.
24 JUDGE HUNT: Well, Ms. Korner, you've heard what I said. I don't
25 accept that. I expect you to do better than that, to indicate the subject
1 matter of the material, the nature of it, even if you haven't got the
2 precise wording of it. It's your obligation to do it. And whilst if we
3 had another year to wait before the trial started, it would be perfectly
4 appropriate to wait until you've got transcripts, but this is far more
5 urgent than that and you've just got to cooperate by helping do more than
6 you basically feel you have to do. Now, that's, I think, the obligation
7 that we are entitled to insist of both sides, but particularly the
8 Prosecution, in relation to this material.
9 Yes, Mr. de Roux.
10 MR. ACKERMAN: Your Honour, may I just quickly make sure the
11 record reflects some accuracy. We have not talked about a very small
12 number of the people that --
13 JUDGE HUNT: Yes, all right. We're not going to hold parties to
14 statements made which are not answered.
15 Now, Mr. de Roux.
16 MR. De ROUX: [Interpretation] Mr. President, I would like to say
17 something very simple, because the trial really has to begin, and for it
18 to be take place, for it to be held, there has to be a minimum of
19 investigation of both sides. We've got to hear both sides. This is the
20 minimum that we can expect. In order for that to happen, the only thing
21 that we're asking for - it's not very complicated - is that the
22 Prosecution disclose to us what is has now and which it decides it's going
23 to rely on in the trial, what it knows now, whether it's exculpatory or
24 not, under Rule 68. Because, as I said, we have received statements which
25 could have been given to us more than a year ago, because some of the
1 statements were attached to the request for confirmation of the first
2 indictment, and there is no reason that these documents be sent to us at
3 the very last minute. And what I would like is that the Tribunal, since
4 the date that the Tribunal set, I'd like it to set a clear date, after
5 which, subject to anything that might happen during the trial, of course,
6 that a clear date be set which would allow the Defence to work tranquilly,
7 with enough time, without again receiving information from the Prosecution
8 at the very last moment. In a trial of this importance - we have more
9 than 200.000 documents, I don't know how many witnesses - it would seem
10 natural to me for there to be time for the Defence to prepare tranquilly
11 and carefully, and as a result of that, the documents or the statements
12 which are disclosed after that date should no longer be admitted.
13 JUDGE HUNT: I think that would have to depend upon the
14 circumstances of the particular document, Mr. de Roux. I've already
15 expressed my view about what may happen during the course of the trial.
16 We all regret that we work under circumstances that the trials cannot be
17 perfect. I'm glad to say that I will not be going back to my previous
18 job, because I would be rather horrified at having to be precisely ready
19 for a trial again. But nevertheless, we have to face reality, and I'm not
20 going to make an order in those terms.
21 Now, what led into this general discussion was an issue about the
22 disclosure of the witnesses' names that have so far had their identity not
23 disclosed. There are 10 of them. I had proposed to set a date for that
24 disclosure, but of course I have to be satisfied that this trial is going
25 to proceed on the date that I have nominated, and I get the very
1 uncomfortable feeling that there is, perhaps for reasons that have not
2 been disclosed, ground being laid for avoiding that date by one side or
3 the other. So I'll leave that question for the moment.
4 The current matter that we're looking at is the form of the most
5 recent indictment. And Ms. Korner, let me just explain to you why I
6 really feel that what I suggested before about lack of cooperation is
7 borne out. The Prosecution was ordered, and I'm reading from the previous
8 decision, to identify with some precision in its indictment the basis or
9 bases upon which it seeks to make Momir Talic criminally responsible as a
10 member of the Crisis Staff of the autonomous region of Krajina. According
11 to the document which was attached to the indictment when it was filed,
12 that obligation has been complied with by reason of paragraph 20.1 of the
13 current indictment, and I'll read it to you, and I'll try not to make fun
14 of it as I go along:
15 "As commander of the 1st Krajina Corps, General Momir Talic's
16 membership of the ARK Crisis Staff and its implementation of its decisions
17 aided and abetted the fulfilment of its policies."
