1 Monday, 7 October 2002
2 [Open session]
3 [Status Conference]
4 --- Upon commencing at 9.08 a.m.
5 [The accused entered court]
6 JUDGE AGIUS: Yes, Madam Registrar. Good morning to you. Could
7 you be kind enough to call the case, please?
8 THE REGISTRAR: Yes, Your Honour. Good morning. This is case
9 number IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.
10 JUDGE AGIUS: Mr. Brdjanin, good morning to you. Can you hear me
11 in a language that you can understand?
12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your
13 Honours. I can hear you and understand you.
14 JUDGE AGIUS: I thank you. You may sit down.
15 Appearances for the Prosecution?
16 MS. KORNER: Joanna Korner, Andrew Cayley assisted by Denise
17 Gustin, case manager, good morning Your Honours.
18 JUDGE AGIUS: Appearances for Radoslav Brdjanin.
19 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman and
20 I'm with Milan Trbojevic and Marela Jevtovic.
21 JUDGE AGIUS: Good morning to you. So good morning, everybody.
22 You know that this is a Status Conference that the Chamber had decided to
23 hold, specifying also the date, and this was before Mr. Ackerman himself
24 included an ad hoc request for holding of a Status Conference in one of
25 his last -- one of his motions.
1 I suppose we need to go through all this one point after another.
2 I have my agenda which I have prepared, which, however, seems to have
4 But basically -- oh, here it is. The reason for this Status
5 Conference is more or less something that has already been stated, made
6 clear, during the last sitting or two sittings. This is a consequence
7 mainly of the severance of the two accused, of the two trials, and also as
8 I understood it when we first started discussing the possibility of a
9 Status Conference, also the need which was felt at a time to have some
10 amendments made to the indictment, as well as the reorganisation of the
11 case for the Prosecution, which to me seemed to be something which was
12 obvious that needed to be done.
13 Since we last met, we have had some developments. There was one
14 motion from General Talic to revoke the order for severance and also
15 accompanying it, in the sense that it's related to it, another motion
16 which asked for staying of proceedings and also time to file written
17 submissions, further written submissions on it. That matter has been
18 decided. The first of these motions was actually a request was for
19 certification. That was served -- the English version was served on you,
20 Mr. Ackerman, as lead counsel and the matter was decided last Thursday or
21 Friday. Certification being denied.
22 After that, the second of the -- the second motion was also
23 decided in the same decision, which was to give time for the filing of
24 submissions and in the meantime to stay proceedings. That was also
25 rejected. And following the filing of the decision of this Trial Chamber
1 rejecting certification, requested certification, the Trial Chamber
2 received an another motion from General Talic which we don't need to
3 discuss here because basically now it belongs to that trial and not this
4 one, and whether it will be decided or whether it needs to be decided or
5 not is a matter that does not concern you. But I'm just briefing you to
6 put you in the complete picture.
7 MS. KORNER: Your Honour, if I may just before you leave that, we
8 haven't filed a response to that because again we didn't know whether --
9 which Trial Chamber or whatever is seized of it. But in any event, Your
10 Honour, we took the view that it was otiose, we didn't require to
11 file a response to it, because in fact, you had already made a decision on
12 the issue.
13 JUDGE AGIUS: I think so.
14 MS. KORNER: But if Your Honours or whichever Trial Chamber deals
15 with that matter requires a response, then perhaps your clerk would let it
16 be good enough to let us know.
17 JUDGE AGIUS: Basically, the way we looked at the matter, you know
18 I mean that as experienced lawyers and we as experienced judges know that
19 when something like this happens, sometimes you get a motion and you don't
20 know exactly in which compartment to put it, or from which house to --
21 which bakery to bake it. And the decision that we took since it was a
22 request for certification leading to possibly revocation, we decided that
23 it belonged to the joint trial at the time and not to Talic's trial
25 So what happens to the last motion, I tell you, I will involve
1 Mr. Ackerman as Defence counsel for Mr. Brdjanin if it's the case of
2 involving him. You definitely will need to be involved because whichever
3 compartment that needs to be put in, you're always the Prosecutor in this
5 As far as the rest is concerned, we have point number 1 that I
6 would like to deal with, and I think it can be dealt with very easily, at
7 the time this Chamber had -- was still considering Talic's request for
8 certification and the accompanying motion, you, Mr. Ackerman, filed a --
9 another motion of your own, asking for a delay in hearing witness or
10 proceeding with the case until the matter of the certification was
11 decided. Now, we have decided that issue and so am I right in taking it
12 that that motion is now to be considered moot?
13 MR. ACKERMAN: Yes, of course.
14 JUDGE AGIUS: So that's point number 1 that is being made. That's
15 for the Registrar and also my staff, Mr. Brdjanin's motion of last week
16 asking for a delay in the continuation of the proceedings pending the
17 decision on the certification is now moot.
18 Then we had concurrently two sets of documents coming from both
19 sides, which have a -- converge on something which is basic to the
20 continuation of this trial. And that is following an indication which we
21 had from the Prosecution during the last sitting, that was also as a
22 consequence of a verbal remark that you made, Mr. Ackerman, an indication
23 that the Prosecution will be seeking to amend to some extent the
24 indictment. At the same time, you came forward with an ad hoc motion for
25 the -- request for the amendment of the indictment and also for the
1 proceedings not to go ahead before the indictment is actually and
2 effectively amended. And I think that that is the next point that needs
3 to be taken up in this Status Conference.
4 May I just, in order to streamline and make everybody's task
5 easier, remind you of what was stated way back --
6 MR. ACKERMAN: I apologise, Your Honour.
7 JUDGE AGIUS: Let's start from the first of October. Basically on
8 that day, Mr. Ackerman, you asked that a new indictment be filed and that
9 the case be stayed until this new indictment was actually filed and
10 accepted or endorsed by this Chamber as required by the rules. At the
11 time, we invited you to make submissions on -- or rather you asked,
12 Mr. Ackerman, that we invite the Prosecution and you to make submissions
13 on which evidence tendered so far is relevant to Brdjanin's case and
14 should be incorporated into the records of this case. As a result of
15 these two specific requests, we agreed at the time that we would be
16 convening this Status Conference. Two days later, that is on the 3rd of
17 October, the Prosecution filed a response and specifically, this Chamber
18 was asked to reject the request for the stay of proceedings, to the --
19 deny, reject, the request, the parties make submissions regarding the
20 relevance of evidence which had already been admitted in the trial, and to
21 order that the proposed amended indictment that was filed on the same day
22 be approved for the duration of the trial against your client, Brdjanin.
23 The Prosecution on the same day requested leave to amend the
24 indictment as per the document which has been circulated.
25 There are two documents relating to possible amendments to the
1 indictment. Some amendments that have been suggested by the Defence for
2 Brdjanin have been incorporated in the proposed amendments by the
3 Prosecution. Some others do not feature in the proposed amendments. So I
4 would suggest first and foremost to ask the Prosecution to elaborate on
6 MS. KORNER: Elaborate on what?
7 JUDGE AGIUS: About -- there are some further proposed amendments
8 to the indictment forthcoming from the Defence -- from the accused.
9 MS. KORNER: Yes.
10 JUDGE AGIUS: Which have not been incorporated. I don't know
11 whether at the time you drafted and filed the proposed amendments you also
12 had all the amendments that were in front of you, all of the amendments
13 that were being proposed by the Defence because it may well be that there
14 are some amendments that you don't have any difficulty in incorporating
15 now with hindsight or it may well be completely different from what I'm
17 MS. KORNER: Your Honour, we have amended the indictment in the
18 way we think is the correct way. May I say we didn't go through all of
19 Mr. Ackerman's objections or changes. We looked at the indictment and
20 worked out what was the correct way to produce a severed version of it and
21 those are the amendments we seek.
22 JUDGE AGIUS: Mr. Ackerman, do you have any comments on it this?
23 MR. ACKERMAN: Your Honour, I received the proposed amended
24 indictment 20 or 30 minutes ago and I haven't had a chance to even go
25 through it at all. That's the first I've seen it. It was in my box when
1 I arrived here this morning. It was not faxed to me in Texas. It was not
2 at my office here when I arrived here, so I have just had the first
3 opportunity to look at it. I've looked at it for maybe five minutes but
4 certainly, not any opportunity to look at it in depth at all. I don't
5 know where to go from this point other than it's very difficult for me to
6 make any kind after response regarding that indictment until I've had
7 several hours at least to go through it and compare it and think about it.
8 And I'm sorry about that but it's nothing that I could avoid in any way.
9 I didn't know there had been an amended indictment filed until I arrived
10 here this morning.
11 JUDGE AGIUS: No, there will not be several hours. We will go
12 through it bit by bit. Take your indictments out, please. The
13 Prosecutor's corrected version of the fourth amended indictment of the
14 10th December, 2001. We go to para 10 --
15 MS. KORNER: If it helps Mr. Ackerman what we've done, in
16 essence, is remove any charging language as against Talic in the
17 indictment --
18 JUDGE AGIUS: I don't think that's enough for Mr. Ackerman,
19 because I have -- I didn't have it faxed but I had all the documentation
20 with me and I spent a whole weekend going through paragraph by
21 paragraph -- through it paragraph by paragraph, comparing the two texts in
22 juxtaposition with what Mr. Ackerman was suggesting and there are several
23 points. It won't take us a long time. Don't worry, it will take us much
24 less time to go through this exercise than if I were to give the couple of
25 hours to Mr. Ackerman that he has asked for.
1 So para 10.
2 THE INTERPRETER: Your Honour, excuse me, the interpreters do not
3 have a copy of that indictment.
4 JUDGE AGIUS: I need my copy. Do you have a copy of the ...?
5 Yes, Inneke has one. Sorry, Inneke I'm going to deprive you of your copy.
6 And if the Prosecution -- you have the proposed amended indictment, Mr.
7 Ackerman, no?
8 MR. ACKERMAN: Yes, I do, Your Honour.
9 JUDGE AGIUS: Okay. So just open the two indictments, please.
10 Para 10. The Defence for Talic -- for Brdjanin asks for the removal
11 or the deletion in para 10 of any reference to Talic's membership in
12 the ARK Crisis Staff. Essentially, what the Prosecution has done is not
13 what Mr. Ackerman requested. It has only removed the bold
14 characterisation of Momir Talic so that the text essentially remains the
15 same except that Momir Talic in the amended, fourth amended indictment,
16 appears in bold characters while in the proposed amended indictment, it is
17 in normal characters. So here we have the first variation or difference.
18 Mr. Ackerman, do you insist on --
19 MR. ACKERMAN: Well, Your Honour, the status of the situation as
20 is exists today is this: The Prosecution has presented absolutely no
21 evidence that General Talic ever attended any meeting of the ARK Crisis
22 Staff or was ever actually a member of that staff other than one document
23 upon which his name appears. If -- on para 10 of the indictment, it's the
24 intention of the Prosecutor to set out who the members of the Crisis Staff
25 were, then that's one thing. But to name only two, Radoslav Brdjanin and
1 Momir Talic seems to be leaving the indictment basically in the state of a
2 joint indictment of Brdjanin and Talic. If it is the Prosecutor's
3 intention with regard to para 10 to set out in that paragraph who the
4 members of the Crisis Staff were, including General Talic, then that's the
5 way it should be done but otherwise, it is not a Brdjanin-specific
6 paragraph but it's a Brdjanin-Talic paragraph. That's my objection to it.
7 JUDGE AGIUS: Yes.
8 MS. KORNER: Could I reply, Your Honour?
9 JUDGE AGIUS: Yes, please.
10 MS. KORNER: Your Honour firstly, this is a -- if you like -- an
11 abstract of the original joint indictment as it developed through the
12 various orders that were made by Judge Hunt as to the detail that was to
13 be provided. It would have course be possible to apply to amend to put in
14 a number of other details but in our submission, they are necessary.
