Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20779

1 Thursday, 9 October 2003

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.53 p.m.

6 JUDGE AGIUS: [Microphone not activated] Yes. Could you call the

7 case, please, Madam Registrar.

8 THE REGISTRAR: Yes, Your Honour.

9 Good afternoon, Your Honours. This is the case number,

10 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.

11 JUDGE AGIUS: I thank you, Madam Registrar.

12 Mr. Brdjanin, good afternoon to you. Can you follow the

13 proceedings in a language that you understand?

14 THE ACCUSED: [Interpretation] Good afternoon, Your Honour. Yes,

15 I can follow you in the language I understand.

16 JUDGE AGIUS: I thank you.

17 Now, I have a long list, I see, on both sides. Appearances for

18 the Prosecution.

19 MS. KORNER: Your Honour, we couldn't resist it on a day like

20 today. Joanna Korner, assisted by Ann Sutherland, Julian Nicholls, and

21 Colin Black, Your Honours may recall, to do the journalist case. He had a

22 great deal to do with the writing of the brief. And also, as ever, Denise

23 Gustin, case manager.

24 JUDGE AGIUS: I thank you, Ms. Korner, and welcome back.

25 Appearances for the Defence.

Page 20780

1 MR. ACKERMAN: Good afternoon, Your Honours. It's nice to see

2 you all again.

3 JUDGE AGIUS: Same here.

4 MR. ACKERMAN: I'm glad to be back. My name is John Ackerman, in

5 case you've forgotten.

6 JUDGE AGIUS: Speak for yourself.

7 MR. ACKERMAN: I represent Mr. Brdjanin. I'm here with

8 Aleksandar Vujic, our case manager, and the person sitting next to him is

9 not David Cunningham. Mr. Cunningham left this morning for the United

10 States. I'd like you to meet Ross Pytlik. Ross is a student at Hastings

11 University in -- in San Francisco, California and is here as an intern

12 with our team for a while, for a few months. And so he's come to court

13 with us today. Thank you.

14 JUDGE AGIUS: I thank you. And welcome, Mr. Pytlik.

15 And welcome, Mr. Black.

16 So I think we have a pretty much specific programme to go through

17 today. We will start with the oral decision on the Rule 98 bis motion.

18 And then we'll proceed from that.

19 So this is an oral decision on the confidential motion for

20 judgement of acquittal under Rule -- filed under Rule 98 bis. And which

21 was actually filed on the 22nd of August of 2003, to which the Prosecution

22 filed a confidential Prosecutor's response to defendant Radoslav Brdjanin

23 on the 5th of September and -- and then this was followed by a public

24 Prosecutor's motion in respect of a response to the accused's motion on

25 the 2nd of October.

Page 20781

1 As you may imagine, the written decision, as we had explained

2 before the summer recess, will -- will follow this oral decision. I can't

3 tell you the specific date, but I should be able to tell you exactly when

4 the -- when to expect the written decision. It's being worked upon, and

5 it's already at a pretty advanced stage. And I also need to advise you

6 straight away that only the written decision will be the authoritative

7 document on the Rule 98 bis motion.

8 One other preliminary thing that I think I should make clear is

9 that today's oral decision is being limited to the basic dispositions

10 related to the various counts of the indictment, and specifically arising

11 from the submissions of the accused based in the motion under Rule 98 bis

12 that there should be an acquittal on each count. As you are aware,

13 various points of law were raised, both by the Defence and by the

14 Prosecution in the documents that were filed. These have all been

15 considered -- given due consideration by the Trial Chamber in its -- in

16 our discussions and deliberations. Of course, you don't expect us to say

17 anything much about these -- our decisions on these points of law now in

18 this oral decision, because as I explained, this is more or less -- we are

19 pronouncing ourselves on the -- whether there should be an acquittal on

20 each and every count and not much more, but there are some points, some

21 relating to some issues that were raised that we will need to touch upon

22 as we go on this afternoon. All these point will be addressed fully in

23 the written decision.

24 The first thing -- or the first matter that we need to make clear

25 is that in our deliberations and in our decisions we based ourselves on

Page 20782

1 the standard that has been established more or less and which has been

2 referred to and agreed to by both of you. That's the standard set down in

3 the Jelesic Appeal Chamber decision of the 5th of July, 2001. I don't

4 think I need to read the standard. You are aware of it. And you

5 have basically agreed, both of you, that this should be the standard that

6 the Trial Chamber was expected, according to you, to follow.

7 There are some preliminary matters that we took into

8 consideration and which I am going to hint at, and that's mainly the fact

9 that as it arises from your motion, Mr. Ackerman, the Defence was not

10 contesting the occurrence of certain specific incidents alleged by the

11 Prosecution in the indictment, not challenging, not contesting that they

12 may have taken -- or that they have taken place.

13 In addition to this, however, we have carried out a complete

14 exercise ourselves over and above your declaration, and one of the basic

15 conclusions that we come to at this stage and for the purpose of Rule 98

16 bis standards only is that we find that a reasonable trier of fact could

17 find the Prosecution evidence on these facts as sufficient to -- to

18 sustain a conviction beyond reasonable doubt if, of course, the other

19 ingredients of the offences are satisfied.

20 One of the focal points that conditioned more or less the whole

21 exercise, the entire exercise that we embarked upon was Appendix C which

22 was appended to the Prosecution's response. And in it the Prosecution

23 conceded that sufficient evidence had not been produced with regard to a

24 number of criminal acts charged in the indictment. This appendix was

25 divided into two parts. The first part, which is referred to as part A,

Page 20783

1 relates to criminal acts -- all criminal acts in the municipalities of

2 Bihac-Ripac, Bosanska Dubica, and Bosanska Gradiska.

3 The second part, which I will be referring to as appendix -- as

4 part B of Appendix C, related to the destruction and willful damage of

5 Bosnian Muslim and Bosnian Croat religious and cultural buildings, as

6 charged in paragraphs 47(3)(b), 62 and 63 of the indictment.

7 As you can certainly imagine -- as certainly you are aware, the

8 legal consequences of Appendix C of these concessions, which the

9 Prosecution made, the legal consequence is that some counts of the

10 indictment are necessarily -- are necessarily affected, and we are going

11 to start precisely with this. For the purpose of brevity, the concessions

12 will be dealt with together, rather than addressing parts A and B

13 separately. So we're putting everything in one basket, and you will

14 understand immediately why and how.

15 I will refer you straight away to paragraph 38 of the indictment,

16 which concerns killings. The Trial Chamber on the basis of Appendix C

17 finds that there is no case to answer with regard to the killing of a

18 number of people in -- I am quoting from the indictment -- "The killing of

19 a number of people in the market place and surrounding area in Bosanska

20 Gradiska town on or about August 1992, Bosanska Gradiska municipality."

21 I see you taking notes, Mr. Ackerman, and probably you will be

22 doing the same. At the end of the sitting, these notes that I have which

23 are the basis of the oral decision, I will make them available to both of

24 you so that it will make your life easier. Okay?

25 MS. KORNER: Thank you very much, Your Honour.

Page 20784

1 JUDGE AGIUS: So in the meantime I will -- I will be able to

2 maintain a constant speed. So in paragraph 38, the Trial Chamber finds

3 that there is no case to answer with regard to the killing of these people

4 in Bosanska Gradiska, as well as the killing of a number of people in the

5 villages of Orasce and Duljci between the 20th and 23rd of September,

6 1992. This is in Bihac and Ripac municipality. As a consequence, a

7 decision of acquittal is being taken with respect to these two incidents

8 under counts 1, genocide; under count 2, complicity in genocide; 3,

9 persecution because of the cross-reference that there is; 4, extermination

10 because of the cross-reference that there is; and 5, wilful killings, as

11 well because of the cross-reference that there is. And that's the first

12 decision that we are taking.

13 MS. KORNER: Your Honour, may I -- I'm sorry to interrupt. May I

14 just for the purpose of the record make this clear. Your Honour is not

15 acquitting Mr. Brdjanin of the count but merely --

16 JUDGE AGIUS: No, of course not.

17 MR. ACKERMAN: I understand that, Your Honour. But just for the

18 purposes of the record. But merely striking from the indictment those

19 examples which are not proved.

20 JUDGE AGIUS: Yes.

21 MR. ACKERMAN: Thank you --

22 MS. KORNER: Thank you very much. That's all I just --

23 JUDGE AGIUS: As far as, for example, if we're taking count 5,

24 wilful killings, in as far as there is pleaded that Mr. Brdjanin was

25 responsible for the killing of these people in Bosanska Gradiska and the

Page 20785

1 killing of the people in Orasce and Duljci, we are saying that there is no

2 case to answer.

3 MS. KORNER: I understand that, Your Honour.

4 JUDGE AGIUS: The rest stays. And at the end of the day we will

5 probably, as you may imagine, we will be calling upon you to put the

6 indictment in a washing machine again and --

7 MS. KORNER: Well, Your Honour, we have. And I was going to

8 raise that when Your Honour had finished.

9 JUDGE AGIUS: All right. So we are more or less on the same

10 wavelength already and it will make our life easier.

11 Paragraph 40 of the indictment, which I refer you now. In

12 paragraph 40, with reference to camps, the Trial Chamber finds that there

13 is no case to answer with regard to the alleged camps and detention

14 facilities staffed and operated by military and police personnel under the

15 direction of the Crisis Staffs and the VRS at and solely at Bosanska

16 Dubica municipality, SUP building, the SUP buildings, and Bihac-Ripac

17 municipality, Traktorski Servis and Ripac.