18 As a piece of English, it's appalling, and it seems, if I may say
19 so, to be deliberately a failure to comply with the word "precision," to
20 start with, and it has so many ambiguities in it that it is simply not
21 acceptable. And I can only assume, after the very careful wording of the
22 order, that that paragraph of this current indictment was deliberately
23 vague. What does it mean?
24 MS. KORNER: Your Honour, it means exactly --
25 JUDGE HUNT: Your microphone, please.
1 MS. KORNER: I'm sorry. Your Honour, it means exactly what it
3 JUDGE HUNT: It doesn't mean anything to me, and I have been
4 speaking the English language for 60-something years, and I think I'm
5 reasonably adequate in my understanding of the English language.
6 MS. KORNER: Your Honour, we've had these discussions on a number
7 of occasions before. I am afraid to say that I do not understand how much
8 more detail Your Honour requires for an indictment that does not trespass
9 into the case of evidence. For example, is it required of us to state in
10 the indictment that when Momir Talic did not attend, he sent a
11 representative of his staff? Because in my respectful and humble
12 submission, that is a question of evidence.
13 JUDGE HUNT: Well, you will remember, Ms. Korner, that in the
14 order, we said that if it was intended to assert that he participated in
15 making those decisions, you had to allege that as a material fact, and you
16 haven't done so. So that we may assume from that that you can't prove
18 MS. KORNER: Your Honour, what we say we can prove is that he was
19 appointed a member of the Crisis Staff; that he attended some meetings;
20 that if not present, others were sent from his staff. But that, we would
21 submit, is a question of evidence.
22 JUDGE HUNT: No, it's not. It's certainly not, and we made it
23 abundantly clear in that decision that it would not be.
24 MS. KORNER: As I say, Your Honour, it appears that I have some
25 difficulty - it's obviously my fault - in complying with what -- the
1 amount of detail that Your Honour requires --
2 JUDGE HUNT: What the accused is entitled to know - and not only
3 the accused but the Trial Chamber is entitled to know - is the nature of
4 the case he has to meet. Now, let me ask you: Is the initial clause, "as
5 commander of the 1st Krajina Corps," intended to govern both of the
6 statements which follow it, both his membership of the ARK Crisis Staff
7 and his implementation of its decisions?
8 MS. KORNER: Yes.
9 JUDGE HUNT: So it's only if he has implemented them as the
10 commander of the 1st Krajina Corps; is that so?
11 MS. KORNER: Your Honour, he --
12 JUDGE HUNT: Now, you say this is so clear. You should know the
13 answer to that. Because if you are going to suggest that he implemented
14 its decisions otherwise than as commander, it hasn't said that. It may be
15 ambiguous, but it's its very ambiguity which demonstrates its lack of
17 MS. KORNER: I'm not sure what Your Honour wants me to say.
18 JUDGE HUNT: I want you to say -- are you going to suggest that he
19 implemented its decisions otherwise than as commander of the 1st Krajina
21 MS. KORNER: The decisions that were taken by the ARK Crisis Staff
22 which involved the military were implemented by him.
23 JUDGE HUNT: Did he implement any of its decisions otherwise than
24 as commander of the 1st Krajina Corps? That was my question and that is
25 what is not clear from that paragraph.
1 MS. KORNER: The case, we say, is that he implemented the military
2 aspect of its decisions.
3 JUDGE HUNT: Did he implement any of its decisions otherwise than
4 as the commander of the 1st Krajina Corps? Now, that can be answered yes
5 or no.
6 MS. KORNER: I hear what Your Honour says, but it isn't quite as
7 simple as that, because it depends what you mean by "implementation of the
8 decisions." I mean, as I say, this is a question of evidence.
9 JUDGE HUNT: It's not a question of evidence. It's a question of
10 knowing the nature of the case which the Defence has to meet and to ask
11 you or to order you to identify with some precision in the indictment the
12 basis or the bases upon which you seek to make him criminally responsible
13 as a member of the ARK Crisis Committee. It has not been complied with.