15 Later on in the indictment, there is reference to other members of the ARK
16 Crisis Staff. The fact is that at this stage, it is a matter for us
17 subject to Your Honour's rulings, as to who we wish to name at this really
18 background paragraph. As to evidence, there is clear, unambiguous
19 evidence that General Talic was named --
20 JUDGE AGIUS: Leave that because the purpose of this Status
21 Conference is not to establish whether there is evidence or not.
22 MS. KORNER: Very well, then Your Honour as far as we are
23 concerned unless there is something wrong in law with that pleading, we
24 submit that we are justified and indeed properly correct because
25 effectively it's still, going right back, it's all one joint indictment
1 against three men but each one has been amended through the process of
2 these hearings.
3 JUDGE AGIUS: So para 10 -- para 12, sorry. The Defence for
4 Brdjanin objects to the retention in the indictment any reference to
5 Talic's presence on the 12th of May, 1992 meeting of the assembly of the
6 Serbian people in Bosnia and Herzegovina, the decision to create the army
7 of the VRS, Talic being amended commander of the 1st Krajina Corps of the
8 VRS and the 1st Krajina Corps engaging in military operations in the
9 municipalities included within the area of the ARK. Basically, this is
10 what is being objected to. In reality, one sees the proposed amended
11 indictment again we just have the whole paragraph retained as it is, with
12 the exception of the name of Momir Talic no longer appearing in bold
14 Now, Mr. Ackerman, do you want to sustain your position?
15 MR. ACKERMAN: Yes, Your Honour. I think a lot of these
16 paragraphs, the same argument applies. And it basically is that if you
17 look at the original indictment in this case, against Mr. Brdjanin only,
18 you don't see any of this language that went into the indictment after
19 General Talic became a defendant in the case, and now, all the Prosecutor
20 is doing is just removing the boldface type but leaving the indictment
21 the same as a joint indictment against Brdjanin-Talic. There is another
22 person involved in this indictment whose name has now been made public but
23 you find his name no where in here, bold or otherwise. And the Prosecutor
24 is really trying to simply conform this indictment to a Brdjanin-specific
25 indictment just by taking out the bold type in General Talic's name but we
1 are in a whole different universe here at this point. This used to be an
2 indictment involving the military. It's no longer an indictment involving
3 the military. Mr. Brdjanin is not military. And Mr. Brdjanin had nothing
4 to do with the military, had no control whatsoever over the military, and
5 to continue this indictment as if there is a military component to it I
6 suggest to you is improper and it must be changed in many of the ways that
7 I've suggested. And I think this argument will apply to a number of the
8 paragraphs, Your Honour, so I won't have to repeat it.
9 JUDGE AGIUS: Yes.
10 MS. KORNER: Your Honour, can I make it clear and I think this
11 will deal with it. First of all, Mr. Ackerman is wrong. The original
12 indictment was against three persons, Brdjanin, Talic, and Zupljanin. It
13 was always a joint indictment but because each person was separately
14 arrested, if one looks at the original or even the one -- the amended one,
15 of December, 1999, it's all very different because the jurisprudence of
16 this Tribunal changed dramatically as to the amount of detail and the
17 further details that were added as a result of motions and instructions
18 from the Trial Chamber clearly at that stage didn't involve Stojan
19 Zupljanin because he's never appeared but Mr. Ackerman must understand the
20 original -- he keeps on talking about an original indictment against
21 Brdjanin alone, there never was such a thing. There was always a joint
22 indictment against all three men.
23 As to the military component, I don't know how often we have to
24 keep saying this. There is and always will be a military component to the
25 evidence in this case. This case against Mr. Brdjanin is that he, Talic,
1 Zupljanin and others, were engaged in a criminal joint enterprise which
2 had a number of different components, the police, the army, and the
3 political. And our understanding of the law is that if there is such an
4 enterprise, the actions and the words of persons in furtherance of that
5 joint enterprise are admissible evidence and, again, to assert that
6 Mr. Brdjanin had no control over the military and the like, all of that is
7 a matter of evidence. What we are dealing with here at the moment is the
8 law on what is permissible charging language in an indictment, and we
9 would be criticised if we did not make it clear that we were saying that
10 this was a criminal joint enterprise and that evidence will be led even
11 now as to the military actions that were taken in the course of this joint
12 enterprise in 1992 in the area known as the Autonomous Region of Krajina.
13 JUDGE AGIUS: Thank you.
14 MR. ACKERMAN: May I respond very briefly.
15 JUDGE AGIUS: Of course.
16 MR. ACKERMAN: I assume Ms. Korner is correct that there was an
17 original indictment charging all three of the people in this case but it's
18 never been served on anyone. I have never seen it. I doubt Your Honours
19 have ever seen it. It apparently rests somewhere in the registry. What I
20 was talking about in regard to the original indictment was the original
21 indictment filed among the pleadings in this case and that original
22 indictment filed among the pleadings in this case charged only Radoslav
23 Brdjanin, did not include all of this language that you see in the current
24 indictment regarding Momir Talic. The second thing is with regard to this
25 issue of joint criminal enterprise. And it seems to me that in the
1 interest of timing, that it might make sense, and I'm just raising this so
2 that Your Honours can begin to think about it and maybe you would prefer
3 that I raise it formally by motion, but it seems to me that it would make
4 sense if the Prosecution contends that there was a joint criminal
5 enterprise, of which Mr. Brdjanin and Mr. Talic were a part, that the
6 Chamber should first require the Prosecution to establish to the Chamber's
7 satisfaction, prima facially, that there was such a joint criminal
8 enterprise and that Brdjanin and Talic and anybody else they contend were
9 members of it, because if the Court would find that the Prosecution has
10 failed to establish that prima facially then we could save an enormous
11 amount of time in this case because we are hearing all of these crime-base
12 witnesses on the basis that at some point it will be established that
13 there was a joint criminal enterprise and if it never happens then we've
14 wasted an enormous amount of time. So that might be a solution to the
15 time problem that I know Your Honours perceive with regard to the
16 continuation of this case, if the Prosecution would simply be instructed
17 to order their proof in that way. It might save a great deal of time.
18 JUDGE AGIUS: You want to file a motion, you're of course free to
19 do so.
20 So that was the submission on para 13 -- para 12. Para 13 is very
21 much the same. If I read well the request of the Defence, it amounts to
22 or it's tantamount to the removal or the deletion from that paragraph of
23 any reference to General Talic being commander of the 1st Krajina Corps
24 and member of the ARK Crisis Staff, being responsible for the
25 implementation of the policy of incorporating the ARK into a Serb state.
1 Do you sustain this -- just say "yes" or "no" because obviously the
2 reasoning if you say no, the reasoning is the same I suppose.
3 MR. ACKERMAN: Yes, Your Honour. I sustain my objection.
4 JUDGE AGIUS: And I don't think you need to respond, Ms. Korner,
5 because -- para 15, that's no problem. Both of you asked for the
6 deletion of that paragraph and that paragraph has indeed been deleted.
7 Para 19, now, this paragraph, in the fourth amended indictment, of
8 December, reads, "General Momir was the commander of the JNA 5th Corps
9 from 19 March, 1992 and on its transition to the 1st Krajina Corps from
10 19th May, 1992, each of the five corps within the VRS had a corps
11 commander and a command staff all of which were subordinated to General
12 Mladic and the main staff of the VRS." You want this to be -- you want
13 the deletion of reference to General Talic being the commander of the JNA
14 5th Corps and on it's transition to the first Krajina Corps and that the
15 corps commander and command staff were subordinated to General Mladic and
16 the main staff of the VRS. Do you sustain it?
17 MR. ACKERMAN: Yes, Your Honour and this is a little different in
18 that these paragraphs are specifically allegations against General Talic
19 and if these are appropriately in the indictment then it seems that also
20 appropriately in the indictments would be specific allegations against
21 Mr. Zupljanin and maybe other members of the Crisis Staff but this clearly
22 is material that was put in the indictment because General Talic was a
23 co-defendant in the case and for no other reason. It wouldn't have
24 been there had he not been arrested and it should not be there now
25 that he's no longer in the case.
1 MS. KORNER: Your Honour, it's in fact background and explanation.
2 That's the trouble with the forms of the indictment here in my view. One
3 is required to set out a full explanation of the events which lead to the
4 specific charges, unlike, I imagine, Your Honour's jurisdiction and mine
5 where you simply have a straight forward allegation. But these are all
6 background paragraphs and they are there to explain how we put the case
7 on -- against accused in relation to each component of it. And clearly,
8 it is important for the Court to know that there was a transformation into
9 the Bosnian Serb Army around the 12th of May and Talic's position therein.
10 But it's one of the things I've always wondered about, whether, when it
11 came to establishing the case one was obliged to establish the background
12 facts as well, but that is background information.
13 JUDGE AGIUS: Okay. Basically, as you know, Mr. Ackerman, the
14 Prosecution seeks to retain this paragraph as it is only removing the bold
15 character from where -- for Talic's name.
16 Same request is directed by the Defence against para 20, in so far
17 as this paragraph contains the duties and lists the duties and
18 responsibilities of General Talic in his capacity as commander. Do you
19 want to sustain and of course the answer is yes, because.
20 MR. ACKERMAN: Yes, Your Honour.
21 JUDGE AGIUS: Because this follows the previous one. And I
22 suppose you're reply is the same?
23 MS. KORNER: Sorry, yes, it is, Your Honour.
24 JUDGE AGIUS: Okay. And then it's 21. Now, here, this is perhaps
25 a little bit more fundamental because it's not just the description --
1 background description, of events, but there is also a -- quite a
2 straightforward allegation here.
3 This paragraph, the Defence seeks to delete in so far as it
4 contains references to Talic as a co-perpetrator in the joint criminal
5 enterprise and that his participation in the execution of the common
6 purpose of the enterprise included activities of the Crisis Staff. There
7 is also a reference to Talic allegedly being individually responsible for
8 the conduct of other participants in the joint criminal enterprise,
9 including members of the ARK crisis and those implementing its decision.
10 What's your position in this -- on this.
11 MS. KORNER: Your Honour, that's quite substantially altered. If
12 you look at paragraph 20.1 which I think is what you're reading it's quite
13 substantially altered from the original.
14 JUDGE AGIUS: Yes.
15 MS. KORNER: You were reading out the original.
16 JUDGE AGIUS: Yes exactly. I'm just pointing out now before you
17 answer that the amendments that have been applied by the Prosecution are
18 three. Number 1, the name of Talic remains there and some places but it
19 no longer appears in bold. Number 2, the words, "General Momir Talic and
20 others" have -- in other words, five lines from the top of that paragraph,
21 reading, "General Talic and others, and other members of the crisis --
22 were co-perpetrators in this criminal enterprise and as such, their
23 participation up to Crisis Staff." "General Momir Talic and other," those
24 words are deleted. "General Momir Talic and others," those words are
1 I suggest Mr. Ackerman reads the proposed amended version. Can
2 you live with that as contrasted with or as compared with the fourth
3 amended indictment?
4 MR. ACKERMAN: Your Honour, I'm basically satisfied with one
5 exception. The first sentence, if the first sentence were removed, then
6 it would begin with, "The Crisis Staff, later renamed War Presidency was
7 one of the structures," blah blah blah blah blah. There is no
8 justification for singling out General Talic being publicly named as one
9 of the members of the ARK Crisis Staff so if that was just removed and the
10 paragraph read, "The Crisis Staff" and on through what the amendment says,
11 then it would be perfectly acceptable and I think appropriate.
12 MS. KORNER: Your Honour, I think I should say one more time, the
13 only legal obligation upon us is to make it absolutely clear in this
14 indictment that General Talic is not charged on this indictment. That's
15 the only obligation we say that we are obliged to follow. And that's why
16 it's been left. We have altered as little as possible because we feel
17 that's the proper thing to do.
18 JUDGE AGIUS: All right. Paragraphs 21 to 23.1, taken altogether,
19 you notice in the original or in the fourth amended indictment, there is a
20 specific reference to the units which were placed under the command of
21 General Talic. The Defence for Brdjanin wants that to be removed. That
22 is not being accepted by the Prosecution. The only difference between the
23 two versions is that Momir Talic appears in bold in the fourth amended,
24 while it does not appear in bold in the proposed amendments. Is it so
25 fundamentally important for to you have this removed, Mr. Ackerman?