18 Consequently, the Trial Chamber is deciding in favour of

19 acquittal as regards these two counts under counts 1, genocide; 2,

20 complicity in genocide; 3, persecutions with regard to any incidents

21 alleged to have occurred in either of these two camps.

22 I refer you to paragraph 42 of the indictment. In paragraph 42

23 of the indictment, in the -- in the part dealing with causing bodily --

24 serious bodily harm or mental harm, the Trial Chamber finds that there is

25 no case to answer with regard to the following events. And I am reading

Page 20786

1 now from the indictment itself.

2 Bihac and Ripac. "From 9 June 1992, the village of Ripac was

3 sealed off and became a de facto centre of detention for the Bosnian

4 Muslim inhabitants. A hangar (Traktorski Servis) was utilised as a

5 detention facility for inhabitants and Bosnian Muslims from other areas.

6 Some detainees were tied up, beatings took place outside and during

7 interrogations when detainees were accused of being members of the 'Green

8 Berets.' Detainees were subject to forced labour. All detainees were

9 non-combatants."

10 Bosanska Dubica. "Between 1 April 1992 and 30 September 1992,

11 number of Bosnian Muslim non-combatants were detained by members of the

12 Bosnian Serb authorities (police forces and military). They were taken to

13 the police (SUP) building. Beatings, involving the use of fists, feet,

14 batons, electric cables and rifle butts, were administered by members of

15 the police, military police, and SDS. The beatings were both arbitrary

16 and during interrogations, the object of which was to persuade detainees

17 to confess to involvement in the activities of the SDA, a legitimate

18 political party. Some detainees were rendered unconscious as a result

19 and/or suffered serious injury. Beatings were witnessed by other

20 detainees."

21 Bosanska Gradiska. "After 15 July 1992, some Bosnian Muslim

22 non-combatants were detained by the police, reserve police and military

23 police at the school in Bistrica and the police station in Bosanska

24 Gradiska. At Bistrica and the police station in Bosanska Gradiska

25 detainees were interrogated, beaten, and tortured."

Page 20787

1 As a result, the Trial Chamber acquits the accused under counts

2 1, genocide; 2, complicity in genocide; and 3, persecutions, with regard

3 to the events just mentioned.

4 With respect to counts 6 and 7, to which these events also refer

5 - and we're talking of torture now - the Trial Chamber notes that

6 paragraph 53 of the indictment re-alleges and re-incorporates the

7 incidents in paragraph 42, including those alleged to have taken place in

8 Bihac-Ripac, Bosanska Dubica, and Bosanska Gradiska. However, the Trial

9 Chamber is not of the opinion that it needs to enter any decision of

10 acquittal with respect to these incidents under these counts because they

11 are not pleaded by the Prosecution in paragraph 55 as featuring the

12 intentional infliction of severe pain or suffering on Bosnian Muslims or

13 Bosnian Croats.

14 Paragraph 47 of the indictment, to which I refer you now. The

15 Trial Chamber has come to the conclusion with reference to this -- to

16 paragraph 47(3)(a) that there is no case to answer to the charge of

17 destruction, willful damage, and looting of the residential and commercial

18 properties in the parts of towns, villages, and other areas inhabited

19 predominantly by a Bosnian Muslim and Bosnian Croat population in: The

20 town of Ripac, Orasac, the town of Bosanska Dubica, the town of Bosanska

21 Gradiska, Liskovac, Orahovo, in respect of which incidents the Trial

22 Chamber is issuing a decision of acquittal under counts 3, persecutions;

23 10, unlawful and wanton destruction of and appropriation of property not

24 justified by military necessity; and count 11, wanton destruction of

25 cities, towns, or villages or devastation not justified by military

Page 20788

1 necessity.

2 They're always referring to paragraph 47 but a different part of

3 paragraph 47. The Trial Chamber has come to the conclusion with reference

4 to paragraph 47(3)(b) that there is no case to answer to the charge of

5 destruction and willful damage to the Bosnian Muslim and Bosnian Croat

6 religious and cultural buildings listed in part B of Appendix C to the

7 Prosecution's response, subject to the following two qualifications, which

8 I hope will be clarified within the next few minutes. I will not be

9 reading out part B of Appendix C, because I don't think it would make

10 sense. It is here, the list is here, you can actually refer to it later

11 on when I -- when I give you this document.

12 The first qualification or the first point I wanted to make is

13 the following; that going through the list Judge Janu, Judge Taya, and

14 myself noticed that Ljubija -- in Appendix C, the Prosecution refers to

15 the alleged destruction, not proven, of Ljubija mosque, Ljubija mosque, in

16 the Prijedor municipality. In reality, if you refer to the indictment

17 itself, paragraph 47(3)(b) where it refers to Ljubija, it refers to the

18 Ljubija Roman Catholic parish church. So there is an inconsistency

19 because the indictment pleads Ljubija Roman Catholic Church and the

20 Prosecution is saying that it has not brought forward evidence to prove

21 the destruction of the mosque in Ljubija with which your client was not

22 charged.

23 I mean, there was no way we could contact either of you in the

24 course of -- of our deliberations, because I don't believe that that

25 should be done, so what we are doing is that once we are making you aware

Page 20789

1 of this, we are sure that a solution is going to be found, and the matter

2 will be addressed in the written decision but will not be addressed today.

3 So while we are taking into consideration what you have stated in Appendix

4 -- part B of Appendix C, Ms. Korner, and what is stated in the indictment

5 we will reserve the decision until later when we hand down the written

6 decision. And if you meant there is no case to answer with regard to the

7 Catholic church -- Roman Catholic Church in Ljubija, we will issue a

8 decision of acquittal with regard to that event. If you still intended

9 mosque, we obviously are going to say that was never pleaded. So that's

10 the position.

11 The second matter arises from a comment that you yourself,

12 Ms. Korner, made in part B of Appendix C, and that's with regard to

13 Kljevci, which in the indictment is included under Sanski Most. And you

14 note and you draw our attention to the fact that Kljevci does not -- is

15 not in Sanski Most but in Prijedor municipality. So we have this problem.

16 But as I was explaining earlier on, it doesn't bother us in the

17 least because if it remains as it is, in other words Kljevci Roman

18 Catholic church in Sanski Most, which does not exist because Kljevci does

19 not exist in Sanski Most, it's not a problem because we will find a

20 decision of no case to answer, a decision of acquittal. If it's in

21 Prijedor, then it was not pleaded and your client does not have to worry

22 about it. So that is the two matters that -- please help us clear up from

23 our -- our desk within now -- between now and when we hand down the

24 written -- the written decision.

25 So basically the position is a decision of acquittal is being

Page 20790

1 taken with results -- with respect to the incidents listed in part B of

2 Appendix C to the Prosecution's response under counts 3, persecution;

3 count 12, destruction or willful damage done to the institutions dedicated

4 to religion, with the exception as stated of Ljubija mosque and -- or

5 Ljubija Roman Catholic parish church.

6 With regard to the other ones, as I said, we'll deal with it. I

7 don't think there -- there is a problem. We can return a decision of

8 acquittal irrespective of whether you choose to retain it under Sanski

9 Most or whether you prefer us to put it under -- under Prijedor.

10 Please stay with paragraph 47 of the indictment, and I refer you

11 to paragraph 47(4). And the Trial Chamber, having considered the evidence

12 using the Jelesic standard, comes to the conclusion that there is no case

13 to answer to the charge of deportation or forcible transfer of Bosnian

14 Muslims and Bosnian Croats from areas within the ARK municipality listed

15 in para 4 of the indictment to areas under the control of the legitimate

16 government of Bosnia-Herzegovina and Croatia, in respect and only in

17 respect of the municipalities mentioned earlier, that is, Bihac-Ripac,

18 Bosanska Dubica, and Bosanska Gradiska.

19 In respect to any such incidents occurring in these three

20 municipalities, the Trial Chamber correspondingly enters a decision of

21 acquittal under counts 3, persecutions; 8, deportation; and 9, inhumane

22 acts, forcible transfers.

23 Always remaining in paragraph 47, but this time subpara 5 of that

24 paragraph, the Trial Chamber, again using the same yardstick, the same

25 standards, Jelesic, has come to the conclusion that there is no case to

Page 20791

1 answer to the charge of the denial of fundamental rights to Bosnian

2 Muslims and Bosnian Croats, including the right to employment, freedom of

3 movement, right to property -- proper judicial process, or right to proper

4 medical care, in any of the municipalities mentioned earlier, that is,

5 Bihac-Ripac, Bosanska Dubica, and Bosanska Gradiska. The Trial Chamber

6 correspondingly and accordingly enters a decision of acquittal with regard

7 to these -- with regard to this charge under count 3, persecutions, as it

8 relates to these three municipalities.

9 Now we come to another part of our decision, and that is --

10 relates to Appendix D, which was attached to the Prosecution's response.

11 As you are aware, Mr. Ackerman, the Prosecution in Appendix D lists

12 incidents for which, although not listed in the indictment, it submits

13 that sufficient evidence has been provided such that a reasonable trier of

14 fact could arrive at a conviction beyond reasonable doubt. The

15 Prosecution states that "It has proved the damage or destruction of other

16 religious buildings not listed in the indictment ... and will apply to

17 amend the indictment accordingly."