14 At the moment, it seems to say only that he did carry out its decisions in
15 his capacity as the commander of the 1st Krajina Corps, and you are
16 relying upon his mere membership of the ARK Crisis Committee. And that's
17 all it says to me, and that is not an answer to what we said.
18 MS. KORNER: No, Your Honour, that is not what it reads. The fact
19 of the matter is, our case will be that in order for the regional Crisis
20 Staff in the autonomous region of Krajina to have the full authority, it
21 required to have on its committee, as it were - one put it that way - on
22 the Crisis Staff, the man in command of the armed forces for that area,
23 and that by joining the ARK Crisis Staff, Talic lent his authority to that
24 of the Crisis Staff as a whole.
25 JUDGE HUNT: Even though he may, I don't know, have been put on it
1 simply because he was the commander of the 1st Krajina Corps and did
2 nothing more.
3 MS. KORNER: It may well be so, but what he didn't do, of course,
4 was remove himself from it or not attend -- although, can I say this, Your
5 Honour? As I say, this is a matter of evidence. There is some evidence
6 that he was reluctant to attend the meetings.
7 JUDGE HUNT: Well, look, Ms. Korner, you are and I will never
8 agree about what is a material fact and what is evidence, but let me
9 assure you that I regard it as a material fact to know the nature of the
10 case that General Talic has to meet, and this does not disclose it unless
11 we know more. Am I right, then, in saying that you are relying solely
12 upon his membership of it and the fact that he didn't get off it?
13 MS. KORNER: We rely on his membership to add weight to it, but
14 then assisting in carrying out the decisions which required military
16 JUDGE HUNT: Well, then, I interpret what you say as the way in
17 which I put it a moment ago. You rely upon his mere membership of the ARK
18 Crisis Committee and the fact that as commander of the 1st Krajina Corps,
19 he carried out its decisions.
20 MS. KORNER: Yes. It's the word "mere," Your Honour, that I'm
21 troubled by.
22 JUDGE HUNT: Of course you are, because it sounds so absurd,
23 doesn't it? But that is your case.
24 MS. KORNER: No. Yes, I mean.
25 JUDGE HUNT: Well, if it's not, I still don't understand what your
1 case is.
2 MS. KORNER: Your Honour, it's not mere membership. Membership of
3 this particular governmental body gave it -- it was because it contained
4 all the leading, as it were, figures from all walks of life, gave it the
5 authority to have its decisions carried out.
6 JUDGE HUNT: Right. Well, now --
7 MS. KORNER: So it's not mere membership. It's the word "mere,"
8 Your Honour.
9 JUDGE HUNT: So it's on that basis that you seek to make General
10 Talic responsible for the actions taken by others - I mean others than the
11 1st Krajina Corps - in obedience to the decisions of the ARK Crisis Staff.
12 MS. KORNER: Yes.
13 JUDGE HUNT: It's that alone - I'll forget the word "mere" - it's
14 that alone that he allowed his name to be used to give weight to its
16 MS. KORNER: Yes.
17 JUDGE HUNT: And that is the Prosecution case?
18 MS. KORNER: Allowed his name to be used to give weight to the
19 decisions which were then carried out, and therefore allied himself with
20 those decisions.
21 JUDGE HUNT: Well, you mean passively allowed his name to be
22 used - or his position on the ARK Crisis Staff - he allowed his name to be
23 used to give it weight so that the actions taken by those other than the
24 1st Krajina Corps are his responsibility for that reason alone.
25 MS. KORNER: Your Honour, he takes part -- I think Your Honour
1 used this simile or analogy some time ago. He takes part in a joint
2 enterprise, subject to him having the required intent to play his part in
3 that enterprise. His main part, we accept, of course, was the military.
4 But the whole point about the governmental side of the cases in Bosnia is
5 they were carrying out an agreed policy, and the regional Crisis Staff was
6 one level before below the republic level.