1 MR. ACKERMAN: Your Honour, it gives the indictment a fundamental
2 military character, which I think it does not deserve. It's my
3 recollection, and Ms. Korner will certainly correct me if I'm wrong but
4 I'm pretty sure I'm right, these paragraphs were added as a result of an
5 objection to the indictment filed by General Talic himself saying that it
6 was not sufficiently specific, the Prosecution resisted that request by
7 General Talic. Judge Hunt ordered that this kind of specificity be put in
8 the indictment. It was done over the Prosecutor's objection and that's
9 how it got there and now the Prosecutor is objecting to it being removed.
10 And it seems to me that it should be removed, that it is pure Talic
11 material, was put there at the request of General Talic and was not part
12 of any of the original indictments in this case.
13 JUDGE AGIUS: Okay. Do you want to comment, Ms. Korner?
14 MS. KORNER: Well, Your Honour, I'm sure that's -- I can't
15 remember exactly but I'm sure that's right. This was the request for
16 further particulars. But again, Your Honour, it's in there because we are
17 going to be leading evidence of what various units did in various areas.
18 JUDGE AGIUS: Para 24, the Defence seeks the deletion in that
19 paragraph of any reference to Talic being the person responsible to carry
20 out a plan to establish and secure a Serb state and to separate the ethnic
21 communities in Bosnia and Herzegovina and that this included inter alia
22 attacking and destroying non-Serb villages, killing and terrorising the
23 non-Serb population. This is not being -- you're not being met by the
24 Prosecution in this context, Mr. Ackerman, and the only difference between
25 the two texts is the removal of the bold characters. Do you sustain
1 your -- do you retain your position or do you want to change it?
2 MR. ACKERMAN: No, I don't change my position, Your Honour. This
3 is a pure allegation against General Talic because he was originally -- he
4 became part of this indictment. It was not there until he became part of
5 the indictment.
6 JUDGE AGIUS: Now, no comments from the Prosecution?
7 MS. KORNER: No, thank you, Your Honour.
8 JUDGE AGIUS: Para 25 and 26 which I suggest we take together, the
9 Defence is seeking the deletion from those two paragraphs of any reference
10 to what Talic's responsibilities and obligations were as a superior for
11 violations of international law of war committed by individuals under his
12 command. Now, this is not being accepted by the Prosecution and when you
13 compare the two texts, the only difference is the bold characters
14 appearing on the -- in the fourth amended indictment are not being
15 retained. Mr. Ackerman?
16 MR. ACKERMAN: My position is the same as I stated with regard to
17 paragraph 24, Your Honour.
18 JUDGE AGIUS: And your position I suppose is the same.
19 MS. KORNER: It is, Your Honour.
20 JUDGE AGIUS: Now, may I direct you to paras 27.1 to 27.4,
21 please. The amendments that have been incorporated in the proposed
22 amended indictment are the following. Number 1, the name of General Talic
23 which appeared in bold in the fourth amended indictment no longer appears
24 in bold. Then there are minor grammatical adjustments, namely plural
25 becomes singular, which you don't need to worry about, and then in para
1 27.2, there is the removal of the words "and military". In other words,
2 the last line of that paragraph, respective positions in the Bosnian Serb
3 political and military power structures it would read now, "Respective
4 position in the Bosnian Serb political structure." In his position, the
5 reference being to Radoslav Brdjanin only and removal of General Talic.
6 What's your position, as far as this proposed amendment is concerned,
7 Mr. Ackerman?
8 MR. ACKERMAN: Your Honour are we speaking 27.1 through 27.4?
9 JUDGE AGIUS: Yes.
10 MR. ACKERMAN: The only -- I'm satisfied with the amendment with
11 one exception. In paragraph 27.2, after Radoslav Brdjanin, it seems that
12 it makes sense for Momir Talic's name not to appear so it would say,
13 "Including Radoslav Brdjanin and other members of the ARK Crisis Staff."
14 But it's not a Brdjanin-specific indictment to single out Momir Talic
15 among those members of the Crisis Staff. Otherwise, I'm satisfied with
16 the rest of those paragraphs.
17 JUDGE AGIUS: Yes. I will not be asking for your comments unless
18 I see you standing. Thank you.
19 So that is -- then para 32, please, para 33 and para 34. These
20 are simple amendments that, of course, have been necessitated by the
21 severance of Talic, removal of Talic from this case. Each time there is
22 recurrence of the word "each of the accused were" now we have the phrase
23 or the words "the accused was" or "the accused is". I suppose that is --
24 should not be in any way controversial.
25 MR. ACKERMAN: It's not, Your Honour. Those are fine.
1 JUDGE AGIUS: Now, may I direct you to para 36 now? This is
2 perhaps where you need to both to pay a little bit more attention.
3 Basically, as I read your motion, Mr. Ackerman, more or less you -- with
4 regard to the charges section of the indictment, you are seeking the
5 removal of any reference to Talic, including the following. In para 36,
6 you were seeking for the removal of any indication towards individual and
7 joint responsibility of the accused for the alleged offences. In reality,
8 the proposed amendments are to this effect, name of General Talic is being
9 deleted, and then obviously, wherever you have the recurrence of the words
10 "with each other" that has also been deleted. Are you happy with that?
11 MR. ACKERMAN: Well, Your Honour, I certainly take your word for
12 what has happened. I've not had a chance to read all the way through all
13 of those. If what you say is the case, then, yes, I'm happy. All I ask
14 for was that General Talic's name be removed from those, and that's kind
15 of an obvious request, I think.
16 JUDGE AGIUS: So the same applies basically, it seems to me,
17 correct me if I am wrong, as far as paras 44, 46, -- 44 and 46. Wherever
18 there was the name of Talic, this has been removed and wherever there was
19 the use of the words "with each other" these also have been removed.
20 All right?
21 MR. ACKERMAN: Yes, Your Honour.
22 JUDGE AGIUS: Okay. So may I refer you now to para 48, please?
23 And in para 48, you have the deletion of General Talic's name. Otherwise
24 everything remains the same.
25 MR. ACKERMAN: That's acceptable, Your Honour.
1 JUDGE AGIUS: Okay. Paras 50 and 52. Name of Talic has been
2 deleted and there are some consequential grammatical changes, which
3 shouldn't bother you.
4 MR. ACKERMAN: No. It's fine, Your Honour.
5 JUDGE AGIUS: Okay. Thank you. The same applies to paras 54 and
6 56, 58, and 60, and 62, and 64.
7 MR. ACKERMAN: Yes, Your Honour, and again I think the amendments
8 are appropriate.
9 JUDGE AGIUS: Okay. So I think we have covered all the proposed
10 amendments and when I say proposed, proposed from both sides. And
11 therefore, the matter will be decided later on today by this Chamber in so
12 far as the proposed amendments are concerned. So.
13 MS. KORNER: Your Honour, I just have one query on that. I don't
14 quite understand the procedures on this. If Your Honours order amendments
15 to be made, does that -- I think that doesn't require it to be resigned,
16 it's the same indictment with amendments. That's I think -- but I'm not
17 sure about that.
18 JUDGE AGIUS: I'm not sure either, Ms. Korner. In fact it's
19 something that I need to go and discuss with my --
20 MS. KORNER: If Your Honour gives us the answer we will comply
21 with whatever is required.
22 JUDGE AGIUS: What I can assure of you is it's something that is
23 going to be attended to today.
24 MS. KORNER: Thank you very much.
25 JUDGE AGIUS: In other words, It's not our idea to sleep on this
1 or to take much time in deciding it. As soon as this sitting is over, in
2 fact we are going to meet to conclude on this and the other.
3 So next point is, in your document, objection to proceeding with
4 the trial under the current indictment, Mr. Ackerman, you are asking for
5 the suspension of evidentiary proceedings or the staying of evidentiary
6 proceedings until this Chamber has approved the new indictment or approved
7 amendments to the indictment. May I have -- may we have your comments on
8 this specific request, Mr. Ackerman? Knowing that we do not intend to
9 proceed with the continuation of hearing of evidence until we decide this,
10 but we are going to decide it today.
11 MR. ACKERMAN: I'm not sure what Your Honour is asking for.
12 JUDGE AGIUS: No, no. You asked specifically and in a way it is
13 understandable, in another way it may not be so understandable, that this
14 case be stayed as far as the receipt of evidence is concerned, until a new
15 indictment has been filed and approved by the Trial Chamber or a Judge
16 thereof and until the accused has been able to exercise whatever rights
17 the rules of justice and justice may provide him with regard to that new
18 indictment. With this, you have a suggestion or a request that should we
19 decide to amend the indictment, you are expecting that -- or you are
20 pretending a right for your client to have 30 days within which to file
21 pleadings or pleas or whatever. Do you sustain that position? Do you
22 maintain that position? Or do you want to withdraw on it?
23 MR. ACKERMAN: Well, Your Honour, I do not withdraw it but I will
24 say this: Until I actually see what the indictment is going to be, it's
25 difficult to tell you my final decision with regard to that. There is not
1 a situation, and the only reason I mentioned 30 days is because that's
2 what the rule says, but there is not a situation where I would require 30
3 days. There is a situation where I might ask for a few days. One of
4 the -- I think -- largely unresolved issues in this Tribunal is to what
5 extent is surplusage permitted in an indictment and can an indictment be
6 attacked because it contains surplusage and that's based upon the
7 proposition that I set out rather briefly in my motion, and that is that
8 what is relevant evidence, basically as judged by a Trial Chamber based
9 upon what is alleged within the indictment. So the language of the
10 indictment can have large impact upon what the Trial Chamber sees as
11 evidence that's relevant to the case.
12 And if the indictment contains surplus language, the only
13 justification for which would be that it would permit the introduction of
14 evidence that otherwise would not be admissible, then it would seem to me
15 that an arguments could be made that that surplus language should be
16 removed and it seems also to me that that would come under the heading of
17 preliminary motions regarding the indictment as provided for by the rule.
18 I think once I know later today or tomorrow what form the indictment is
19 going to take then I can tell you specifically how I feel about that. But
20 in no event would it be 30 days.
21 JUDGE AGIUS: Assuming just nor argument's sake that you are
22 right, and that there will be a requirement or the need for you to file
23 some kind of response or whatever, would the necessary consequence be for
24 the staying of evidentiary proceedings? Do the -- do you see such a close
25 and intimate nexus between the two such as to make it impossible for this
1 Trial Chamber to proceed with the hearing of evidence without, of course,
2 prejudicing your right, if you have it, to file written pleading arising
3 out of the amended indictment?
4 MR. ACKERMAN: Your Honour I haven't given than a great deal of
5 thought but I hear very clearly what it is you're saying and I need the
6 Chamber to understand this: If we could go forward with this case
7 tomorrow, I would like to do that, but I don't want to, by doing that,
8 waive a substantive right of Mr. Brdjanin, and I certainly would not
9 intend to waive any substantive right of Mr. Brdjanin. So I'm unsure
10 about how to answer your question. I think, just as a matter of
11 fundamental law, that a trial should not go forward upon an indictment
12 unless it is a final indictment that is legal and appropriate, and if
13 there is pending some attack upon that indictment, then it would seem to
14 me that it's very difficult to go forward even with a waiver. But if Your
15 Honour believes that we can go forward with a waiver by me that would
16 not affect the substantial rights of Mr. Brdjanin, and we could make that
17 pretty air tight on the record, then I wouldn't have any objection because
18 I do feel like this case should go forward.
19 JUDGE AGIUS: I put it to you again for argument's sake that
20 whatever amendments are made to the indictment, these are the result or
21 are the consequence of not having General Talic any more a joint accused,
22 a co-accused, in this trial. The end result of any -- of the exercise to
23 amend the indictment can never - it's being suggested to you - bring as
24 a consequence either the aggravation of the situation of your client, as
25 far as charges are concerned, in other words he is not going to be -- to
1 be charged any differently from what he has been charged so far. The
2 charges were and it is being suggested will remain exactly the same as
3 they are until now. And if that is the case, if that is the case, where
4 do you see the prejudice?