18 Leaving the motion to amend the indictment accordingly apart -

19 we'll come to that later on at some point in time today - the Trial

20 Chamber wants to make it clear that the decision to proceed or not -- or

21 to proceed or not to acquit at this stage, when reached, is not and has

22 not been based in any way on any of these events. We have specifically

23 left them out from our considerations. The relative evidence is not at

24 the moment excluded from the trial because decisions on a probative value

25 of testimony will be taken at the end of the trial. There is nothing at

Page 20792

1 this stage, however, to exclude this evidence on the basis of relevance.

2 Obviously, the events listed in Appendix D, the merit of whatever is

3 involved in the discussion on these events and on the submissions that

4 have been made will be taken up at a later stage and at the appropriate

5 moment.

6 Now we come to individual responsibility of the accused. This is

7 a specific area which we want to address today and which will obviously be

8 addressed much more fully in the written decision.

9 The Prosecution cumulatively charges Radoslav Brdjanin under

10 different modes of liability. We are going to digress a little bit on

11 this because we don't agree with one of the submissions that has been made

12 by the Prosecution as to the way we should have conducted our exercise.

13 So we don't agree, so we are -- we are stating it and more or less then

14 you will understand why we have done this whole exercise.

15 The Prosecution, as I said, cumulatively charges your client

16 under different modes of liability, that is, the first responsibility for

17 knowingly and willfully participating in a joint criminal enterprise which

18 entails his individual responsibility under Article 7(1) of the Statute.

19 And then the Prosecution also charges your client with responsibility

20 under 7(1) of the Statute for having planned, instigated, ordered or

21 otherwise aided and abetted in the planning, preparation, or execution of

22 the crimes charged in the indictment.

23 And lastly, the Prosecution charges your client with

24 responsibility for the acts committed by his subordinates whilst he was

25 holding a position of superior authority, pursuant to Article 7(3) of the

Page 20793

1 Statute.

2 In its response to the 98 bis motion, the Prosecution submitted

3 that it was not necessary for the Trial Chamber to address particular

4 modes of liability at the Rule 98 bis stage. We came to the conclusion

5 that we could not agree with the Prosecution on this point, also because

6 we came to the conclusion that one of the purposes of the Rule 98 bis

7 motion is that if your client is left with a case to answer, then the

8 position should be -- be presented in as clear a way as possible and not

9 left in -- not have any particular important matter such as the modes of

10 criminal responsibilities which he will have to answer at the end of this

11 trial, left in a vacuum.

12 We have, therefore, examined each of these modes of individual

13 criminal responsibility using the Jelesic test to -- to apply them to the

14 facts.

15 And we start with the joint criminal responsibility. We are

16 going to be very concise in this, but do expect an elaborate analogy of

17 this in the written decision, because these parts, as you may imagine,

18 engaged us considerably in our -- in our deliberations.

19 The first point that we are going to make, which we wouldn't have

20 made under normal circumstances, arises from the fact that both you,

21 Mr. Ackerman, and you, Ms. Korner, dedicated what we consider substantial

22 part of your elaborate motion and response, respectively, to the second

23 category of joint criminal enterprise. While it was my impression from

24 the very beginning when I started this trial, way back in January of 2002,

25 that the second category of joint criminal enterprise was not being

Page 20794

1 pleaded. You put me in doubt, to tell you the truth, both of you, because

2 you were referring and also making pronouncements on what constitutes the

3 second category, and we went back into the -- to look at the decisions

4 that were taken by my predecessor, Judge Hunt, when he was Pre-Trial Judge

5 in this case, and we have come to the conclusion that the submissions that

6 you've both made, with regard to the second category of joint criminal

7 enterprise - to be precise, we're talking of the concentration camp

8 category - does -- does not have any relevance for the purpose of this

9 trial because we cannot consider now at this stage that category 2, joint

10 criminal enterprise, has been pleaded. So that is one decision that we

11 have taken.

12 With regard to joint criminal enterprise, one point which was

13 raised by the Defence and which we have considered and which we are going

14 to touch upon now, again more to be expected in the written decision, and

15 this is -- we concur with the Defence in that the notion of genocide as a

16 natural and foreseeable consequence of an enterprise, not aimed

17 specifically at genocide, is not compatible with the definition of

18 "genocide" under Article 4(3)(a) of the Statute because of the intent

19 required under that subparagraph, which is specifically to "The intent to

20 destroy, in whole or in part, a national, ethnical, racial, or religious

21 group, as such." Accordingly, the Trial Chamber is dismissing count 1 in

22 the context of the category 3 joint criminal enterprise case. We will

23 expand on this in our -- in our written -- written decision.

24 Brdjanin was also charged or has been charged also with -- under

25 7(1) of the Statute, and that's criminal individual responsibility,

Page 20795

1 and the Trial Chamber is satisfied on a prima facie basis but within the

2 parameters of the Jelesic decision that the evidence establishes Radoslav

3 Brdjanin's responsibility pursuant to 7(1) of the Statute, that is for

4 having planned, instigated, ordered, or otherwise aided and abetted in the

5 planning, preparation, or execution of the crimes charged under counts 1

6 through 12 of the indictment. In other words, I'm not again repeating

7 each time the words of Jelesic, the conclusion is that a reasonable trier

8 of fact would come to a conclusion of conviction.

9 With regard to Article 7(3), we also are satisfied on the same

10 prima facie basis but within the parameters of the Jelesic judgement that

11 the evidence sufficiently establishes Radoslav Brdjanin's responsibility

12 pursuant to Article 7(3) of the Statute for crimes charged under counts 1

13 through 12 of the indictment.

14 And we are now going to tackle two further points only, and we

15 come to the conclusion. And the first one relates to genocide. In its

16 response, the Prosecution submits -- the reference you will find in the

17 written decision. I mean, I don't have reference to paragraphs here. But

18 in its response, the Prosecution submits that "The mass deportation of

19 Bosnian Muslim and Bosnian Croat groups" constitutes conditions of life

20 calculated to bring about their physical destruction, within the meaning

21 of Article 4(2)(c) of the Statute. It may well be so, but the Trial

22 Chamber does not entertain this submission, will not accept it, for the

23 reason that this is not pleaded in the indictment, as paragraphs 37 -- as

24 reference to paragraphs 37(3) and 43 of the indictment will clearly show.

25 The last point is with regard to extermination. The Trial

Page 20796

1 Chamber is grateful for the submissions made by both the Defence in its

2 motion and the -- the Prosecution in its elaborate response. And with

3 regard to extermination would like to point out that after due

4 consideration to case law and also your submissions and also authors and

5 doctrine, we accept as the correct legal approach the formulation of the

6 mens rea element with regard to extermination as explained in the

7 Vasiljevic trial judgement, that is, the mens rea comprising the

8 requirement to prove that your client "had knowledge that his action is

9 part of a vast murderous enterprise in which a large number of individuals

10 are systematically marked for killing or were killed." The Trial Chamber

11 is aware that there are at least two other judgements (Krstic and Stakic)

12 which differ from the Vasiljevic approach. All three cases are currently

13 pending before the Appeals Chamber. For the purpose of this Rule 98 bis

14 exercise, the Trial Chamber chose to apply the pronouncement which is more

15 favourable to the accused, namely that found in the Vasiljevic trial

16 judgement, and leaves the matter to be definitively decided in a later

17 stage, hopefully after a decision of the Appeals Chamber.

18 Our conclusion, therefore, saving all that has already been

19 decided, with regard to the various counts and various incidents or

20 events, the Trial Chamber dismisses the remainder of the accused's motion

21 on the basis that it is the conviction of this Trial Chamber that there is

22 sufficient evidence, which if accepted, upon which -- if accepted, upon

23 which a reasonable trier of fact could be satisfied beyond a reasonable

24 doubt of the guilt of the accused on the relevant particular charges.

25 As I said, this is not an official document. Please don't treat

Page 20797

1 it as official. I'm just giving you a copy to make things easier for you.

2 Chuqing, if you can hand this over.

3 And there are verbal additions that I have made, as you can

4 imagine, qualifications here and qualifications there. So I don't expect

5 anyone to take advantage of the document at a later point in time.

6 MS. KORNER: No, Your Honour, I think we're both aware that it's

7 the actual written judgement, as Your Honour said, that will be the

8 deciding factor.

9 Your Honour, subject to anything Your Honours may say about this,

10 it seems to me that the logical thing now would be for me to apply to Your

11 Honours to have the indictment accepted which we submitted in our

12 addendum. Your Honour, in that -- we haven't had it signed yet. I've

13 never understood why in fact an indictment, which is a result of Your

14 Honours' ruling, should have to be signed by the Prosecutor, but I think

15 it has to. So there was a draft --

16 JUDGE AGIUS: That's how I know it.

17 MS. KORNER: Yes.

18 JUDGE AGIUS: I stand to be corrected, Ms. Korner.

19 MS. KORNER: Yes. Your Honour, I think that's right. But we,

20 therefore, appended to our addendum filed on the 16th of September a draft

21 indictment which we would be proposing to lodge with the Court but which

22 also includes --

23 JUDGE AGIUS: Yes, exactly. That's the point.

24 MS. KORNER: -- the extra effectively religious buildings.

25 Your Honour, may I just say this: They were proved through the

Page 20798

1 evidence. They could remain simply in the evidence as similar fact

2 evidence, but we thought it right that if at the end of the day there

3 should be any sort of a conviction, that Mr. Brdjanin and the public

4 should know exactly on what he had been convicted and so we applied to put

5 those names into the indictment.