7 JUDGE HUNT: But you see, this is the point of the objection that
8 was taken to your indictment, that it's not just the 1st -- you're not
9 relying upon the actions of the 1st Krajina Corps alone; you are relying
10 upon the actions of a whole batch of people that you've called generally
11 the Bosnian Serb forces, for whose actions it is difficult to see General
12 Talic's responsibility unless it goes back to the ARK Crisis Staff, and
13 it's a very large part of the Prosecution case. That's why this is so
14 vital, and this is why I can only say your response to the order that was
15 made was totally inadequate. And it was so inadequate that, I'm sorry, I
16 still draw the inference that it was done deliberately so that you could
17 manoeuvre your way through at trial whatever happens at it. That's just
18 not good enough. Anyway, I'll take a note of what you've said, and I'll
19 put it in the decision.
20 Now, the next one. You were required to identify those of the
21 crimes that had been charged that fell within the common purpose. Now,
22 you have nominated every one of them except one, and that is the
23 complicity in genocide. Perhaps the logic of that will become apparent at
24 the trial, but let's not worry about the form of the indictment.
25 MS. KORNER: I'm sorry. Forgive me one moment, Your Honour.
1 JUDGE HUNT: The second count you've excluded, which is
2 complicity --
3 MS. KORNER: Yes, because complicity, it seems to us, is a matter
4 of logic. You can't have a common purpose to be complicit in genocide,
5 either you have a common purpose or you intend to commit genocide. That's
6 the only reason.
7 JUDGE HUNT: That's going to be an interesting issue to
8 investigate. I'm not saying that facetiously, because complicity there, I
9 would have thought, would include a common purpose. Most of the textbooks
10 who use a Latin type of phrase, they talk about common purpose under the
11 expression of complicity. But anyway, that's another matter.
12 You were then required by that decision that in the event that it
13 relied upon any of the crimes charged in the indictment as falling within
14 the object of the joint criminal enterprise, to plea that the accused had
15 the state of mind required for that crime. Where have you done that?
16 MS. KORNER: Your Honour, each shared the intent and state of mind
17 required for the commission of each of these crimes.
18 JUDGE HUNT: Yes. Where do you plead that?
19 MS. KORNER: In paragraph 27.1.
20 JUDGE HUNT: 27.1 says: "The purpose of the joint criminal
21 enterprise was the permanent forcible removal of the Bosnian Muslims and
22 Bosnian Croat inhabitants from the territory of the planned Serbian state
23 by commission of the crimes alleged."
24 There's nowhere there a statement of a state of mind. State of
25 mind is an element of an offence.
1 MS. KORNER: If Your Honour would be kind enough to read on.
2 "Radoslav Brdjanin and Momir Talic and the other participants in the
3 joint criminal enterprise each shared the intent and state of mind
4 required for the commission of each of these crimes."
5 JUDGE HUNT: But you have to identify it. You haven't identified
6 it anywhere. You have alleged that crimes have been committed. For
7 example, if you charged him personally with genocide, you would have to
8 state that his intention was to destroy, in whole or in part, a national,
9 ethnical, racial, or religious group as such. Now, you have alleged that
10 he had a common purpose to commit that crime. You have to allege that he
11 had that intention, that state of mind.
12 MS. KORNER: Your Honour, my understanding of the jurisprudence of
13 this Tribunal, as opposed to any other nationality, is that we are not
14 required to plead, in terms, the intent.
15 JUDGE HUNT: Well, you might point that one out to me, because
16 we've directed you to do so. You don't have to give particulars of it.
17 It's a state of mind that you allege, and that's a matter of evidence.
18 But you must allege the state of mind.
19 MS. KORNER: But, Your Honour, if we say that "the other
20 participants in the joint -- each shared the intent and state of mind
21 required for the commission of each of these crimes," it follows, in our
22 submission, as surely as night follows day, that we are saying for
23 genocide, they must have the intent to destroy, in whole or in part,
24 persons because of their ethnicity.
