Tribunal Criminal Tribunal for the Former Yugoslavia

Page 329

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

14 Erasmus.

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

Page 330

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

Page 331

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

Page 332

1 Luka?

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

6 now.

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

Page 333

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

15 important.

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.

Page 334

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

Page 335

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

Page 336

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.

Page 337

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

Page 338

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

8 French.

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

Page 339

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

23 understands?

24 MS. KORNER: The answer to that is: largely, yes, because most of

25 the material is in fact in the Serbian language.

Page 340

1 JUDGE HUNT: Right. Now, have you --

2 MS. KORNER: But --

3 JUDGE HUNT: Have you disclosed it in a language which counsel

4 understands?

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.

Page 341

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.

Page 342

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

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Page 344

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

5 languages?

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.

Page 345

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,

Page 346

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."

Page 347

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.

Page 348

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

Page 349

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?


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

Page 350

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

Page 351

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

Page 352

1 opportunities.

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

Page 353

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

Page 354

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

5 typed.

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

22 material?

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.

Page 355

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

14 68.

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

Page 356












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Page 357

1 because if you want this trial to start in January, you've got to do it

2 now."

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

14 that.

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

Page 358

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

Page 359

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

Page 360

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.

Page 361

1 MS. KORNER: I'm sorry. Your Honour, it means exactly what it

2 says.

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

17 it.

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

Page 362

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

16 precision.

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

20 Corps.

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.

Page 363

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

Page 364

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

15 involvement.

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

Page 365

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

15 decisions.

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

Page 366

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.

Page 367

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.

Page 368

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

Page 369

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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Page 371

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

4 supplied.

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 --


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

23 such."

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

Page 372

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

6 trial.

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

Page 373

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

24 assistance.

25 MS. KORNER: I'm sorry that Your Honour should think that.

Page 374

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

13 December.

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,

19 2001.

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

Page 375

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

3 cross-examination.

4 MS. KORNER: And we may have to, depending on that.


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

10 difficult.

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

19 teams?

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

Page 376

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

4 cross-examination.

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

Page 377

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

18 produce.

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

Page 378

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

16 that.

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

21 placed.

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

Page 379

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

16 raise?

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

Page 380

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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Page 382

1 Talic's Defence team?


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.