6 May I say it is entirely a matter for Your Honours, but we felt

7 that was the proper way of dealing with it.

8 JUDGE AGIUS: Mr. Ackerman, I think the matter can be addressed

9 under two headings. One is the cleaning of the indictment, now taking

10 into consideration the extraction from it of certain events, and

11 particularly paragraph 4 of the indictment, which lists the municipalities

12 and to which reference is made in various other parts of the indictment.

13 But that can be done, and I think it has been done, and I don't think that

14 should be -- should present any problem. If anything, it would -- it

15 would help our work now and in the future.

16 The second part is something which is completely different; that

17 is, the Prosecution is applying to have included in the indictment under

18 certain counts only reference to events, particularly destruction of

19 religious and cultural, whatever, which were not included before. In

20 other words, you will have a situation whereby the original list will

21 first be shortened and then be lengthened again. So this is -- this is

22 the proposal. Now, what's your position on it?

23 MR. ACKERMAN: Your Honour, I object to -- I have no objection to

24 the indictment being modified to conform to the judgement that you are

25 entering. I do object to the indictment being amended to include matters

Page 20799

1 that were not in the original indictment as to which there would have been

2 no motivation for us to conduct cross-examination of any of the witnesses

3 regarding those matters.

4 JUDGE AGIUS: We are fully aware --

5 MR. ACKERMAN: And in fact, we could very well have been cut off

6 by the Court had we gone into those because they weren't in the

7 indictment, so I think it's totally unfair to now put them in the

8 indictment when we can't contest them by cross-examination of the witness.

9 If they're going to play any part in this case, it ought to be similar

10 fact evidence, as suggested by Ms. Korner, but not a part of the

11 indictment. I think that would be improper and unfair.

12 JUDGE AGIUS: Yes, Ms. Korner.

13 MS. KORNER: Well, Your Honour, in response, all I -- can I say

14 this, that if there had been any dispute as to these matters, whether or

15 not they were in the indictment, Mr. Ackerman would still have been under

16 an obligation to cross-examine. As we now know from Mr. Ackerman's

17 response, there is no dispute at all to any of what has -- I think we've

18 been generally calling the basic, the evidence of basic crimes. I don't,

19 therefore, see how Mr. Ackerman is in any way prejudiced. May I say this

20 would happen in most jurisdictions, but this happened particularly in the

21 Stakic case when Judge Schomburg himself said this was the proper way of

22 doing things, that people who had been listed as killed at the back of the

23 indictment, not proved were removed but those that had been -- the names

24 of those proved but not listed were added.

25 But Your Honour, as I say, I don't advocate strongly for this.

Page 20800

1 If Your Honour feels that's an objection with merit, then so be it.

2 JUDGE AGIUS: You both have strong points, actually. But I

3 consider yours to be stronger than Mr. Ackerman's for a -- for a very

4 simple reason, that although it is true that I would have stood up and

5 repeated what you said; in other words, knowing that mosques and churches

6 were coming out during examination-in-chief that were not included in the

7 indictment, I didn't think it was appropriate or necessary to -- to

8 cross-examine the witness upon. That would have made a hell of a lot of

9 sense. But does it make sense any further or any more now, considering

10 what Ms. Korner has stated, namely that as far as the facts are concerned,

11 more or less you are not contesting that a number of churches, a number of

12 mosques, a number of -- were burnt down? Does it really make a difference

13 if instead of having -- I don't know, I haven't counted them -- but

14 instead of having 10, you have 20? And in circumstances in which

15 certainly there is not even a hint that your client was personally

16 involved in the destruction of -- of these mosques or churches?

17 MR. ACKERMAN: Your Honour, I want to make something very clear,

18 because it appears to -- to not be very clear. But I thought I made it

19 very clear in my motion. By my not contesting certain factual matters, I

20 said I think very clearly in the motion that for the purposes of the

21 motion I would not be contesting those matters but I was not making any

22 admissions that the Prosecution has proven any of those factual matters

23 beyond a reasonable doubt. And I want to make that very clear. I've not

24 done that.

25 JUDGE AGIUS: Yeah, that's how we understood it anyway.

Page 20801

1 MR. ACKERMAN: I've said for purposes of the motion the Trial

2 Chamber can't consider these matters have been proven.

3 JUDGE AGIUS: That's what we understood, Mr. Ackerman. But does

4 it really make a difference? Because these will be in the same block as

5 -- as the others.

6 MR. ACKERMAN: Well, it only makes a difference, perhaps, Your

7 Honour, with regard to sentencing. I mean, I can see a judge saying we're

8 going to sentence the defendant 15 minutes for every mosque, or something,

9 and if you add the mosques, then you have the sentence.

10 JUDGE AGIUS: Mr. Ackerman, this is not a case of willful

11 destruction of property that you would have in a domestic jurisdiction

12 which stands on its own. And if you've -- you've burnt down one barn,

13 it's one way, if you have burnt an entire village it's another. It's --

14 you know, I don't think the case rests on the number of mosques that were

15 destroyed.

16 MR. ACKERMAN: Well, it's my job to state my position and your

17 job to -- to decide the matter, so please go ahead and decide it and --

18 JUDGE AGIUS: No, we are not --

19 MR. ACKERMAN: -- whatever you wish to decide is your --

20 JUDGE AGIUS: We are not exactly that keen either on -- on

21 opening up the -- in the indictment. I mean, because I think even from

22 the few words that I said in the oral decision, we made our position very

23 clear that we do not intend to take them out of the evidence, definitely

24 not. Because we all know that they ought to be there and they are

25 relevant and they can have a probative value which can be assigned to them

Page 20802

1 at a later stage.

2 Whether -- whether the Tribunal is going to be convinced more that

3 there was destruction of mosques and churches, religious -- religious

4 buildings because there are, there are 30 instead of 20, I mean, I -- I

5 will -- I am not prepared to commit myself. But on the other hand, I

6 mean, it's self-explanatory if we had doubt as to whether a case where --

7 where just one mosque was destroyed or not, it's one thing. But here we

8 have a number of mosques which have either been destroyed or not. And

9 whether it was a systematic thing happening or whether it was just a

10 sporadic incident which had no connotation with the rest of the case.

11 Anyway, is that your position? Do you need -- do you want to add

12 anything to what has been submitted?

13 All right. We will discuss this amongst ourselves. We have

14 discussed it already, you know, and -- but we came to the courtroom very

15 much open to conviction from either side on this, and we take stock of

16 what has been submitted and will -- will let you know what our decision

17 will be.

18 MS. KORNER: [Microphone not activated] Your Honour, I don't

19 think it's possible. It's simply that we can get the new indictment,

20 however it's formed, signed tomorrow and have it properly filed. At the

21 moment it's been filed confidentially because we need Your Honours'

22 rulings first.

23 JUDGE AGIUS: Yes.

24 MS. KORNER: So perhaps -- I mean, I know there's going to have

25 to be a break, I think, in what, half an hour or so?

Page 20803

1 JUDGE AGIUS: I don't know. We started --

2 MS. KORNER: What time did we sit? 20 minutes.

3 JUDGE AGIUS: We started at about quarter to 3.00.

4 MS. KORNER: So half an hour, yes. So if Your Honours were able

5 to, after the break, perhaps let us know, that would be very helpful.

6 JUDGE AGIUS: All right. Okay. Can we move to the pre-Defence

7 conference? So --

8 MS. KORNER: One thing. Your Honour, I'm sorry about that, those

9 two aspects of confusion in our list in Annex B. We'll check that and get

10 back to Your Honours over whether it's mosques or Catholic churches.

11 JUDGE AGIUS: Yeah. Please do. I mean, no hurry. Because it's

12 -- the written decision won't be available before a couple of weeks.

13 MS. KORNER: Your Honour, we can certainly, if that's all right,

14 we can perhaps just file very quickly a supplementary --

15 JUDGE AGIUS: That's okay with us.

16 MS. KORNER: Thank you.

17 JUDGE AGIUS: Now, let's start with the Pre-Defence Conference.

18 And I've discussed this with my two colleagues and particularly

19 with the staff. There was -- I'm referring to BT106.

20 MS. KORNER: Yes, Your Honour.

21 JUDGE AGIUS: Before we can even discuss BT--

22 MS. KORNER: Can we go perhaps into private session, Your Honour?

23 JUDGE AGIUS: I was going to suggest that we need to lift the

24 confidentiality of the first document that you had filed on the 1st of --

25 or the 4th of September. That's --

Page 20804

1 MS. KORNER: Your Honour, can I ask that we go into private

2 session and perhaps we'll just elaborate slightly on what Your Honour is

3 talking about.

4 JUDGE AGIUS: Yes. Let's go into private session. Let's go into

5 private session.

6 [Private session]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [Open session]

23 JUDGE AGIUS: We are in open session. So it's the decision of

24 this Trial Chamber to lift the confidentiality of its confidential

25 decision reached -- or filed on the 4th of September, 2003 on the

Page 20805

1 Prosecution's application to present new evidence.

2 Arising from that, there was a motion subsequently on which I

3 understand there was agreement reached between the two parties to delay

4 the testimony of BT106 because of Mr. Cunningham not being able to be here

5 when we had scheduled the hearing of BT106 to which the previous decision

6 refers. And that's why we had to lift the confidentiality, because

7 otherwise I wouldn't have been able to mention it.

8 I just want a confirmation from you that the agreement that you

9 reached and we were informed of still stands.