25 JUDGE HUNT: There was a case, I think back in 1996, which said
1 you didn't have to plead the intent. It has never been followed. And you
2 have been ordered here to assert. That was what the order was: that if it
3 relied upon anything, you must plead that he had the state of mind
4 required for that crime.
5 MS. KORNER: Your Honour, that is exactly what we did. We say the
6 state of mind as required by law or by the jurisprudence, as it is when
7 this case comes to trial, that each of the accused must have had that.
8 JUDGE HUNT: The state of mind, the element of the crime, which is
9 state of mind, must be pleaded.
10 MS. KORNER: I want to make sure that I perfectly understand Your
11 Honour this time, what Your Honour is requiring of us in this paragraph
12 dealing with common purpose to state those crimes being genocide, the
13 intent that the Prosecution must prove is this: persecutions that -- that
14 is what Your Honour is asking us to do?
15 JUDGE HUNT: And that, if I may suggest to you, was perfectly
16 apparent from the order that was made.
17 MS. KORNER: Your Honour suggests that.
18 JUDGE HUNT: Yes. Well, I'm now telling you, that it does mean.
19 And you are alleging a common purpose. You have to do it properly. This
20 is your third attempt at doing it. We'll get it right eventually, one
21 hopes. Common purpose became popular only because of the Tadic appeal
22 judgement, as far as I can see. It seems to be thought to be the answer
23 to everything. It's not. It's not easy for prove, and it's certainly
24 proving difficult to plead. You have to prove that. You have to prove
25 it. You have to prove it's a material fact. It should be in the
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13 and the English transcripts.
1 indictment. I agree with you, you don't have to give particulars in the
2 indictment, but you would have to give particulars, for example, if you
3 were asked and it wasn't clear from the statements which have been
5 MS. KORNER: Your Honour, I really want to make this entirely
6 clear for the purposes of this record. Your Honour is saying that the
7 words that "each shared the intent and state of mind required for the
8 commission of each of these crimes" is insufficient.
9 JUDGE HUNT: Yes, it is. If you pleaded against him personally
10 that he committed genocide, that he perpetrated that offence himself, you
11 would have to plead that he had that intention.
12 MS. KORNER: We've done so.
13 JUDGE HUNT: Where?
14 MS. KORNER: In count 1.
15 JUDGE HUNT: That he intended to destroy, in whole or in part, a
16 national, ethnical, racial, or religious group as such?
17 MS. KORNER: If you look -- if Your Honour would be kind enough to
18 look at count 1 --
19 JUDGE HUNT: Yes.
20 MS. KORNER: "Individually instigated, ordered," et cetera,
21 "campaign designed to destroy Bosnian Muslims and Bosnian Croats, in
22 whole or in part, as a national, ethnical, racial, or religious group as
24 JUDGE HUNT: Well, then, may I suggest to you that 27.1 would be
25 very brief. You could make a reference to this, if you've done this for
1 each of the offences, make a reference to them. What I am concerned
2 about, Ms. Korner, and I'm sorry to put it this way, is I don't want you
3 or the Prosecution to be able to say, "Well, we're actually relying upon
4 something different there" at the trial. You must lay this out in the
5 indictment so that we know the case you are going to rely upon at the
7 MS. KORNER: I'm sorry, Your Honour. How could we - and I know
8 it's a rhetorical question, and one shouldn't ask Judges rhetorical
9 questions - but how could we allege anything different? Our case is set
10 out in each of the individual counts as against Talic, and by saying the
11 words that we used, we accept them. And what we have to prove is that if
12 there was a common purpose, for each or any of the crimes -- it may well
13 be at the end of the evidence Your Honour were to say; for example,
14 there's insufficient evidence that there was a campaign or a joint
15 enterprise to commit genocide. But we must make it clear that clearly
16 joint enterprise is no more than, as it were, summing up the way the case
17 is put. This wasn't an individual man going off on a frolic, or men,
18 going off on a frolic of their own. And for each of the counts, we have
19 specified the intent.