5 MR. ACKERMAN: Well, frankly, I don't see any at this point, Your
6 Honour. And that's why I said I really would have no objection going
7 forward as long as it does not involve a waiver of any substantive right
8 of my client and I don't think it does.
9 JUDGE AGIUS: Thank you. Ms. Korner?
10 MS. KORNER: I don't know how many times I have to say the same
11 thing. The amendments, as Your Honour has rightly said, are only those to
12 remove from the indictment a suggestion that General Talic is facing
13 potential conviction on that indictment. It is our submission that
14 Mr. Ackerman has absolutely no right, under the rules, to seek a 30-day
15 adjournment to file pleadings. Rule 50 states, "The Prosecutor may amend
16 an indictment under (A)(i)(C) after the assignment of a case to a Trial
17 Chamber with the leave of that Trial Chamber or a Judge after having heard
18 the parties." And in (A)(2), "After the assignment after case to a Trial
19 Chamber it shall be not necessary -- it shall not be necessary for the
20 amended indictment to be confirmed."
21 Rule (B), Rule 50(B), "If the amended indictment includes new
22 charges, and the accused has already appeared, there is no need -- then
23 there has to be a further appearance," and (C), "The accused shall have a
24 period -- a further period, of 30 days, in which to file preliminary
25 motions pursuant to Rule 72 in respect -- and I emphasise -- of the new
2 So Your Honours, with the greatest respect, Mr. Ackerman does not
3 have a right under the rules on this amendment to file a further
5 Your Honour, my concern is that we have witnesses here. In fact
6 because we thoughts we were sitting in the afternoon, we were expecting to
7 call a witness today but we have four witnesses here and we need to know
8 to be assured that we will shall able to call evidence tomorrow.
9 JUDGE AGIUS: Yes. Next point, tell me when we need to stop,
10 Madam Registrar? Okay. Thank you. Now, the decision will be handed down
11 orally by the way and there is no other way of dealing with it without
12 wasting much time.
13 MS. KORNER: Can I ask, will Your Honours then reassemble the
14 Court when you reach the decision?
15 JUDGE AGIUS: Yes.
16 MS. KORNER: Yeah.
17 JUDGE AGIUS: So we will be deciding first on the proposed
18 amendments, secondly whether we are going to stay proceedings, thirdly
19 whether we are giving you or whether you are entitled in case we amend, as
20 we need to amend the indictment in any case, whether you are entitled or
21 whether you will be given any time limit under the rules.
22 Next thing that obviously needs to be addressed, you made a
23 suggestion, or a request, Mr. Ackerman, that now that the two cases are
24 being separated, and that for a good number of months we have been
25 receiving evidence directed against the Brdjanin and Talic as co-accused
1 in this trial, time should be taken to sift from amongst that bulk of
2 evidence, corpus of evidence what is relevant to Brdjanin's case and what
3 is not. This request is being opposed by the Prosecution and may we hear
4 any further submissions in addition to what you have put in writing on
5 this point?
6 MR. ACKERMAN: Your Honour, it's not very material to me when that
7 process is carried out. It could even be carried out at the close of the
8 Prosecution's case, as far as I'm concerned, but it seems it to me there
9 does come a time when it's important for the Brdjanin Defence to know what
10 case it has to answer. And it's my contention that a great deal of the
11 evidence, not a great deal but at least some portion of the evidence that
12 exists in the record right now would not have been admitted had it not
13 been for the presence of General Talic in the case. And I think at some
14 point the Court must decide what of that evidence becomes part of whatever
15 the indictment will be against Mr. Brdjanin as we continue this case. But
16 I'm not suggesting to you that we need to stop all proceedings and spend
17 the next month going through that process. I think that process can be
18 carried out over the course of this trial without delaying the trial in
19 any way.
20 JUDGE AGIUS: I think, Mr. Ackerman, you're putting in the same
21 pot two completely different things. One, there is no doubt that the
22 Trial Chamber eventually will have to decide which of those documents are
23 relevant to your client and which may not be relevant at all. But that is
24 a separate exercise which should not be mentioned at this stage because
25 that's our problem and not yours, neither the Prosecution's nor yours.
1 You are mature enough to know or experienced enough to know that the
2 Prosecutor can stand up and say, "Every single document that has been
3 tendered it -- is relevant." At that point in time, what is your request?
4 The Prosecutor tells you, all of them are relevant.
5 MR. ACKERMAN: I think that's probably the Prosecutor's position
6 that all of them are relevant.
7 JUDGE AGIUS: We are all experienced here and this is why I'm
8 preempting the issue because I had no doubt that this is what Ms. Korner
9 will have stated.
10 MR. ACKERMAN: The question of relevance is always one for the
11 Trial Chamber and it has always been the case since we started this trial
12 that issues of relevance were going to be decided later on in the case.
13 That's what Your Honour said in your preliminary remarks before we
15 JUDGE AGIUS: Many of them are not relevant or not relevant at
17 MR. ACKERMAN: I understand that but I'm just saying the question
18 of relevance, I think, has changed as a result of the severance in this
19 case and so a new approach must be taken to that issue and the only way it
20 affects Mr. Brdjanin, Your Honour, is that there must come a time when
21 Mr. Brdjanin is made aware of what case it is he has to answer.
22 JUDGE AGIUS: Does that arise from the documentation or from the
24 MR. ACKERMAN: It arises from what the Prosecution has been able
25 to prove from their evidence, Your Honour.
1 JUDGE AGIUS: That's at the end of the -- of the closing of the
2 case for the Prosecution.
3 MR. ACKERMAN: Absolutely. I think I just said that it a few
4 moments ago.
5 JUDGE AGIUS: Ms. Korner do you want to comment on it this? Okay.
6 So that is again another matter that will be decided.
7 I think that covers most of what has come to the surface in the
8 wake of the severance of the two accused.
9 Are there any matters that you would like to raise, keeping in
10 mind that we have ten minutes before we are supposed to break. Otherwise,
11 if any argument that you are bringing up now raising, needs more than ten
12 minutes, we better stop now and resume after the break.
13 MS. KORNER: Your Honour, I don't know is the answer, but I have
14 to raise what happened in the Appeals Chamber on Thursday. I'm not sure
15 how long that is going to take. I think it probably may take more than
16 ten minutes.
17 JUDGE AGIUS: This is about the Randal --
18 MS. KORNER: This is about the Randal affair and what happened.
19 JUDGE AGIUS: I have not consulted with my colleagues as yet
20 because I didn't have the chance but just to inform you that last Friday,
21 I asked for a copy of the transcript of the proceedings before the Appeals
22 Chamber and I have read them. What I haven't read, because it hasn't been
23 given to me, is a copy of the Boston Globe article which supposedly
24 contains an interview with Mr. Ackerman, but again, I mean, I must make it
25 clear that this is one topic that I have not yet discussed with my
2 MS. KORNER: Well it may be as well Your Honour if we were to
3 break, we can provide Your Honours with a copy of the Boston Globe because
4 it formed part of the appellant's brief. What I am afraid I managed to
5 mislay wholly somehow -- I should have given it to Ms. Gustin straight
6 away but I didn't was Mr. Ackerman's e-mail to solicitors for the
7 appellants and their response which was put in to the trial -- the Appeals
8 Chamber. I was provided with a copy on the morning --
9 JUDGE AGIUS: That I haven't seen either.
10 MS. KORNER: But I'm afraid I may have to ask if perhaps one of
11 your staff could speak to the senior legal officer to the Appeals Chamber
12 and see if he can provide a copy of that. Perhaps -- I wouldn't mind a
13 copy either because I've lost mine.
14 JUDGE AGIUS: So basically, I mean, I have read -- let me just
15 hear you, Mr. Ackerman, for a couple of minutes, not more, on this. In a
16 way, I understand what your stand is and what your preoccupation or your
17 concern is. I want to make it clear also that I will be suggesting to my
18 colleagues to approach this not from the importance of the appeals hearing
19 or decision, because that is - I consider - to be something which is
20 completely irrelevant to the point that is being raised by you, arising
21 from the interview which Mr. Ackerman gave to the Boston Globe. What's
22 your position, Mr. Ackerman?
23 MR. ACKERMAN: Your Honour, I think I can state it very briefly.
24 My original position regarding this matter has changed a little bit but
25 not very much. And I think I have -- it's on the record somewhere in this
1 case that I did change that position, I'll find it if you'd like me it to
2 but in any event, my position is this: Having spoken with the other
3 journalist involved, he was here, he spoke with the Prosecution and he
4 spoke with me, and at that point, my position changed.
5 JUDGE AGIUS: The other journalist involved without mentioning a
6 name is the one who is supposed to have been interpreting?
7 MR. ACKERMAN: Yes.
8 JUDGE AGIUS: Okay.
9 MR. ACKERMAN: I had originally thought it was a different
10 interpreter and that's when I first learned it was this journalist. At
11 that point it became clear to me that -- and I looked at the article that
12 the second journalist wrote, at that point it became clear to me that the
13 Randal article was largely correct, as far as it went, but it failed to
14 put the whole issue into context and therefore was misleading and that it
15 was necessary to cross-examine Mr. Randal for the purpose of showing the
16 context in which the article was written. I agreed with Mr. Koumjian or I
17 suggested to Mr. Koumjian that I would have no objection to admitting the
18 article written by the other journalist because it did contain reference
19 to the context in which the alleged remarks were made where the Randal
20 article did not. And so if the Prosecution still insists on using the
21 Randal article as opposed to the other one, then I must still insist that
22 he be brought here for cross-examination. Now, somewhere there was
23 confusion generated with regard to that and I think it probably was my
24 fault there was confusion generated with regard to that, I didn't intend
25 for that to happen but I think just now I have stated my position about as
1 clearly as I can.
2 MS. KORNER: Your Honour, in fact, I think there is so much that
3 needs to be said on this position that I think we better do it after the
5 JUDGE AGIUS: At least I know what the position of Mr. Ackerman
7 MS. KORNER: Absolutely.
8 JUDGE AGIUS: Because I was a little bit confused actually.
9 MS. KORNER: I don't think there is anybody who wasn't confused
10 about that.
11 MR. ACKERMAN: Your Honour, may I suggest that instead of
12 reassembling in a few minutes to discuss this that you go ahead with the
13 task you have before you and if there is anything further to discuss with
14 regard to the Randal matter we could do that when you announce your
15 decision later today.
16 JUDGE AGIUS: Obviously, yes.
17 MS. KORNER: So Your Honour is going to -- sorry I understood we
18 were going to have a break and then come back to discuss the Randal
20 JUDGE AGIUS: Of course, yes.
21 MS. KORNER: That's what I thought.
22 JUDGE AGIUS: No, no. This is was just because I didn't quite
23 know what Mr. Ackerman's position was because one time he seemed to be
24 accepting the article or the correctness of the article. At the same
25 time, still requiring the -- Mr. Randal to be here for cross-examination
1 to rectify the wrong impression that the article may be giving or may have
2 given so that is where I was confused obviously.
3 MS. KORNER: I'm sorry, Your Honour. Mr. Ackerman -- I think Your
4 Honour has now misunderstood. Mr. Ackerman is suggesting that we don't
5 have break and come back and discuss it. He's suggesting that we don't
6 discuss it until you've reached a decision on the indictment. That's what
7 I was clarifying.
8 JUDGE AGIUS: No, no, no. We discuss Randal and then we reach --
9 because the first we have to conference amongst ourselves on the
10 indictment and give instructions for the elaboration of at least a few
11 points that we may require in giving the oral decision. Then we meet here
12 to discuss the Randal -- we may actually decide the issue before we move
13 on to discuss the Randal thing but we may require to postpone giving the
14 oral decision until after the discussion on the Randal but first we have
15 a break and then we will.