10 MR. ACKERMAN: Your Honour, I --

11 MS. KORNER: I think Mr. Ackerman has got something to add.

12 MR. ACKERMAN: Your Honour, I have filed today - and you

13 obviously have not received it yet - a motion to either prohibit this

14 witness from testifying at all or moving the testimony to the

15 Prosecution's rebuttal case. And the basis of that motion is just today

16 we were given a fairly large quantity of Rule 68 material regarding this

17 witness that is all in B/C/S, untranslated. Mr. Cunningham has left the

18 country. I can't imagine how we could be prepared to cross-examine this

19 witness by Friday of next week with this kind of a situation. And I think

20 it's more than just -- than just what meets the eye right now. This is

21 all material that has been in the possession of the Prosecution for a very

22 long period of time. And I will not stand here and accuse the Prosecutor

23 of deliberately doing it this way, but it's -- I will say that it's a bit

24 suspicious and certainly puts us in a position where in effect we're being

25 denied the opportunity to fully cross-examine this witness by -- by this

Page 20806

1 kind of a procedure.

2 And I can go into greater detail about the material that was given

3 us, Your Honour, if you'd like, and you will -- as soon as you know, you

4 will recognise that it's material that has been around for a very long

5 time, and we just found it in our box this -- this very morning. So

6 that's where we are. But I have filed the motion.

7 JUDGE AGIUS: That's all news to us. We -- we are not aware of

8 the motion. We are not aware of the information that -- on which you back

9 your motion.

10 What's the position, Ms. Korner?

11 MS. KORNER: Well, I wasn't aware of the motion until

12 Mr. Ackerman came into court, just before Your Honours came in this

13 afternoon.

14 As far as I am aware, we disclosed on the 24th of September, and

15 we're now, whatever --

16 JUDGE AGIUS: Today is the 9th.

17 MS. KORNER: The 9th of October. Now, may I say I appreciate

18 straight away that Mr. Ackerman, I know, has been out of the country. I

19 don't know where Mr. Cunningham has been.

20 And what was disclosed today is -- is something different. But

21 it was -- it's effectively statements which relate to the -- the matters

22 that this witness is going to testify about.

23 JUDGE AGIUS: I'm more interested at this point in time at the

24 real problem, because is it -- is it correct -- I mean, I don't doubt

25 Mr. Ackerman's -- but I just want a confirmation of it. Is it correct

Page 20807

1 that these documents that have been disclosed to -- to the Defence are in

2 B/C/S?

3 MS. KORNER: Some are, yes.

4 MR. ACKERMAN: Your Honour, may I just hand the disclosure to you

5 so you can see what it is?

6 MS. KORNER: Is that today's or the 24 of September?

7 MR. ACKERMAN: No, I'm not complaining about 24 September. I'm

8 complaining about 8 October, that we received this morning. That's the

9 only thing that I'm complaining about.

10 MS. KORNER: I don't think -- in that case, I think,

11 Mr. Ackerman, you'll find it's got nothing to do with the witness.

12 MR. ACKERMAN: It claims to have everything to do with the

13 witness. Now, maybe I'm -- maybe I'm wrong.

14 MS. KORNER: As far as I know, it's to do with -- I wonder if

15 I -- I'm sorry, Your Honour, we haven't got the disclosure here, because I

16 wasn't aware this was going to be raised. I wonder if I can see what it

17 is.

18 JUDGE AGIUS: Yeah. Let's have a look at it, Mr. Ackerman. At

19 least we'll have an indication of what we're talking about.

20 MR. ACKERMAN: Your Honour, I can't -- since I can't read them, I

21 can't be certain, but, you know, maybe what Ms. Korner said is correct.

22 I'm not sure.

23 JUDGE AGIUS: But they obviously have a reference number.

24 Through the reference number Ms. Gustin can find out what they are.

25 [Prosecution counsel confer]

Page 20808

1 [Trial Chamber and legal officer confer]

2 MS. KORNER: Your Honour, the only thing that relates to Witness

3 106 is in English, which is a list of points relating -- which we -- Your

4 Honours ordered.

5 JUDGE AGIUS: Exactly.

6 MS. KORNER: The remainder of the stuff, which is in B/C/S,

7 relates to witnesses that Mr. Ackerman intends apparently to call. If he

8 looks at the first document, it's an intercept between Vojo Kupresanin and

9 others. We felt that as we now were notified of witnesses that

10 Mr. Ackerman wanted to call, if we had documents which related to those

11 witnesses, which hadn't been disclosed to him, they should be disclosed

12 and that's what the letter says.

13 MR. ACKERMAN: We can -- we can cut it short, Your Honour. I've

14 obviously misapprehended. I assume that all of those documents that were

15 in B/C/S contained within them information regarding that witness.

16 MS. KORNER: No.

17 JUDGE AGIUS: [Microphone not activated]

18 MR. ACKERMAN: And so I apologise to the Court for labouring you

19 all with this matter and the motion will be withdrawn.

20 MS. KORNER: And us? What about us?

21 JUDGE AGIUS: [Microphone not activated] So going back now to

22 square 1. I was --

23 MS. KORNER: And Your Honours, getting, back to what Your Honours

24 asked, I'm sorry.

25 JUDGE AGIUS: Yes, exactly.

Page 20809

1 MS. KORNER: I think we're all agreed. There's no problem the

2 witness will testify after the cross-examination of Mr. Brown and

3 Mr. Trainer.

4 JUDGE AGIUS: All right. Do you agree, Mr. Ackerman? Okay.

5 So there's --

6 MR. ACKERMAN: As long as, Your Honour, it's within the time

7 frame of Mr. Cunningham's return.

8 JUDGE AGIUS: That's okay. But I don't think you are going to

9 find us trying to extract blood. It's --

10 MR. ACKERMAN: I understand.

11 JUDGE AGIUS: So I don't think there is --

12 MS. KORNER: I'm sorry. I'm sorry. Before we leave that

13 witness, can I go back into private session for one moment? Because there

14 is one matter I want to raise.

15 JUDGE AGIUS: Let's go into private session, please.

16 [Private session]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 20810

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 20810 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 20811

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 20811 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 20812

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 20812 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 20813

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [Open session]

7 JUDGE AGIUS: Well, we are now going to proceed with the

8 Pre-Defence Conference, which is being convened pursuant to Rule 73 ter.

9 And there are a few notes that -- or points that I need to note.

10 The first one relates to our scheduling order of the 31st of July and

11 the Rule 65 ter -- With reference to Rule 65 ter, the Defence filed on

12 the 23rd of September the confidential submission pursuant to Rule 65 ter.

13 Subsequently we had, or at least we were informed that Mr. Ackerman

14 wanted to file -- or to present a revised witness list. I gave

15 instructions to the -- my legal officer -- to the legal officer of Trial

16 Chamber II to request from -- require from Mr. Ackerman a proper formal

17 filing, which we got today.

18 We were not -- because I specifically refused to have in --

19 accept an unofficial list, so the second list that we have been able to

20 look at is the one which arrived today, with which you filed this morning.

21 In the short time available, I have tried to compare and contrast

22 the two documents, but perhaps you would be in a position to explain that

23 better yourself, Mr. Ackerman, when we come to that stage. We obviously

24 will need to refer now to the revised list, which is comprehensive of the

25 first one.

Page 20814

1 I note, or at least until I received this, I had noted that in

2 the previous one you had failed, Mr. Ackerman, to name any of the four

3 expert witnesses listed. And I think at least with regard to two of them

4 as they appear on the last page of the revised, we are still in the same

5 position, number 61 and 62.

6 MS. KORNER: Your Honour, we're now utterly confused, because we

7 don't know anything about anything being filed today. We were sent an

8 e-mail by -- or either -- today by Mr. Ackerman, including a -- what to us

9 is the third version.

10 JUDGE AGIUS: This is -- this is supposed to be the third, I

11 think, version.

12 MS. KORNER: Right. So this is the one that's been filed.

13 JUDGE AGIUS: Let me try and explain it. There was a first

14 version which was filed ahead of --

15 MS. KORNER: Yes.

16 JUDGE AGIUS: -- time, for which I'm thankful, because it gave us

17 an idea of what to expect on -- on a broad basis.

18 Then I was informed by one of my legal staff that Mr. Ackerman

19 had handed another list, was not intending to file it officially as it was

20 a revised list, and I said -- I told my legal officer, "Please tell

21 Mr. Ackerman that I insist upon having it filed officially and until there

22 is an official addendum or revised list, I will not look at any list that

23 he may have handed to you." I was also informed that he handed the same

24 list, an unofficial list, to the Prosecution. So that much I was

25 informed. I know that my staff was trying to get in touch with

Page 20815

1 Mr. Ackerman, and at least one of my staff got in touch with Mr. Ackerman

2 yesterday evening, I suppose, yesterday. And I was informed this morning

3 to expect a revised list, which arrived at about half past 1.00 this

4 afternoon.

5 MS. KORNER: Well, Your Honour, I just want to check it's the

6 same that we were sent. I imagine it is. But it contains no names of any

7 experts.

8 JUDGE AGIUS: No. In fact, that is -- I am starting with that --

9 MS. KORNER: Right.

10 JUDGE AGIUS: -- because it's one thing that we need to clarify,

11 not necessarily today but we can't leave it pending just like that.

12 Yes, Mr. Ackerman.

13 MR. ACKERMAN: Your Honour, the witness list that -- that was

14 filed today has in the -- on the first page in the upper left-hand corner,

15 "Rev. 8/10/03." That's the one that was sent to you at the same time it

16 was filed. So you will also get a filing along with that, Ms. Korner.