20 JUDGE HUNT: I suppose, Ms. Korner, I'm guilty of what is a common
21 law crime but not an international crime of relying on similar facts. But
22 as you will recall, you did not even have this allegation of common
23 purpose put in your first indictment, and I had the uncomfortable feeling,
24 from the way in which the Prosecution has conducted itself in this case,
25 that you are trying to leave room to manoeuvre at the trial, and I am
1 trying to stop you.
2 MS. KORNER: Your Honour, this, as it were, common purpose is
3 something that was developed through jurisprudence. When the original
4 indictment was drafted, I don't think anybody thought about that.
5 JUDGE HUNT: I could show you a few judgements of my own in the
6 Supreme Court of New South Wales dealing with common purpose 15 years ago
7 which stated what the elements of the common purpose were. I don't think
8 it's anything new, and that's what has been adopted. It's the common law
9 common purpose that has been adopted.
10 MS. KORNER: Well, I don't imagine Your Honour thinks for one
11 moment that I'm suggesting that, as an English barrister, I've never heard
12 "joint enterprise" or how it's set out. What I'm saying is that it's
13 never been specifically pleaded in earlier indictments in this Tribunal
14 because it wasn't a concept that really had come into this type of
15 international law.
16 JUDGE HUNT: Once it was brought in by the Tadic judgement, I
17 would have expected somebody in the Prosecution to sit down and think,
18 "How can we plead this properly," rather than, "How can we get away with
19 as little as possible?"
20 MS. KORNER: Your Honour takes, if I may say so with respect, a
21 very jaundiced view of the Office of the Prosecutor.
22 JUDGE HUNT: It's a very unfortunate one, but it has been
23 developed mainly in this case, I hasten to add, in relation to its
25 MS. KORNER: I'm sorry that Your Honour should think that.
1 JUDGE HUNT: All right. Now, when will you have your pre-trial
2 brief ready?
3 MS. KORNER: Your Honour --
4 JUDGE HUNT: You thought it would only take a few weeks to prepare
5 the last time I asked you.
6 MS. KORNER: If Your Honour is asking for us to ask for a date,
7 then, Your Honour, I would ask for the end of October. There's a lot of
8 material to be gathered together.
9 JUDGE HUNT: What I have to keep in mind is that it must be a
10 certain number of days - I think it's days - prior to the Pre-Trial
11 Conference, not less than six weeks before the Pre-Trial Conference. And
12 the Pre-Trial Conference will have to be heard before the middle of
14 MS. KORNER: Well, that's right. That's why I asked for the end
15 of October.
16 JUDGE HUNT: Well, let's say not the end of October. I'd like to
17 have a bit more than a day to spare. By the 26th of October. Very well.
18 The pre-trial brief is to be filed on or before the 26th of October,
20 Have you got any reasonably realistic estimate of the time that
21 the trial will take?
22 MS. KORNER: Without the opportunity to discuss with Defence
23 counsel, at the moment I can tell Your Honour that we've disclosed
24 something in the nature of 177 witnesses. We have, as Your Honour knows,
25 taken Rule 92 procedures in respect of about 47. But of course that's
1 subject to agreement by the Defence and rulings by the Court.
2 JUDGE HUNT: And you may, of course, have to produce them for
4 MS. KORNER: And we may have to, depending on that.
5 JUDGE HUNT: Yes.
6 MS. KORNER: Your Honour, it is really exceedingly difficult to
7 estimate. I would hope that there can be agreement, if possible, on the
8 number of, can I put it this way, facts which do not directly implicate
9 either of the accused. If there isn't, then of course it's very
11 JUDGE HUNT: Well, I can only say that from the
12 relationships evidence so far, you are not going to get very many of
13 those. So let's assume you have to prove your case. How long do you
14 think you'll take?
15 MS. KORNER: Your Honour, can we say it this way: Depending on
16 how much agreement we can get, between six and eight months, and of course
17 depending on court sittings?