16 MS. KORNER: Your Honour, the break being -
17 JUDGE AGIUS: 30 minutes, I think we need, 30 minutes at least.
18 MS. KORNER: 30 minutes. Thank you.
19 JUDGE AGIUS: Okay. Thank you.
20 --- Recess taken at 10.30 a.m.
21 --- On resuming at 11.18 a.m.
22 MS. KORNER: Your Honour, may I take a little time it to run
23 through what is rather a complicated history now because it's important I
24 think for a number of reasons that we sort this. Your Honour, the Appeals
25 Chamber at the end of the hearing on Thursday, as Your Honour knows,
1 because you've read the transcript, Judge Meron asked me or he said this,
2 "The situation before us now in the light of the e-mail which was
3 mentioned is perhaps less than crystal clear. I would be grateful to the
4 Prosecutor to Ms. Korner if she would tell us this. Assume that it is
5 confirmed that Mr. Brdjanin does no longer contest the accuracy of the
6 quotations, would you still need in these circumstances a subpoena?" And
7 my response to that was this: "First, the point that I'm trying to make
8 is that although Mr. Ackerman has sent this extraordinary e-mail not
9 to the court but to the appellant saying he no longer wishes to contest
10 it, that admission has to be made before the Trial Chamber. Then if the
11 Trial Chamber admits the article we certainly, on behalf of the
12 Prosecution don't require Mr. Randal to attend. Mr. Ackerman, however, in
13 order, as I understand it, still to have this article admitted says
14 that we must call, says the Trial Chamber must order the journalist to
15 appear so that he can question him about the context. But at the moment,
16 as I say, all of this is unclear. We do not wish to call Mr. Randal. We
17 took the statement from Mr. Randal to confirm the accuracy of the quotes.
18 If those are no longer disputed, that ends our interest in calling him
19 provided the article is admitted." Now, Your Honour, it arose as Your
20 Honour well remembers in this way, that the article was objected to and a
21 statement had been taken from Mr. Randal, and I think it's worth reminding
22 Your Honours and Mr. Ackerman of what is in the statement as a result of
23 what Mr. Ackerman has been saying since then. It is to this effect, Your
24 Honour, if you would forgive me one moment while I just extract -- it was
25 attached to the -- sorry.
1 Yes. Your Honour, the statement taken from Mr. Randal said
2 this, in respect of the interview. "The other journalist X and I
3 interviewed Brdjanin at the Presidency in Banja Luka. He was open with us
4 and quite happy to talk. X was a former Fulbright scholar in Belgrade and
5 spoke fluent Serbo-Croat. We therefore did not need an outside
7 Your Honour, then I have looked at the transcripts in which these
8 matters were discussed before Your Honours because they were supplied to
9 the solicitors for Mr. Randal with the leave of Your Honours. It arose
10 first on January the 21st when I said that the witness declined to attend,
11 and Mr. Ackerman at page 653, stated that he required Mr. Randal to attend
12 because he objected to the use of any newspaper articles to prove a fact
13 at issue in this case and this one falls into the same position and it may
14 very well be that this person doesn't want to come because they can't
15 substantiate what they wrote in the article. The appeals Chamber was then
16 told that apparently Mr. Ackerman hadn't read the article so the matter
17 was adjourned from that day.
18 Then it arose again -- I'm sorry, in the same day, and Your Honour
19 dealt with it, and then again in respect of the witness summons, on the
20 26th of February, I raised the matter again and asked whether it was
21 required for the journalist to attend because whether there was going to
22 be cross-examination upon the content of the interview, and we asked
23 Mr. Ackerman to reconsider the request that the journalist attend saying
24 that we were content purely to put the article in. And Mr. Ackerman at
25 that stage said to Your Honour, and this is at page 2284 of the
1 transcript, "Ms. Korner has touched the very matter that is the essence of
2 my challenge and that is that the person who could actually understand
3 what Mr. Brdjanin was saying was hostile to Mr. Brdjanin politically, and
4 it's my contention that what was written down was not what Mr. Brdjanin
5 said." I am assuming from that that Mr. Brdjanin had provided
6 instructions that the quotes or -- were inaccurate.
7 Your Honours issued the witness summons and it was referred to on
8 a number of occasions after that but Your Honour the only other point that
9 Mr. Ackerman made about it was this, and this was on the 1st of March at
10 page 2527 of the transcript, he was objecting to the admission on the
11 basis that it was after the period specified in the indictment. And then
12 he broached for the first time that the subject matter of the interview
13 was Mr. Brdjanin as a minister of the government was being asked his views
14 regarding the cantonisation plan put forward by Vance and Owen and he
15 dealt with -- the Vance-Owen Plan and stated that was what he was being
16 asked to comment upon, that is Mr. Brdjanin, his client.
17 And that effectively was the last discussion, save for the
18 question of the witness summons and when it was going to be served up.
19 Your Honour, therefore at no stage and this is the point I was forced to
20 make, although Mr. Ackerman then -- and I think Your Honour now looked at
21 the Boston Globe article, gave an interview to the Boston Globe in which
22 he stated that, having said this, "The Prosecution entered the article to
23 as evidence to show that the accused had the intent to commit the crime of
24 genocide, Brdjanin's lawyer John Ackerman said in an interview. That if
25 Randal's article were to be entered as evidence the Defence should be
1 allowed to cross-examine the reporter. By questioning Randal, Ackerman
2 wanted to bring up the context of the quotation. Specifically, the
3 Defence claims that Brdjanin was answering a question about the Vance-Owen
4 Peace Plan which would have divided Bosnia into cantonments, hence
5 Brdjanin's quoted remarks should be understood as descriptive not
6 prescriptive, according to Ackerman."
7 Your Honour, there was then that correspondence that was sent to
8 the lawyers acting for Mr. Randal.
9 The situation, Your Honour, is this, at the moment, that
10 apparently Mr. Randal -- I'm sorry, Mr. Ackerman on behalf of Mr. Brdjanin
11 no longer contests any of the accuracy of the quotes. The Prosecution
12 therefore would repeat its application for Your Honours to admit that
13 article as evidence and would not therefore propose to call Mr. Randal.
14 What is important, clearly, is that the Appeals Chamber must be informed
15 of what the situation actually is because it makes the whole matter
16 completely moot as it is a lot of expense has been spent on this when it
17 appears it wasn't necessary and great questions of principle are being
18 raised based on a set of facts which may be thoroughly erroneous.
19 JUDGE AGIUS: It may still be necessary.
20 MS. KORNER: So Your Honours what I'm asking now is that
21 Mr. Ackerman make it clear what his position is now in respect of that
22 article and on what basis therefore the journalist should be required to
23 attend rather than the article being admitted.
24 JUDGE AGIUS: Mr. Ackerman?
25 MR. ACKERMAN: Your Honour, this morning is a difficult morning.
1 And let me speak of that a bit. First of all, Rule 50 says that an
2 indictment may not be amended until the Chamber or a Judge thereof has
3 heard the parties. I made it clear this morning that I had not seen the
4 proposed amended indictment until 20 minutes or so before I walked into
5 this courtroom.
6 In spite of that, the Chamber decided to go forward on the theory
7 that I could be heard in the context of Your Honours' directing us through
8 the indictment. It may be the case that I have said everything that is
9 important to be said about that but I don't know because I still have not
10 had an opportunity to really go deeply into that indictment. And so just
11 for the record, I want to say that I believe Rule 50(A)(i)(c) has been
12 violated because there has been no meaningful opportunity for me to be
13 heard regarding the Prosecution's proposed amendment. In addition, I had
14 no notice whatsoever that the Randal issue would be brought before the
15 Chamber today. I have none of the documents involved. I have none of the
16 transcripts involved, I have none of the paperwork involved. And so I
17 feel uncomfortable discussing that in any detail at this point. I will
18 say this: Throughout this process, it has been the Prosecution's position
19 that they would rather have before you a misleading account of what
20 happened at that meeting rather than a true account of what happened at
21 that meeting. The article written by the other journalist is a full
22 account setting both the context of that meeting and setting forth what
23 Mr. Brdjanin was asked and what he said. It is the account which gives
24 you the truth of what was going on and with that account, the Prosecution
25 can then not argue that it has anything to do with this case. The only
1 way the Prosecution can argue that it has anything to do with this case is
2 if the Randal article comes in, which is incomplete and does not set the
3 context. So that's the first thing. I have no objection to the article
4 the other journalist wrote coming in because it is complete. And that's
5 the evidence that should be before Your Honours. Now, the second thing.
6 Ms. Korner complains about my e-mail to the lawyers representing Randal.
7 That e-mail was designed to correct what was a misleading impression that
8 was being given to the Appeals Chamber by the Prosecutor, and I thought it
9 was outrageous and inappropriate for the Prosecutor to so mislead the
10 Appeals Chamber and I therefore sent an e-mail to the lawyers for Randal
11 saying the Prosecution's assertion that there is no other source for this
12 evidence is not true. And they are misleading the Appeals Chamber by
13 saying that because I have already told the Prosecutor that I would accept
14 the article written by the other journalist. It is an acceptable source,
15 another source, of that evidence and it's the appropriate source of that
16 evidence. And now for Ms. Korner to come in here today and accuse me of
17 some kind of wrong doing I find outrageous. The wrong doing was on her
18 part for misleading the Trial Chamber to the proposition that there is no
19 other source of this evidence. There is another source.
20 JUDGE AGIUS: Not the Trial Chamber the Appeals Chamber.
21 MR. ACKERMAN: The Appeals Chamber. And I felt compelled to let
22 the lawyers for Randal know about that. And that that was misleading and
23 that was an untrue statement to the Appeals Chamber. I do not want to
24 discuss it further without consulting the documents and if you want me to
25 discuss it further after having done that, I'm perfectly willing to do so.
1 JUDGE AGIUS: Ms. Korner?
2 MS. KORNER: I'm not going to respond to the sort of invective
3 that's being used because it's unnecessary. But it is actually a very
4 simple question and I think it is one that needs to be answered straight
5 away before the Appeals Chamber spends any longer on this. Is the
6 accuracy of the quotes that appear in Mr. Randal's article a subject
7 matter of dispute? That's the only question I'm asking, and that,
8 Mr. Ackerman, regardless of anything else, must be able to answer and he
9 appears to have already answered it in the e-mails but it must be put on
11 JUDGE AGIUS: Yes. Assuming that stage is reached and surpassed,
12 it seems to me, from what I have read, that in any case, Mr. Ackerman
13 would require the presence of Mr. Randal here for cross-examination. At
14 that point in time, or should that be so, is it your responsibility, is it
15 the Prosecution's responsibility, to procure, assuming that the article
16 itself is first admitted in evidence, would it remain your responsibility
17 to bring forward Mr. Randal to be cross-examined by Mr. Ackerman?
18 MS. KORNER: No, Your Honour, it wouldn't, because as I said, our
19 interest was only that the article was admitted and that the accuracy of
20 the quotes was not in dispute. Thereafter, if Mr. Ackerman wished to
21 secure the attendance of Mr. Randal, it would be a matter for him. We are
22 only required to call evidence -- to call witnesses if we want to put in
23 that witness's evidence.
24 JUDGE AGIUS: Exactly.
25 MS. KORNER: And we don't.
1 JUDGE AGIUS: I'm trying to make things clear because at that
2 point in time, the conclusion, if what you have just stated is correct,
3 the conclusion would be twofold. Number 1, that the whole process of
4 subpoenaing Mr. Randal for the purposes mentioned or indicated in that
5 subpoena would no longer hold water.