17 With regard to expert witnesses, Your Honour, I'll be providing

18 those as soon as possible. We're still in negotiations with -- with at

19 least two of them, and we're not absolutely certain whether or not they're

20 going to accept the terms that the Registry is willing to extend. And so

21 we're involved in that. But I would expect fairly soon that we will have

22 those names. We do not intend to call any expert witness until very near

23 the end of the Defence case, so I think we're looking at -- at January

24 before we actually call an expert witness in.

25 JUDGE AGIUS: So we've made two points.

Page 20816

1 MS. KORNER: Your Honour, may I say that I -- that was one of the

2 points that I wanted to raise.

3 JUDGE AGIUS: Yes.

4 MS. KORNER: Would Your Honours prefer to go through yours and

5 then I'll come back to this? Because otherwise, I want to make a point

6 about what's --

7 JUDGE AGIUS: I am pretty sure that what you have jotted down as

8 points will -- will overlap with -- probably with mine.

9 MS. KORNER: Can I --

10 JUDGE AGIUS: So let's proceed. Go ahead.

11 MS. KORNER: Yes. Your Honour --

12 JUDGE AGIUS: But let's make these two points first: Number one,

13 Mr. Ackerman is stating that the -- the expert witnesses will be brought

14 forward towards the end of his case and that he will -- he undertakes to

15 submit the names of these witnesses ASAP after finalising with them the

16 terms under which they can testify.

17 MS. KORNER: Yes. Your Honour, I understand that. But he says

18 two out of the four. Therefore, can I take it there are two where he has

19 the experts' names, if not the full reports?

20 Your Honour, I'm not quarrelling, and indeed I couldn't, because

21 our experts reports came late on. But Mr. Ackerman knew from the

22 beginning whom our experts were going to be. I'm asking for the names of

23 those that he has definitely decided to call. And Your Honour, I'll make

24 it absolutely clear, so we can commence our researches.

25 JUDGE AGIUS: Let's start with --

Page 20817

1 MS. KORNER: And I would ask to make an order that the names of

2 the two that he says that he's still in negotiation with should be

3 provided if they're to be called within the next 14 days.

4 JUDGE AGIUS: The experts feature, or at least what I can see

5 from this revised list, under 59, 60, 61 and 62. Correct me if I'm wrong,

6 Mr. Ackerman.

7 MR. ACKERMAN: You're correct, Your Honour.

8 JUDGE AGIUS: Now, in none of these cases do we have an

9 indication of who you intend to submit as an expert? Only the area of

10 expertise that they would --

11 MR. ACKERMAN: Yes, that's correct right now. But I will

12 supply -- I think I can supply at least two names within 24, 48 hours,

13 something like that. Then the rest are going to take a little longer.

14 And if -- if the two people who we're negotiating with say no, then we

15 have to start searching for someone else. But we're hoping they'll both

16 accept.

17 JUDGE AGIUS: Which two are you referring to? Which areas of

18 expertise?

19 MR. ACKERMAN: Military and police.

20 MS. KORNER: So can I take it the constitutional law expert has

21 been chosen? And if so, could I have his name?

22 And Your Honour, in respect of graphology, it doesn't say to what

23 area. Is this towards Mr. Brdjanin's signature or to Rasula's diary or to

24 what?

25 MR. ACKERMAN: Your Honour, the graphology, the handwriting

Page 20818

1 expert, you'll recall that during the testimony of several witnesses we

2 got signatures from the witness to compare with signatures that were

3 contended to be theirs in various documents. There are, I think, three of

4 those. And that's what that witness will be testifying about. I would

5 tell you the name right now, but I've forgotten it. I will -- I will get

6 it -- I will get it to you.

7 JUDGE AGIUS: But the point raised by Ms. Korner is perfectly

8 legitimate, because -- in fact, I was -- I was coming to one what -- I'm

9 going to use the word "shortcoming" because technically it is a

10 shortcoming. But you did not as such follow the requirements of our

11 scheduling order and what is required by the Rules themselves. And that

12 is not only a short summary of what the witness intends to testify upon,

13 but supposedly you were also supposed to specify on the witness list the

14 points in the indictment as to which each witness will testify and you

15 haven't -- you haven't done this.

16 Also, I could mention that some of the summaries are not

17 summaries at all, just a very, very, very skimpy indication of what could

18 possibly be the -- the subject matter of -- of the testimony, but not even

19 a summary. So I think we need to dwell on this a little bit, dwell on

20 this a little bit, and with regard to the experts in particular because,

21 as you know, the -- the Rules provide for a time limit reserved for the

22 other party. Now, it's true that the other party may -- may renounce to

23 that time limit, but the fact that there is a time limit could create

24 problems if you delay the disclosure of the names in particular.

25 MS. KORNER: Your Honour, may I, I think -- [Microphone not

Page 20819

1 activated]

2 THE INTERPRETER: Microphone, please.

3 MS. KORNER: I --

4 THE INTERPRETER: Microphone, please.

5 JUDGE AGIUS: Microphone.

6 MS. KORNER: Sorry. But can I just stick for a moment to the

7 expert.

8 Your Honour, it may well be that we're going to object to this,

9 the graphology stuff on the basis of relevance and peripheral issues, but

10 until I see a report it's very difficult. But I would like to know --

11 we've drifted slightly away. What is the name, please, of the

12 constitutional expert? Apparently Mr. Ackerman have some kind of report

13 and does know who it is, because he's saying it's the military and police

14 he's still negotiating with. So could we be told who it is, please.

15 MR. ACKERMAN: Your Honour, I'm going to try to supply the name

16 within 48 hours, and I'll do that. Again, I'm not going to supply it here

17 in open court.

18 And let me say this in --

19 JUDGE AGIUS: We could go into private session.

20 MR. ACKERMAN: In some defence. No, not in private session

21 either, because we're not completely finished yet. And again, I don't

22 know the name off the top of my head. But it's -- I'm not trying to keep

23 it from the Prosecution. Please understand, that's not what I'm doing.

24 But let me say this in defence of what we've done at this point:

25 There has not been a moment since we last left here that I sat around

Page 20820

1 wondering what maybe I should do next. We were given insufficient time to

2 prepare the Defence, in my view. We have spent -- we have worked

3 extraordinarily hard trying to get just to where we've gotten. And I can

4 just tell you that we are -- we're willing to start calling witnesses when

5 you ask us to start calling witnesses, but we're not ready. And we

6 haven't completed all the work that needed to be done. We have a very

7 small staff. We don't have a staff like the Prosecutor has. We have been

8 working extraordinarily hard, every one of us, and people who are

9 volunteers who are not be paid are working to try to help us get to the

10 point we need to get to cooperate with this Chamber to try to get this

11 case going on the schedule that you want it to go on. We're doing

12 everything we can to make that happen. We have spent on extraordinary

13 amount of time in Bosnia recently working very hard to try to get there.

14 And so it's not that we're sitting around not doing things that we should

15 be doing. It's that we haven't had time to do the things that we should

16 be doing and we recognise that.

17 But, you know, we haven't been given sufficient time to prepare

18 this Defence. We asked for it. It was denied. So we're doing the best

19 we can on the time schedule that you want us to be on, Your Honour. And

20 we're not complaining all that much about it. We just need the -- the

21 Chamber to understand that it's not as elegant as we would like it to be

22 in terms of what we're able to -- to provide. We're not hiding anything

23 from anybody, not trying to hide anything from anybody. We're doing as

24 good a job as I think we can do under the circumstances, and that's what I

25 want to tell you.

Page 20821

1 JUDGE AGIUS: All right. That's, again, back to the -- to the

2 two experts.

3 MS. KORNER: Your Honour, may I say, I'm asking Your Honour to

4 order Mr. Ackerman to tell us the names.

5 JUDGE AGIUS: Yes, the two of them I'm going to order

6 Mr. Ackerman --

7 MS. KORNER: All right.

8 JUDGE AGIUS: -- to give us the name within 48 hours. It should

9 be enough time to refresh your memory, Mr. Ackerman.

10 MR. ACKERMAN: I can do it as soon as I get back to my flat, Your

11 Honour. I just can't do it right now.

12 JUDGE AGIUS: Okay. So -- no, I understand that. I mean, I'm

13 absolutely hopeless when it comes to names myself, so I'm not surprised.

14 That's number one.

15 The other two --

16 MS. KORNER: Your Honour, I have some issues to raise, but I note

17 the time, on this --

18 JUDGE AGIUS: The other --

19 THE INTERPRETER: The speakers are overlapping, so it's very hard

20 for the interpreters to keep up.

21 JUDGE AGIUS: Oh, I see. I apologise to you. I'm sorry. It's

22 my fault. It's definitely my fault, because I -- I jump straight without

23 leaving an interval of time.

24 And tell me when we need to break. Now? Yeah, but let's

25 conclude this part on the other two.

Page 20822

1

2

3

4

5

6

7

8

9

10

11

12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 20822 to 20825.

14

15

16

17

18

19

20

21

22

23

24

25

Page 20826

1 You need to set to yourself a time limit within which to decide

2 on the other two, Mr. Ackerman.

3 MR. ACKERMAN: Your Honour, I'm not the one that's deciding.

4 It's the -- it's the witnesses that are deciding.

5 JUDGE AGIUS: I know. But if you want me to impose it, I will

6 impose it. But it's not my style to impose it if the Defence can help

7 itself.