18 JUDGE HUNT: That's allowing for cross-examination by two Defence
20 MS. KORNER: Yes. I know this problem has arisen in other cases.
21 I don't know how cross-examination is going to develop.
22 JUDGE HUNT: Well, I think that you can --
23 MS. KORNER: Your Honour, if -- can I put it this way: If --
24 JUDGE HUNT: I think you can assume that they will not take as
25 long as it takes in chief. Even the most insistent Serbian counsel, who
1 take the witnesses through every sentence of a statement, don't take as
2 long as it does take in chief. But you could say, say, about two-thirds
3 of the time that you will take in chief, they will be in
5 MS. KORNER: Unless there's going to be any real suggestion that
6 people who testify about killings in camps and the like are lying, that
7 would include cross-examination.
8 Your Honour, while I'm on my feet, may I just mention, because of
9 course what I didn't mention in respect of evidence still to come is
10 expert evidence, that that's still to come.
11 JUDGE HUNT: You mean you haven't even served it yet or --
12 MS. KORNER: I mean that we haven't even got it yet.
13 JUDGE HUNT: What sort of expert evidence are you speaking of?
14 MS. KORNER: There will be an expert historian just to give the
15 background. There will be a military expert. There will be an expert, we
16 trust, to explain the Crisis Staff and its workings; in other words,
17 constitutional, political.
18 JUDGE HUNT: Can I suggest that you put that in the form of a
19 statement that can be tendered, and then it can be cross-examined upon?
20 MS. KORNER: Your Honour, absolutely. Statements are going to be
21 obtained from each of these people. I may say that when we get them, they
22 will be disclosed, although the Rules do say "21 days in advance," but
23 they will be disclosed as soon as we get them or as soon as they are in a
24 form to disclose.
25 JUDGE HUNT: Well, it seems that my estimate of the length of this
1 trial is not too far out. I have pencilled it in for between 12 and 18
2 months, which seems to be about right. If there is any alteration, either
3 there is a sudden degree of cooperation, which will reduce the length of
4 that, or you find that some of your witnesses are going to take a very
5 long time because there's obviously a big dispute about them and that your
6 estimate was too short, please let us know.
7 MS. KORNER: Your Honour, yes. I would hope also that perhaps --
8 it's been raised before in respect of, for example, issues such as
9 international armed conflict, but I would hope perhaps when one looks at
10 the Rules that deal with adjudicated facts, more use could be made of this
11 to reduce this to a manageable trial.
12 JUDGE HUNT: Well, I think you might find a problem there. If you
13 remember, there was an application made to have Judge Mumba disqualified
14 because she had participated in the Tadic appeal. Adjudicated facts in
15 relation to those issues, as I pointed out in the decision dismissing that
16 application, the facts here that these two defendants can produce may be
17 vastly different to what a small-town politician like Tadic was able to
19 By the way, I should say Judge Mumba will not be sitting in the
20 case. She is presiding in Section 2 of the Trial Chamber II in the Simic
21 trial. It starts next week, and that is going to go for at least a year,
22 so that so far as those who objected to her presence in the case, they can
23 now feel relieved that she will not be in the case.
24 But the point we made in answer to that objection is a very real
25 one. It's very hard to say that there are adjudicated facts that are
1 binding now because they have been decided in one case in the Appeals
2 Chamber, where these defendants certainly had no input as to the factual
3 material from which they were adjudicated.
4 MS. KORNER: Your Honour, what I have in mind more is: Were there
5 to be convictions, for example, in the trial of Kvocka and others dealing
6 with the Omarska Camp or in the trial of -- I forget the names of the
7 defendants now, the accused, but in the Keraterm case, that one would not
8 have to, as it were, prove that what happened there was persecution if the
9 people running the place had been convicted thereof.
10 JUDGE HUNT: Yes. Well, I thought that you had been dealing with
11 the question of international conflict.