6 MS. KORNER: Correct.
7 JUDGE AGIUS: Number 2, there may still be the need for a subpoena
8 to be issued against Mr. Randal if Mr. Randal refuses to turn up to be
9 cross-examined by you on whatever it is you want to cross-examine him
10 upon. And that would potentially bring us back to square one. So
11 Mr. Ackerman?
12 MR. ACKERMAN: Well, Your Honour, if we are talking about
13 resources and the efficient and proper use of resources, we should leave
14 the matter as it stands because it makes no sense to restart this whole
15 process and go through all of that all the way up through the Appeals
16 Chamber again because Mr. Randal will again oppose the subpoena.
17 JUDGE AGIUS: I think -- I think, I don't know, I don't want to
18 overstep in any way, but as I see it, we could be really wishful thinking,
19 doing some wishful thinking that this may be solved in the way that maybe
20 has been understood or has been suggested because in reality, if I read
21 you well, irrespective of the position that you are taking vis-a-vis his
22 article as a stand-alone article or in juxtaposition with the article of
23 the other journalist, as I read you, you still want to cross-examine the
25 MR. ACKERMAN: If his article is going to come into evidence, Your
1 Honour, his article is less reliable than a 92 bis statement. I can have
2 those people brought for cross-examination.
3 JUDGE AGIUS: But then you're forcing my hand and I will
4 essentially come to the conclusion that I need to give you a time limit
5 within which you have to confirm officially to this Trial Chamber what you
6 may have written in the e-mail, and specifically asking you to declare
7 whether you are accepting on the face of it the correctness of the quotes
8 attributed to your client reserving of course any further right you may
9 have to cross-examine the witness on whatever you would like to
10 cross-examine him on, because that will impact on the possible decision
11 that we may need to take as to whether to allow the document in evidence
12 or not. And also, irrespective of whether there should be the other
13 article that you refer to, of X, in other words.
14 MR. ACKERMAN: I think I've said all I can safely say about that
15 right now, Your Honour.
16 JUDGE AGIUS: All right. Then --
17 [Trial Chamber confers]
18 JUDGE AGIUS: So, Mr. Ackerman, it is the decision of this Trial
19 Chamber to give you until 11.00 of tomorrow morning to file a declaration
20 specifying whether you still contest the accuracy of the quotes attributed
21 by Mr. Randal in his article to your client, and secondly, should you no
22 longer contest the accuracy of those quotes, whether you require the
23 attendance, the presence, of Mr. Randal here for the purposes of
24 cross-examining him on whatever you think you may need to cross-examine
25 him upon.
1 And following that, we will communicate the -- your statement then
2 to the Appeals Chamber. We are not going to -- I'm not going to entertain
3 any further arguments on respective accusations of misleading, et cetera,
4 so that is being left apart.
5 Now, I have missed -- one moment.
6 JUDGE AGIUS: [Microphone not activated] Would you like to raise
7 any further matters?
8 MS. KORNER: Your Honour, a couple, if I may, the first is this.
9 Mr. Ackerman was -- e-mails are the topic of the moment, sent an e-mail by
10 us to the United States last week requesting an answer about two of the
11 Rule 92 bis witnesses that he had not objected to but that objection had
12 been made on behalf of General Talic. That is 7.191 and 7.192. And
13 again, Your Honours, because we are trying to organise witnesses, Your
14 Honours ordered that each appear for cross-examination, limited to one
15 hour, but there was, as I understood it, no objection on behalf of
16 Brdjanin to these witnesses so we would like to confirm that that still
17 stands, and that they can be entered under Rule 92 bis.
18 JUDGE AGIUS: Mr. Ackerman?
19 MR. ACKERMAN: I don't know why this is being brought to your
20 attention, I discussed it with Ms. Korner and Ms. Gustin this morning and
21 I told them that I had left these in Texas and that if they would tell me
22 I would look at them and let them know today what my position was. I
23 don't know why it has to be brought to your attention.
24 JUDGE AGIUS: So I take it you'll be acting on this and that you
25 will be cooperating with him again. Thank you.
1 MS. KORNER: Your Honour, then, this, Your Honour promised, said
2 that you would let us know about this November -- these November dates.
3 JUDGE AGIUS: Yes. I have not discussed that with my colleagues
4 as yet. I promise you we'll come back to you on this later on this week.
5 MR. ACKERMAN: Well, let me just make sure that I make it clear
6 that I would object strongly to any change being made in the schedule. I
7 have matters scheduled in the United States, including some medical
8 matters, during that time, and I see no reason for changing it. I think
9 we are shortening up the trial a great deal with the severance and I don't
10 think that we need to recover time, and I would strongly urge that the
11 schedule as published be followed.
12 MS. KORNER: Well, Your Honour, it's entirely a matter for Your
13 Honours but I would say this. The idea of co-counsel is that one counsel
14 has to be absent, the other counsel can take over and indeed Your Honour
15 has confirmed with Mr. Ackerman and I think it was Mr. Zecevic at the
16 time, that if they had been to be absent someone else could take over.
17 That's all I want to say on that.
18 JUDGE AGIUS: All right.
19 MS. KORNER: Your Honour --
20 JUDGE AGIUS: Yes, Mr. Ackerman?
21 MR. ACKERMAN: Well, there is this -- I just have to say this.
22 There is this proposition that has been asserted a few times by the
23 Prosecutor that the idea of co-counsel is that there will be somebody to
24 take over if one or the other can't be here. If you look at the directive
25 of assignment on counsel, the idea of co-counsel is to be provided in a
1 case that is sufficiently complicated that it requires two attorneys to
2 handle it. The directive assumes that co-counsel will not be provided in
3 every case but only in those cases that are sufficiently complicated to
4 require two lawyers to handle it and it never in the directive or in any
5 other writings that have come from the registry or the Tribunal, as far as
6 I know, has it been seen as a tag-team situation with co-counsel -- if one
7 is absent, the other can be present. That can happen on occasion, there
8 is no question about it, but that's not what the idea was. That's not why
9 it was instituted.
10 JUDGE AGIUS: Yes.
11 MS. KORNER: Your Honour, it's a matter for Your Honours I just
12 wanted to know so we can organise witnesses.
13 JUDGE AGIUS: It is indeed.
14 MS. KORNER: Finally, Your Honours, it's this, it's along the same
15 lines of what Mr. Ackerman has just been saying. Is it Your Honours'
16 intention to limit the time in which the Prosecution will be allowed to
17 present its case? Because that is something we must know.
18 JUDGE AGIUS: Maybe again that is something that I have on my
19 agenda to discuss with the other two judges. And it in addition to what
20 you have just stated, we may have news to communicate to you later on with
21 regard to Prijedor, giving that substantial amount of evidence is -- has
22 been and still being given in the Stakic case.
23 MS. KORNER: It's finished, Your Honour.
24 JUDGE AGIUS: It's finished?
25 MS. KORNER: Yes, Stakic closed its case last Friday.
1 JUDGE AGIUS: So we need to discuss amongst ourselves first and
2 then we will -- we may eventually come to the conclusion of limiting your
3 time. However, before this is the last point that I had on my agenda
4 gentleman which I was going to refer you to. When we last met it was
5 understandable and we wouldn't have considered it to be otherwise
6 possible, to have some time during which you would reorganise sort of your
7 case now that General Talic is no longer in it. And this last week was
8 supposed to serve precisely that purpose. It didn't -- we didn't mean to
9 say, and I suppose you didn't mean to take it that this week would be
10 sufficient, would be enough, but it would be the beginning of a process,
11 an ongoing process, which you would undertake to realign the whole
12 strategy, number of witnesses, et cetera.
13 I think you now owe us some kind of an indication as to whether
14 the exercise -- this exercise that you should have started during the past
15 week is indicative of any substantive or substantial change in the
16 expectations or forecasts of this Tribunal with regard to the duration and
17 progress of this case.
18 MS. KORNER: Your Honour, as Your Honour rightfully said, we
19 spent a goodly proportion of last week when we weren't or when I wasn't in
20 the Appeals Chamber, considering how to present this case. We have
21 reached certain preliminary conclusions, particularly in respect of
22 whether we now proceed to call evidence in relation to all the
23 municipalities. We have already I think told Your Honours and the Defence
24 that we were reducing the amount of evidence for certain municipalities
25 that would be reduced to one or two witnesses. But it's I'm afraid a bit
1 of a chicken and an egg situation. In other words we need to know for
2 sure whether we are going to be told your case must end by a certain date
3 because in each case, the difficulty is that there is cogent evidence, we
4 would submit, because we have reached certain preliminary conclusions and
5 we hope it to finalise them today, after Your Honours have sat. Can I
6 just say this about Prijedor, though? The whole way it's developed is
7 highly unfortunate that these witnesses have been testifying, some of them
8 for the second or third time in Stakic. But it is we would submit really
9 one of the most important municipalities that Your Honours are going to
10 hear about. We would say that if anything is genocide, what happened in
11 Prijedor was genocide. And we have the same problem as to how we are
12 going to deal with this as indeed, and I accept entirely, does
13 Mr. Ackerman, who has to look through transcripts of all these witnesses'
14 testimony. But I don't know what Your Honours have in mind on that but we
15 would submit that we should be permitted to call the evidence that we've
16 listed. It's a culling already of a great deal of evidence, but it really
17 is an important municipality.
18 As to any other aspects of this case, it will make a difference,
19 it's rather more difficult to formulate the precise method of doing it
20 without longer time which I'm not asking for any time off, we will deal
21 with it in the periods when we are not in court, exactly to what extent we
22 need the military evidence in the same fullness that we would have
23 certainly called it were General Talic an accused in this trial. For
24 example, I can say straight away it's highly unlikely that the expert
25 military witness who is listed will be called. But for the moment, all we
1 can do is say that certainly Kljuc will proceed as anticipated and we
2 would wish to proceed with Prijedor in the same way. But Your Honour,
3 anything else, I think really, we have to know whether we are going to be
4 given, as it were, a time limit.
5 JUDGE AGIUS: Mr. Ackerman?
6 MR. ACKERMAN: Your Honour, let me just -- I think I've said it
7 before but I want to say it again. Prijedor is a potential nightmare for
8 us in the sense of the enormous amount of material that's available for
9 each of the witnesses, the Prosecutor intends to call. And I haven't yet
10 figured out how we are going to get through that material and be prepared
11 to cross-examine those witnesses at the time they come. It may very well
12 be that that schedule break that we have in November would be a good time
13 to get through a large portion of that material, at least. It certainly
14 can't be done while I am busy preparing for each witness as we go on with
15 the trial.
16 But it's a monumental undertaking and when Your Honours see the
17 amount of testimony that has already been taken from some of these
18 witnesses, you will understand what I'm talking about. And I couldn't
19 possibly ethically not go through that material before I cross-examine any
20 of these witnesses so I don't know how we are going to work that out but
21 it's something that I need to you understand is a big problem.
22 JUDGE AGIUS: How many witnesses of Prijedor, I mean, in addition
23 to the witnesses that have given evidence or let's -- let me phrase it in
24 a different manner. Do you intend to bring forward all the witnesses that
25 have given evidence in Stakic? Or some of them?
1 MS. KORNER: No, Your Honour, some. There is a list that's
2 already been prepared, I'm not sure we've handed it in. There are I think
3 only about off the top of my head, three or four witness who have never
4 testified before. Every other witness has testified in at least one
6 JUDGE AGIUS: So there is a number of witnesses that have
7 testified in Stakic who you want to bring over.
8 MS. KORNER: Yes.
9 JUDGE AGIUS: To testify here. There is a number, a small number
10 of witnesses, that haven't testified in Stakic that you would like to
12 MS. KORNER: But have testified in one of the other cases.
13 JUDGE AGIUS: All right.
14 MS. KORNER: As I say, Your Honour, I think there are literally
15 only about three or four that have not testified before.
16 JUDGE AGIUS: Is there anyway we could proceed by applying any of
17 the existing provisions in the rules of guaranteeing in any case and in
18 each case a cross-examination to the Defence while doing away with the
19 need of bringing forward the witness to testify in chief? In other
20 words --
21 MS. KORNER: Put the transcripts in?
22 JUDGE AGIUS: Yes.
23 MS. KORNER: I think that would be perfectly possible. It's one
24 of the solutions we were thinking of, if that was acceptable, the
25 transcript would go in with any -- some of the witnesses will give
1 additional evidence which was not adduced in the Stakic case.