8 MR. ACKERMAN: The -- I don't know how to explain. One of the

9 witnesses, for instance, we have been communicating almost exclusively by

10 e-mail. Mr. Cunningham will personally contact him tomorrow, and we may

11 have an answer as early as tomorrow, but I don't know. And until I know,

12 it makes no sense for me to say and to make some pronouncement.

13 JUDGE AGIUS: The other?

14 MR. ACKERMAN: The other, we're still waiting for information

15 from Bosnia regarding the other person, and we should have that, I hope,

16 rather soon, Your Honour. I'm expecting that within three or four days,

17 at least.

18 JUDGE AGIUS: So it's the sitting of optimism today. I mean,

19 everyone is very hopeful.

20 MR. ACKERMAN: So I think -- I'm very hopeful, yes.

21 JUDGE AGIUS: I'm going to set a time limit as soon as we start

22 again after the break. In the meantime, we'll have a 20-minute break, and

23 we will also come out with a decision on the amendment -- suggested or

24 proposed amended indictment. Thank you. Twenty-five minutes.

25 --- Recess taken at 4.20 p.m.

Page 20827

1 --- On resuming at 4.45 p.m.

2 JUDGE AGIUS: Yes. Thank you. Mr. Brdjanin is here, Mr.

3 Ackerman and Ms. Korner are here.

4 So two decisions. Decision number 1: With regard to the

5 addendum -- let me refer to it -- we are now back, technically speaking,

6 so that we will keep it at that -- the first part of this -- today's

7 hearing was a trial day proper, because we -- we were handing down a

8 decision. Arising out of that, we need to give a second decision, which

9 we are going to give now, so we are reconvened for the purpose of this

10 decision as the Trial Chamber during trial. All right? And this is the

11 second decision that we are handing down, relating to the addendum to the

12 Prosecutor's response to the motion for judgement of acquittal, Rule 98

13 bis, filed on the 16th of September.

14 We have taken due consideration -- into consideration the

15 respective submissions made by the Prosecution and the Defence. As we

16 stated earlier, we see value to -- in both, but I think in the interest of

17 a fair trial will be secured better if at the stage of the proceedings the

18 request of the Prosecution is to have the indictment amended by the

19 inclusion of the events mentioned in Appendix D to the response - I've

20 lost track now - if the request is turned down, and we are actually

21 turning down the request. The indictment will be adjusted accordingly to

22 reflect also the decision that we are -- we took earlier with regard to

23 the Rule 98 bis, but I think we have come -- not I think; we have come to

24 the conclusion that in fairness -- for fairness sake, the evidence remains

25 there. What importance we attach to it will depend later on -- according

Page 20828

1 to what we will decide. But there's not going to be an amended indictment

2 to include those. All right?

3 MS. KORNER: Yes. Your Honour, in that case, we'll -- we'll --

4 the indictment that we produce for signature which we filed will be one

5 that merely takes into account Your Honours' rulings.

6 JUDGE AGIUS: Exactly. Yes, please. Thank you.

7 That's number 1. Number 2: We are now reconvened in the

8 Pre-Defence Conference. And the trial sitting hearing stands adjourned

9 until Monday, the 13th. Correct? Correct me if I'm wrong. Monday, the

10 13th we start. No? Monday, the 13th. So we start with the Pre-Trial --

11 the Pre-Defence Conference.

12 JUDGE AGIUS: First, Mr. Ackerman, you have until Monday to

13 disclose the names of the experts you intend to produce under 59 as expert

14 in graphology and under 60 as constitutional law expert. And the Trial

15 Chamber has recorded what Ms. Korner said earlier with regard to the

16 possibility of challenging the expert in graphology. But that's something

17 that we will come to later.

18 With regard to the military expert and police expert, we

19 appreciate that you, as you said, Mr. Ackerman, you have encountered

20 problems there. We also appreciate that you are optimistic that this

21 matter can be solved shortly. So tentatively we are giving a date -- a

22 maximum date of ten days from today, and then we'll take it up from there.

23 In these ten days, please make an effort like you have done in the past to

24 fill in these blanks.

25 Ms. Korner, I am going to take your advice and hand over to you

Page 20829

1 so that you can deal or raise the matters that you have in your mind on

2 what we need to do and how we need to proceed. And then we'll go back

3 ourselves to what we have here.

4 MS. KORNER: Your Honour, I'm so sorry that you thought it was

5 advice. I was merely seeking --

6 JUDGE AGIUS: No. It's -- I take it as an advice too. Why not?

7 I mean, it's ...

8 MS. KORNER: Your Honour, can I deal with what is completely

9 absent from any filing by Mr. Ackerman. The Rule 65(G)(i) -- (ii) is the

10 list -- well, can I come back to (i). But (ii), a list of exhibits the

11 Defence intends to offer. I can start with that? There's a complete lack

12 of -- of any exhibits. The Defence invoked reciprocal disclosure and we

13 had a couple of disclosures - and by "a couple" I'll not saying it may not

14 have been more than two, but it wasn't very many - which for the most part

15 merely returned to us our documents that we had disclosed to him. So my

16 first request for Your Honours to make a ruling on is that we receive from

17 the Defence a list of exhibits that they intend to use with witnesses, in

18 the plural. In particular, if there are any documents to be produced

19 through witnesses which have not been disclosed to us before - and by that

20 I mean documents which we ourselves didn't disclose to the Defence - that

21 that be provided to us before the Defence case actually starts on the

22 13th -- on -- no, the 20th of October.

23 JUDGE AGIUS: Yes, Mr. Ackerman. This also -- was also one point

24 that I had made here: "The Defence has failed to file the following:

25 List of exhibits the Defence intends to offer in its case stating, where

Page 20830

1 possible, whether the Prosecutor has any objection as to authenticity,"

2 which is wishful thinking at the present moment because we don't even have

3 the list. That's number one. "In addition, copies of the exhibits so

4 listed have to be served on the Prosecution." And I had intended to ask

5 both of you to -- to enlighten us on this matter, because there may be a

6 reason for not having the list now, which I'm sure is going to be that we

7 never gave you enough time, Mr. Ackerman, to prepare your Defence.

8 MR. ACKERMAN: I haven't had enough time to put the list

9 together, Your Honour. And I -- if you ask me to identify one exhibit

10 right now that I'm going to use in the defence that I have not given to

11 the Prosecutor, I don't think I'd be able to do so. But that's kind of

12 the next thing on our list of -- of something to concentrate on rather

13 heavily. We do have documents, many of them have already been turned over

14 to the Prosecution, but I -- I just need to find the time and -- and the

15 people to sit down with the rest of those documents and see what of those

16 documents we really need to -- to use. I have sent off a couple of -- of

17 requests to -- to some people previously associated with the case just

18 asking them out of the kindness of their heart to assist me with this,

19 even though they won't be paid a cent for doing it. And because they're

20 very familiar with the documents and -- and I'm just doing this as rapid

21 as I can. But I think I can have that list to the Prosecutor and to Your

22 Honours before -- before too much longer.

23 Now, whether -- whether I'll be able to supply the Prosecution

24 with every document I intend to use with every witness by the time we open

25 our case on Monday, that's -- that's virtually impossible. But I can tell

Page 20831

1 you that we will operate just as conscientiously as the Prosecutor did.

2 We will sometimes bring a document in the day we intend to use it;

3 sometimes we'll supply it two days before, which is what the Prosecutor

4 did throughout their case. I don't think we should be held to any higher

5 standard.

6 JUDGE AGIUS: And what he -- was left for him to say was,

7 "Honourable Judges, what's good for the goose is also good for the

8 gander." So, Ms. Korner.

9 MS. KORNER: Well, we've had this goose versus the gander

10 syndrome before. But I would remind Your Honours that the only time that

11 documents were produced on the day that the witness was testifying was

12 when the witness suddenly arrived with a document. I'm not -- I

13 appreciate, of course, that this is going to happen. What I'm asking for,

14 first of all, is a list with a description of the documents that it is

15 intended to use for the witnesses. I'm then asking that in due time for

16 the particular witnesses called and particularly where -- and by

17 "new" I mean documents that were not disclosed to us to Mr. Ackerman. I

18 mean a witness who's going to come forward with -- and wouldn't be it

19 wonderful, for example, the minutes of the ARK Crisis Staff meetings.

20 That is something -- a document like that, which is clearly relevant and

21 important, then there will be an objection, Your Honour, and it's going to

22 slow the proceedings down because we're going to have to make inquiries

23 about it.

24 So, Your Honour, all of this is designed, firstly, that there

25 should be fair trial all round; that there shouldn't be a trial by ambush;

Page 20832

1 and third, that there should be as little delay to the trial as possible.

2 So I'm asking at the moment, Your Honour, that -- for a simple

3 order that by the 20th of October we are given a list. I'm asking at the

4 moment for copies, and we'll see how we go from there.

5 JUDGE AGIUS: Yes. Can you live with that, Mr. Ackerman?

6 MR. ACKERMAN: Well, Your Honour, I'll do my best. I -- I really

7 want -- I just -- I want it to be very clearly understood as much by -- by

8 Ms. Korner as by the Trial Chamber that the last thing in the world that I

9 will do is withhold a document for tactical reasons just to -- to drive

10 the Prosecution crazy and make life difficult --

11 JUDGE AGIUS: [Previous translation Continues] ... if I catch you

12 doing that, Mr. Ackerman, you will be in serious trouble.