12 MS. KORNER: No. I think I appreciate -- I hope we can deal with
13 that, because clearly the evidence since the Tadic case has changed and
14 increased quite dramatically, and so I would hope that we're not going to
15 spend a lot of time on that. But I had more in mind questions such as
17 JUDGE HUNT: That's a very different matter, and there would be
18 certainly some degree of persuasion exerted upon the Defence to agree to
19 at least informal proof of a number of those matters; for example, by the
20 tender of their evidence more in the findings upon which that evidence is
22 There was an examination of this issue recently. The Prosecution
23 put forward an amendment to the Rules, which was considered in the
24 Plenary, dealing with the powers of a Trial Chamber to say, "That's been
25 decided in another case. We'll take the findings as having determined the
1 issue." That Rule was not passed. I can't say any more than that because
2 of the nature of Plenary discussions. But we are obviously more concerned
3 with using those provisions of the Rules, such as 92 bis, if I have it
4 right, which permit transcripts to go in, and if there is something which
5 could be shown which would make the cross-examination of those witnesses
6 worthwhile, they'll be brought in for cross-examination. But that Rule of
7 adjudicated facts remains there, and one day somebody will tell us how it
8 could possibly operate in the circumstances in which we have to operate
9 here, with the changing factual basis as we go from case to case.
10 But certainly the intent that I have, so far as I have any say in
11 it, there will be an attempt to persuade the Defence to allow a great deal
12 of that sort of evidence about what happened inside individual camps to go
13 in by transcripts.
14 MS. KORNER: Yes.
15 JUDGE HUNT: Right. Well, now is there anything else you want to
17 I know Rule 66(C) was not dealt with before the vacation, but it
18 will be dealt with shortly. I think that's the only other thing.
19 I'm going to direct you to amend that indictment again, I'm
20 afraid, in relation to those two matters at least.
21 MS. KORNER: I gathered that.
22 JUDGE HUNT: Yes. And hopefully this time we'll get it right.
23 I'm sorry, Ms. Korner. You and I seem to have a problem with
24 communication on some of these issues, and I'm sorry to say that I have
25 formed an impression of the degree of cooperation that we are being
1 given. You'll recall that in one of these judgements, I think it was the
2 one before last, we said the degree of cooperation that the Prosecution
3 will be offering will be judged by its response to our request that we
4 prefer these things to be pleaded in a certain way, and that request was
5 completely ignored.
6 MS. KORNER: Well, I'm sorry that -- I am sorry that Your Honour
7 has formed this impression.
8 JUDGE HUNT: It's a very strong one, I'm afraid.
9 MS. KORNER: All I want to say about this is this: We believed
10 that we had pleaded everything that ought to be pleaded. You tell us we
11 are wrong, and we await --
12 JUDGE HUNT: But we have to take you step by step each time you
13 say, "Oh, we didn't understand that." That's the problem, and it's
14 happened four or five times now. And that is the real worry that I have
15 about the way which this trial will be conducted.
16 Now, is there anything else that the defendants wish to raise? If
17 you are in doubt, Mr. Ackerman, sit down.
18 MR. ACKERMAN: Judge, this is very brief. But just in case it
19 comes up again, I want to just say that I don't think an indictment can be
20 amended by the filing of a corrigendum.
21 JUDGE HUNT: No, I agree with that, but at some stage we have to
22 consider whether the accused will be asked to re-plead to them. But I'd
23 like to get the indictment settled first. I should send an account for
24 settling it.
25 Now, the date of the 14th -- I'm sorry. Anything from General
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13 and the English transcripts.
1 Talic's Defence team?
2 MR. PITRON: No.
3 JUDGE HUNT: Thank you. Well, the date of the 14th of January
4 will remain, but it will be kept under consideration. And I can only say
5 to you that whilst we will ensure the best possible trial we can get, it
6 will never be a perfect one in the circumstances under which we operate,
7 and if you do not start on the 14th of January, you will not start until
8 the middle of next year, at the very earliest, and that would be a
9 tragedy. So we should all work towards achieving that result that you do
10 start then. That way, we will keep in touch.
11 I'll now adjourn.
12 --- Whereupon the Status Conference adjourned
13 at 12.45 p.m.