2 JUDGE AGIUS: With the understanding that should there be anything
3 in the transcripts, in the Stakic or in any other case, any reference to
4 Mr. Brdjanin, that is redacted.
5 MS. KORNER: So the witnesses would have to give that evidence
6 orally before Your Honours?
7 JUDGE AGIUS: Yes. If we could live with that, we would
8 definitely be prepared to give a limited time within which, because
9 obviously the Defence will have to go through the documentation, would
10 still spare us and save us a lot of time in examination-in-chief, if that
11 is something that you could agree upon. Something that we are obviously
12 going to think about, and this is what I meant when I said I need to
13 discuss -- this is an item that I have on the agenda for discussion with
14 my two colleagues.
15 MS. KORNER: Well, Your Honour, the other method of course is for
16 Your Honours to take note within the trial of adjudicated facts.
17 JUDGE AGIUS: Yes, that is another option that we have. This is
18 why, if you refer to what I said a minute ago, to the various options that
19 are provided under the rules. That is another option.
20 MS. KORNER: Your Honour, so far Rule 94 really hasn't been used
21 at all but it seems to me as I think we said a long time ago, for example,
22 in respects of Keraterm, I think all the other cases, save for Tadic that
23 come from this area are still awaiting appeal. But in the case of
24 Keraterm there was a plea, and if it could be -- if Your Honours were to
25 take note and the Defence didn't wish to challenge the facts that are
1 were -- the agreed facts of that plea, that would save obviously having to
2 call any witnesses at all.
3 JUDGE AGIUS: Agreed facts in a plea, I wouldn't -- I would rather
4 be cautious about.
5 MS. KORNER: Well, Your Honour, but it was incorporated into the
6 judgement, so it's adjudicated facts.
7 JUDGE AGIUS: It is an adjudicated fact because the two parties
8 agreed upon them. But as far as Brdjanin is concerned, that would be what
9 in Latin my ancestors would say, res inter alios acta something that has
10 been agreed upon by others with whom he has got no association. Yes, you
11 have, because you were a party, the Prosecution.
12 MS. KORNER: Well, Your Honour, can I just say this? Taking
13 Mr. Ackerman's point, if the answer is that he won't -- we anticipate
14 starting Prijedor at the end of this month, give or take.
15 JUDGE AGIUS: I would expect you to, yes.
16 MS. KORNER: Therefore, we haven't yet notified any of the
17 witnesses when they are required to attend it. At least I don't think we
18 have but if Mr. Ackerman is saying that he wants to break in November to
19 look at all of that, and wants us not to call any evidence on Prijedor,
20 then we will have to skip Prijedor again and move on to one of the other
21 municipalities we know definitely we will still be calling evidence on.
22 JUDGE AGIUS: That could also be another alternative.
23 MS. KORNER: But again we need to have that very effectively we
24 need to know by tomorrow if Mr. Ackerman is going to say because of the
25 huge amount of documentation, I won't be in a position to deal with it
1 until after the November break.
2 JUDGE AGIUS: By tomorrow, Mr. Ackerman has still got to read the
3 Randal papers, which I hope he has here in The Hague and not left back in
5 MR. ACKERMAN: They are here, Your Honour, and I certainly will
6 have that done by 11.00 tomorrow. With regard to this Prijedor issue,
7 just off the top of my head, I see absolutely no reason that I would
8 oppose the transcripts as you have redacted, as you've suggested, coming
9 in as the Prosecution's direct evidence with whatever additions Ms. Korner
10 needs to make. In other words we don't have to repeat what's already
11 been said in Stakic to Your Honours just to take up time. As long as I
12 have a full opportunity to cross-examine. With regard to getting through
13 the material --
14 JUDGE AGIUS: Sorry, Mr. Ackerman, I know I'm doing something a
15 little bit abrupt but I would like to stop you here and add something. We
16 all know that there may also be in those transcripts, in that evidence,
17 evidence directed against Stakic which may not be exactly desirable to
18 retain, because it may shed -- it may create an environment, an
19 impression, that may not be helpful to Mr. Brdjanin unless it is relevant
20 to Mr. Brdjanin, okay? So that is also something that you may meet
21 together upon and if there is agreement, I'm sure there will be reference
22 specific reference to Mr. Stakic that we don't need to have in the
23 transcripts. And there may be references to Mr. Stakic that we may need
24 to retain in the transcript. So this is, again, another piece in the
25 exercise that I would like you to undertake together.
1 MR. ACKERMAN: I can tell Your Honour that I have already started
2 the process of going through that material. I'm basically finished with
3 one of the witnesses already. But what I now realise if we are going to
4 do that, that I need to do, is go back through that process again and just
5 note those parts that you just talked about that are totally irrelevant to
6 the Brdjanin case and probably should be redacted along with any reference
7 to Brdjanin. Chances are we can get through that. I think we could
8 probably do that quicker than we could actually bring the witnesses here
9 and have them sit here for two or three days while the direct is
10 repeated. I think it's a good idea and I think we can probably pull it
12 JUDGE AGIUS: Definitely, definitely. So we will be meeting in
13 the course of this week to decide on this -- these issues. It would be
14 very helpful to us if you could also meet in the meantime and at least
15 agree -- stick to Prijedor for the time being -- agree on principle, in
16 principle, that we could adopt this procedure, in other words having the
17 transcript, the evidence given by these witnesses in other cases admitted
18 with redactions as the examination-in-chief, meaning also that you still
19 have a right to put some additional questions should that be necessary,
20 should you feel the need for those, and of course, reserving the
21 cross-examination for the Defence in each and every case, unless that is
22 waived because I may also figure that there may be some instances where
23 cross-examination is not needed. Maybe, I don't know, but I mean that --
24 MS. KORNER: Well, Your Honour, we will be putting in, in any
25 event, we haven't yet served the motion with the Prijedor Rule 92
1 witnesses. In fact the whole thing may become a slightly mixed exercise
2 because it's the same thing for most of them. It will be transcripts that
3 we want to enter into evidence.
4 JUDGE AGIUS: There may be a problem should this arise. I would
5 imagine that some of these witnesses gave evidence in closed session in
6 Stakic and in others?
7 MS. KORNER: I think, no, anything I'm sorry, for the witnesses
8 we have intended to call we have orders from Stakic for disclosure. We've
9 dealt with that, sorry. We've dealt with that, Your Honour.
10 JUDGE AGIUS: All right.
11 MS. KORNER: When we knew that we were going to use it, with one
12 exception I think there is still one outstanding we need to go back to
13 Judge Schomburg about.
14 JUDGE AGIUS: I'm asking you because in my mind I had that
15 impression but I wanted confirmation of it. Witnesses giving evidence in
16 other cases, is it the same or do you require --
17 MS. KORNER: Any -- no, Your Honour we have obtained from all
18 other Trial Chambers where these witnesses testified even the non-existent
19 Tadic one for which we had to apply to Judge Jorda the orders for
21 JUDGE AGIUS: Okay. So if -- I suggest you try and meet as early
22 as you can, without any involvement of the Trial Chamber or its staff for
23 the time being, then if you reach some kind of agreement, may I kindly ask
24 you to incorporate it into -- in a joint memo to the Trial Chamber, and if
25 there are points on which there is disagreement, then please indicate
1 those as well in the memo to the Trial Chamber so that if necessary, we
2 will reconvene -- we will either discuss them in -- during a normal
3 session or we will reconvene another short Status Conference and discuss
4 them in the Status Conference?
5 MS. KORNER: Yes, can I just ask one last question? I think I've
6 had it confirmed but we have had so many different times of sitting and
7 days of sitting it is not possible, as I understand to find a court to
8 sit this Friday.
9 JUDGE AGIUS: No. Apart from the fact I wouldn't like to go
10 public in this.
11 MS. KORNER: I think you are public.
12 JUDGE AGIUS: But can we go into closed session for one minute or
13 private session for one minute?
14 [Private session]
9 [Open session]
10 JUDGE AGIUS: So we would very much appreciate if you could find
11 some time and meet on this, come back to us with points of convergence and
12 points of divergence. If necessary, we will intervene to make you get
13 nearer to one another on this, Prijedor in particular, because I am sure
14 that we will economise on the Tribunal's resources and on time
15 considerably if we resort to this procedure. Thank you.
16 MR. ACKERMAN: Your Honour, my guess is that once we break, I can
17 walk over to Ms. Korner's table over there and we will agree on that
18 procedure. The thing that will cause trouble, and that the Chamber will
19 no doubt have to become involved in, is the redactions because we probably
20 won't agree on all of those.
21 JUDGE AGIUS: But we can start with the first witness,
22 Mr. Ackerman, that is an ongoing process. That is an ongoing process. I
23 mean, we would be in a position to contribute there as well because
24 although the whole idea is not to stop, bring in the bulk of this evidence
25 and go through it as a first exercise, we will do that as we go along,
1 witness by witness. The important is perhaps the first witness, what is
2 important. I mean, provided we have sufficient time limit or day or two
3 to go through that evidence, and whatever needs to be redacted, if there
4 is no agreement amongst you, will be redacted by the Trial Chamber taking
5 the safest of -- obviously trying to be -- but without prejudicing the
6 rights and the interests of the Prosecution. May I point out that any
7 cooperation between -- forthcoming from the Defence in this context will
8 not be forgotten. It will be remembered as cooperation.
9 So now before bringing the Status Conference to an end, are there
10 any further points that you would like to raise?
11 MS. KORNER: No, and as I understand it Your Honours are going to
12 let us know when you're ready to give a judgement?
13 JUDGE AGIUS: Yes, exactly.
14 Mr. Ackerman, I suppose that I will ask you the question, are you
15 aware of any complaints that your client might have regarding his state of
16 health or condition of detention?
17 MR. ACKERMAN: I'm not aware of any. You can ask him if he has
18 any. I don't think he does but he is certainly free to state them.
19 JUDGE AGIUS: I won't ask you if you are happy but I will just ask
20 you whether you have complaints, any remarks or complaints related to your
21 state of health or the conditions in which you are being kept, detained,
22 at the detention unit.
23 THE ACCUSED BRDJANIN: [Interpretation] Just now, I have none, Your
25 JUDGE AGIUS: So the Court now stands adjourned. This Status
1 Conference is over.
2 And we are immediately reconvening as a Trial Chamber and I am
3 going to proceed with the oral decision that I promised you. We are not
4 in closed session. We are in open session. We are going to proceed now
5 with your oral decision. I've got some points here from which I dictated
6 to my legal assistant earlier on. It's not to be taken as a written
7 decision. It's an oral decision.
8 So, this Trial Chamber is seized of Prosecution's request for
9 leave to amend the indictment. This specific request was filed on the 3rd
10 of October and we are also seized of an objection raised by Radoslav
11 Brdjanin, the accused in this trial, an objection to proceeding with this
12 trial under the current indictment. Needless to say, the two requests
13 converge on an essential element, namely whether the current indictment
14 should be amended or not.
15 Before proceeding any further, I would also like to add that we
16 have read and considered the Prosecution's response to the objection of
17 Radoslav Brdjanin to which I have just referred.
18 In our considered opinion, the points that need to be addressed
19 and decided are the following. Number 1, whether any or all of the
20 suggested amendments to the fourth amended indictment ought to be accepted
21 or not, approved or not. The Trial Chamber has heard submissions in this
22 regard during the Status Conference of today and comes to the following
23 conclusion. May I also points out that when I say suggested amendments, I
24 am referring to both your suggested amendments and those which are being
25 suggested by the Defence.
1 As a result of the decision of this Trial Chamber to sever the
2 trial of Radoslav Brdjanin from that of General Momir Talic, the need has
3 undoubtedly arisen to amend the current indictment. Amend it in such
4 a way as to exclude from it any specific indication that could lead to
5 understand that General Talic continues to be charged under it.
6 The Trial Chamber, however, sees no validity in the submission of
7 the Defence for Brdjanin that the removal of any mention of General Talic
8 from the indictment necessarily leads to the consequence or has as a
9 consequence the need to have deleted from the indictment also all
10 references to him, his alleged membership in the ARK Crisis Staff, his
11 command position in the military, and indeed, as has been suggested
12 earlier on today during the Status Conference, the military component of
13 the indictment itself.
14 There is no validity in our considered opinion, in the argument
15 that as a result of General Talic's removal from this case, the substance
16 of the accusations, the charges, brought against Brdjanin ought or need to
17 be impacted. The essence of the indictment is that there was a joint
18 criminal enterprise involving the political, the military and the police
19 sectors, in which Brdjanin was involved and this cannot be changed.
20 Arguing that singling out General Talic should not be allowed now that he
21 is no longer a co-accused in this case is not, on its own standing, a
22 valid argument and can only serve as a basis for having possibly inserted
23 in the indictments or in parts of it additional names, particularly of
24 other persons, allegedly involved in the joint criminal enterprise, but
25 this is not what is being sought and at the present moment or what this
1 Trial Chamber is being asked to do.
2 The first decision that this Trial Chamber therefore comes to is
3 to accept and approve the proposed amendments to the fourth amended
4 indictment, namely those proposed by the Prosecution in its request for
5 leave to amend the indictment, to which I referred to earlier. This is
6 being done by this Trial Chamber pursuant to Rule 50(A)(i)(c). The Trial
7 Chamber does not see that it would be fit and proper to include in the
8 indictment any further amendments, namely any of the amendments that have
9 been suggested by the Defence for Radoslav Brdjanin, except in so far as
10 these may converge with the amendments that are being approved.
11 Secondly, in terms of Brdjanin's objection to proceeding with the
12 trial under the current indictment, the Trial Chamber is being asked to
13 confirm that following the amendments to the indictment, he is entitled to
14 a time limit in which to file preliminary motions or pleas pursuant to
15 Rule 72 as provided in Rule 50(C). Brdjanin claims that he should be
16 given this right even if the amended indictment does not contain new
17 charges or any new charges. He contends that this would still be required
18 and he would be entitled to it in the interests of justice. The Trial
19 Chamber has no option but to reject this request. First, because such
20 time limit is allowed by the rules and applicable only if and when new
21 charges are introduced in the indictment, which we see, we understand, is
22 not the present case.
23 Secondly, because we as a Trial Chamber fail to see how the
24 interests of justice can be better served if such an opportunity is given
25 to the accused Brdjanin in the present circumstances.
1 The Trial Chamber has no doubt at all that the charges brought
2 against Brdjanin remain essentially what they have always been since the
3 fourth amended indictment was approved in December of last year.
4 The accused Brdjanin has also asked that the parties be invited to
5 make submissions on which evidence from the Brdjanin-Talic case is
6 relevant to his case and should be incorporated now in the records of his
7 case for the purpose of proceeding with his -- forward with his trial.
8 The Trial Chamber sees no point in extending any such invitation to the
9 parties, who are free to come to any agreement on this matter amongst
10 themselves if they want to or if they feel the need for it. The Trial
11 Chamber does not at this point see the need to give any directions to
12 either of the parties in this context.
13 The last request of the accused Brdjanin is that the case be
14 stayed as far as the receipt of evidence is concerned until a new
15 indictment has been filed and approved by the Trial Chamber or a Judge
16 thereof, and until accused Brdjanin has been able to exercise whatever
17 rights the rules and justice may provide him with regard to the new
18 indictment. The Trial Chamber has no option but to reject this request,
19 which in part is based on the fact of the prior filing of a new
20 indictment. This now, on the basis of this decision, is no longer a
21 problem. And in part, on unspecified possible rights which, as things
22 are, rebus sic stantibus cannot serve as a basis for such a request.
23 We therefore provide as follows: Pursuant to Rule 50(A)(i)(c) and
24 Rule 54 of the rules, we grant the Prosecution's request for leave to
25 amend the indictment as per the details incorporated in the same document
1 mentioned before. We instruct the Prosecution to file a newly signed,
2 amended version of the indictment as approved by this decision by not
3 later than 2 p.m. of today. You have it already?
4 MS. KORNER: Well, Your Honour that's the trouble. We have only
5 got the Prosecutor at the moment here. The deputy Prosecutor isn't here
6 and if Your Honours need it to be signed, I've never understood this
7 because basically you ordered the amendments.
8 JUDGE AGIUS: It's previous procedure, Ms. Korner.
9 MS. KORNER: Would Your Honours say by 4.00 today?
10 JUDGE AGIUS: That's what I had intentioned initially. I said
11 4.00 and then I decided to be a little bit --
12 MS. KORNER: I don't know where the Prosecutor is at the moment.
13 JUDGE AGIUS: Okay. So by not later than 4.00 today. Dismisses
14 Brdjanin's request to amend the indictment in so far as these requests do
15 not converge with the amendments that are being approved by this
16 decision. Dismisses Brdjanin's objection to proceeding with the trial
17 under the current -- sorry, dismisses Brdjanin's request to stay
18 the receipt, the receipt of evidence as requested in his -- in the
19 document aforementioned. And declines to extend the invitation requested
20 by Brdjanin in his motion to the parties to make submissions on which
21 evidence from the Brdjanin-Talic case is relevant to his case and should
22 be incorporated in the records of this case as it now stands.
23 That's the position. Now, it's almost 12.30. What do you propose
24 to do? What are your suggestions?
25 MS. KORNER: In relation to what, Your Honour?
1 JUDGE AGIUS: My suggestion is that we should wait to have the
2 indictment signed and refiled properly, and then we proceed with the
3 witness tomorrow.
4 MS. KORNER: Yes.
5 JUDGE AGIUS: That's our preference frankly because to proceed
6 otherwise would be rather undesirable.
7 MS. KORNER: Yes. Your Honour, can I just make -- mention one
8 thing? That is, Your Honour, in the beginning of the judgement stated:
9 "The Trial Chamber however sees no validity in the submission of the
10 Defence for Brdjanin that the removal of any mention from General Talic
11 from the indictment necessarily leads to the consequence or has as a
12 consequence the need to have deleted from the indictment also all
13 references to him." Just so it's clear Your Honour is saying that the
14 removal of any mention of General Talic as an accused person?
15 JUDGE AGIUS: Of course.
16 MS. KORNER: I'm sorry it's just -- it's for clarity's sake.
17 JUDGE AGIUS: The whole argument, I don't think we should really
18 amplify because this is a position you take under indictment of course
19 which the Trial Chamber obviously has to respect as part of the indictment
20 and --
21 MS. KORNER: Your Honour I just wanted -- I just wanted to make it
22 absolutely clear.
23 JUDGE AGIUS: It is as you state.
24 MS. KORNER: That's right. Thank you. And as far as Your Honour
25 goes, certainly, tomorrow.
1 JUDGE AGIUS: Tomorrow we start with the first witness? Is he a
2 protected witness? I went through his statement yesterday.
3 MS. KORNER: Apparently not. I can't remember who it is.
4 JUDGE AGIUS: May I suggest to you if you haven't read his
5 statement -- have you read his statement? I don't know if we could spare
6 him having to go through some of the events. If we could agree on that
7 and stick to the basics, I think it would be better. Because it's another
8 of those sad stories and having to relive those moments again.
9 MS. KORNER: Yes, Your Honour, I think Your Honour is perhaps --
10 a lot of these witnesses actually want to tell the Court what happened
11 because they fear.
12 JUDGE AGIUS: I won't stop him. I won't stop him. It's just if
13 the need arises.
14 MS. KORNER: Absolutely, yes.
15 JUDGE AGIUS: If the need arises. Yes, Mr. Ackerman?
16 MR. ACKERMAN: Well, I'm sure I wouldn't have any objection to an
17 agreement to save him having to go through some these things.
18 JUDGE AGIUS: No, of course. You have a right.
19 MR. ACKERMAN: I did want to ask, do you intend to follow up the
20 decision on the indictment with a written decision or will your oral
21 decision be your decision.
22 JUDGE AGIUS: No. If you ask for it we may entertain the idea but
23 I think the whole idea it was give an oral decision.
24 MR. ACKERMAN: I'm not asking for it. I'm just asking.
25 JUDGE AGIUS: We are not bound actually to follow up always with a
1 written decision. I mean the whole idea is to spare, economise on our
2 resources as much as we can and move ahead. It doesn't mean to say that
3 if you would like to ask for certification you're not being given the
4 opportunity. I mean obviously.
5 MR. ACKERMAN: I just was inquiring because of the language of
6 Rule 73 as to whether or not there would be a follow-up decision written.
7 JUDGE AGIUS: So shall we leave it at that and adjourn? I thank
8 you for all your contributions and cooperation this morning, without which
9 we would have certainly got stuck, and we will resume tomorrow morning
10 with our labours. I thank you.
11 MS. KORNER: Your Honour, I just received -- before we rise, I've
12 received a request or rather Your Honours will be getting an oral motion
13 tomorrow morning, the witness who has arrived as Your Honour knows it
14 sometimes happens is going to be requesting protective measures although
15 they are not present at the moment but I'll leave it to you. It's
16 Ms. Richterova who is calling the witness and I leave to her to deal with
18 JUDGE AGIUS: Does it include also a request for a closed
20 MS. KORNER: No, pseudonym and distortion.
21 JUDGE AGIUS: Okay. In the meantime, since I think I owe it to
22 Mr. Ackerman, you recall that sometime back, about a week and a half ago
23 or two weeks ago, I was complaining about the fact that the assessment
24 made by this Tribunal as to the risk involved or run by witnesses coming,
25 forthcoming from the various municipalities went back to about two years
1 to the year 2000 and would have felt happier if we had an updating of
2 that. But you know, I don't know if Mr. Ackerman knows that a document
3 did eventually get to us which is an update of the situation. I don't
4 know whether that has been circulated, whether it has been made available
5 to you. If not, I will instruct Madam Registrar, please, to dig up that
6 document. I have it in my chambers and my secretary knows exactly where
7 it is, and you have my permission, my authorisation to have it copied --
8 MS. KORNER: I think Your Honour it's a motion. Mr. Ackerman may
9 not -- I can't remember how long it is since he went to the States but it
10 is put in by motion, confidential, so Mr. Ackerman should have a copy.
11 JUDGE AGIUS: I don't know whether it was put by motion.
12 MS. KORNER: Yes, it was, yes, it was. It was, Your Honour.
13 JUDGE AGIUS: It is confidential for sure that's for sure.
14 MS. KORNER: But it goes to the Defence, it doesn't go to the
15 general public but it goes to the defence.
16 JUDGE AGIUS: I see. Okay. So then if you perhaps check. If you
17 don't have it Mr. Ackerman I will let you have a copy of it.
18 MR. ACKERMAN: I don't recall seeing it but it may be here
19 somewhere. There was a bunch of stuff in my box that wasn't sent to me in
20 Houston I discovered this morning. I don't know why it wasn't.
21 JUDGE AGIUS: Discrimination.
22 MR. ACKERMAN: Obviously, Your Honour, when are we sitting
23 tomorrow, are we sitting in the morning.
24 JUDGE AGIUS: We are sitting in the morning. The timetable is
25 this. I tried as much as possible to shift afternoon sittings to the
1 morning wherever possible because I think that helps everyone.
2 MS. KORNER: Your Honour it would help, I know we've all been
3 asking for morning sittings but the changes, the constant changes in
4 when we are sitting really do not assist on witnesses. I appreciate that
5 Your Honours kindness in trying to arrange morning sittings but we
6 expected this afternoon so as a result we have got the witnesses here to
7 give evidence this afternoon. We weren't expecting this morning until
8 whatever it was, Thursday of last week, and so just in order to organise
9 the witness schedule it helps if we can stick to a schedule.
10 JUDGE AGIUS: Okay. This morning we are sitting Monday, Tuesday,
11 Wednesday in the morning and Thursday we are sitting in the afternoon, all
12 right? Good. I thank you. And good afternoon to you.
13 --- Whereupon the Status Conference adjourned
14 at 12.31 p.m., to be reconvened on Tuesday,
15 the 8th day of October, 2002, at 9.00 a.m.