13 MR. ACKERMAN: Well, I should be. And I wouldn't do that and I

14 will not do that. I'm going to provide things to the Prosecution as soon

15 as I know what I'm going to do with them; they'll be the first people to

16 know.

17 JUDGE AGIUS: Yeah. But unfortunately we cannot continue using

18 such descriptions as "as soon as" or -- let's fix a date. It has been

19 suggested for the handing over of a list 20th of October. You should have

20 at least a provisional list provided by that day. Today is only the 9th.

21 Mr. Ackerman. It's a Monday. It's not -- the 20th is a Monday.

22 MR. ACKERMAN: Well, Your Honour --

23 JUDGE AGIUS: So you have two weekends.

24 MR. ACKERMAN: It's --

25 JUDGE AGIUS: Unless you're going back to Yugoslavia or to --

Page 20833

1 MR. ACKERMAN: It's me and Mr. Vujic. Mr. Cunningham is in court

2 in the United States.

3 JUDGE AGIUS: But he will be back when -- he will be back next

4 week, no?

5 MR. ACKERMAN: Yeah, he'll be back next week. We have two rather

6 complicated expert witnesses to cross-examine. We have another

7 complicated witness for Mr. Cunningham to cross-examine. We can stop

8 preparing for those witnesses and put together this witness list, which

9 seems to me an extraordinarily foolish thing to do.

10 If you say the 20th, we'll come up with some kind of a list on

11 the 20th, but it's going to be -- it's going to be as good as we can do at

12 that point. I can't guarantee that it's going to be -- I can't make it

13 any better than I can make it. I'll do the best I can, that's all I can

14 tell you; I'll do the best I can.

15 JUDGE AGIUS: But you're forcing my hands because -- you know, I

16 mean, I -- I will be the first one to be criticised if I allow proceedings

17 to go on with, you know, along these lines. Yes, let's see and let's see

18 and -- I am supposed to establish a deadline.

19 MR. ACKERMAN: Well --

20 JUDGE AGIUS: I wouldn't like to establish a deadline if you can

21 come forward and tell me, "Judge, by the 20th you will all have a list."

22 MR. ACKERMAN: You know, it would help a great deal if this

23 Tribunal would honour the commitment to equality of arms. It refuses to

24 do so. The Prosecutor has a huge staff; you order them to produce a list

25 by the 20th, they can put 15 people to work on it and do it. I can put

Page 20834

1 one person to work on it, maybe two if I'm lucky, because I don't get

2 equality of arms. I don't get the staff that I need. I'm never given the

3 staff that I need --

4 JUDGE AGIUS: Yes, but Mr. Ackerman --

5 MR. ACKERMAN: -- and that's not fair.

6 JUDGE AGIUS: -- you haven't come into this case now. You've

7 been in this case for two years plus.

8 MR. ACKERMAN: With the same limited staff --

9 JUDGE AGIUS: I would never believe you or take you seriously if

10 you were to stand up and tell me, "Judge, I don't know what documents to

11 -- I will be -- exhibits I will be intending to offer." Maybe you

12 haven't organised them in a list, but I'm pretty sure you know exactly

13 what documents -- or at least the majority of exhibits that you will be --

14 MR. ACKERMAN: I do not, and that's why I'm telling you'll that's

15 how well I can do this. I may have 100 documents, 20 of which I'm going

16 to use, but I'm not sure which 20 yet. I may have 240 that I'm going to

17 use. I can't tell you that right now.

18 JUDGE AGIUS: Yeah. But that puts you in the same position as

19 the Prosecution. And then with the Prosecution we have always had a

20 situation from one month to the -- to the next of having initially a big

21 binder or a big folder of documents intended to be tendered and then we

22 end up with maybe -- maybe two or three or five per cent of those

23 documents.

24 MR. ACKERMAN: I'm never in the same position as the Prosecution,

25 never, because this Tribunal will not recognise the concept of equality of

Page 20835

1 arms and will not supply the Defence with the kind of resources necessary

2 to accomplish our task. Right now we have a bunch of documents that we

3 might want to use that are sitting with a translator that was approved by

4 the Registrar to do translations for us in Banja Luka who they haven't

5 paid yet this year and she has said, "I'm sorry, I can't work any longer

6 for you. I have to do paying work." They haven't paid her once this year

7 yet, so she has to quit. So we've got a stack of documents there that we

8 can't get translated. We run into these kind of problems all the time.

9 Our investigators are limited in hours. We asked them to do a task and

10 they can't do it or if they do it, they don't get paid for it. We have

11 enormous problems that the Prosecution never faces because of the lack of

12 equality of arms. And now to say that we must perform at a higher level

13 than what is expected of the Prosecution is just unfair. But I'll tell

14 you that I will do everything I can and I will work almost non-stop to get

15 it done. I will insist on sleeping a little bit, but that's about it.

16 JUDGE AGIUS: Now, the date -- let's work this out first, because

17 we have the Rules and I have to stick to the Rules to start with. I

18 cannot create Rules myself.

19 The case -- the Defence case officially starts when? On the 12th

20 we have got --

21 MS. KORNER: The Defence case starts on the 20th, Your Honour.

22 JUDGE AGIUS: On the 20th.

23 MS. KORNER: Which is the Monday.

24 JUDGE AGIUS: On the 20th.

25 MS. KORNER: Unless the next week's witnesses run into the

Page 20836

1 Monday, but otherwise it's the Monday.

2 JUDGE AGIUS: Because -- because 65 ter (G), Mr. Ackerman,

3 doesn't leave me any options. It doesn't also say that the list of

4 exhibits will be the one and only that you will offer or that it cannot be

5 changed or that you will be bound by it due and thus. There is the

6 possibility, but the Rule is very specific, that this has to be filed

7 before the commencement of the Defence case. So we'll -- I am going to

8 establish the 20th as the day -- the time limit by which you -- you are to

9 file this list of exhibits with the understanding that we all appreciate

10 that this may not be the final list, that that would be subject to

11 alterations, to amendments.

12 At the same time, I do need to draw your attention to the fact

13 that according to the second paragraph of 65 ter (G), then you are

14 expected also to serve on the Prosecutor copies of the exhibits. So --

15 which shouldn't be difficult once you have established at least which --

16 which documents you're going to -- which exhibits you intend to offer.

17 MR. ACKERMAN: Your Honour, there -- there will be a list as of

18 that date, and there's no reason not to serve copies at the same time we

19 produce the list. I mean, that -- that doesn't make any sense. So I'll

20 certainly serve the copies at the same time I produce the list.

21 JUDGE AGIUS: All right. So that solves temporarily at least the

22 problem.

23 Basically, for the record, the -- the attention of the Defence

24 was drawn to the fact that a list of exhibits the Defence intends to offer

25 in its case as requested by Rule 65 ter (G)(ii) has not been filed and the

Page 20837

1 Trial Chamber is establishing a deadline for the filing of this list, the

2 20th -- the 20th of October, Monday, the 20th of October. And then we'll

3 see from there.

4 MR. ACKERMAN: I just want to make it clear to Your Honours and

5 for the record that there are a large number of documents that are in the

6 translation process, either with CLSS or with the person in Banja Luka

7 who's not working now, that -- that might very well, in fact, very likely,

8 will become exhibits, but I cannot make that determination until I can

9 actually read the translations.

10 JUDGE AGIUS: I understand that, Mr. Ackerman.

11 Incidentally, while we are on this point, have you brought up the

12 matter of this translator or interpreter in Banja Luka not paid being by

13 the Registry with the Registrar?

14 MR. ACKERMAN: Two weeks ago I resubmitted her invoices with a

15 note saying: "These invoices have not received any attention. Please

16 give them some attention." Two weeks has gone by and nothing has

17 happened. I sent another memo today saying, "Please look into this. Tell

18 me what's going on with this, because she's stopped doing translations.

19 Other people are paying her to translate, so she's doing their work

20 instead of ours." And so that's where I've gotten so far. And I haven't

21 gotten a reply back. That was a memo that I just sent today.

22 JUDGE AGIUS: All right. I will check this -- this with the

23 Registrar myself as well. From my experience, the Registrar gives these

24 matters its utmost attention, and I'll see whether there is a particular

25 reason, as sometimes there is, why this matter is being protracted. In

Page 20838

1 which case, if it is a matter which is reserved to the Registrar, I will

2 certainly not get involved, and please don't expect me to get involved.

3 Yes. Before we move to the estimated length of Defence case,

4 number of witnesses, et cetera, is there anything else you would like to

5 raise, Ms. Korner?

6 MS. KORNER: Oh, yes, Your Honour, there is.

7 JUDGE AGIUS: Yes, please. Go ahead.

8 MS. KORNER: Your Honour will see in the -- I'm now referring to

9 the last filed list of witnesses.

10 JUDGE AGIUS: Yes.

11 MS. KORNER: Dates of birth appear for some but not for most.

12 The reason that we asked for the dates of birth, as I made clear to Your

13 Honour, I think, before we broke, is that in order to conduct meaningful

14 searches of documents which relate, or statements which relate to these

15 witnesses, so that if there's anything which may assist Your Honours in

16 assessing these witnesses which we are in possession of can be made.

17 Your Honour, I would like the dates of birth of these witnesses

18 for whom they have not been supplied. And Your Honour, the first question

19 almost of any investigator taking a statement from a witness will ask is,

20 What is your date of birth? Or potential witness. And Your Honour, that

21 must be, I would submit, in the possession of Mr. Ackerman or his

22 investigators but has not been supplied. I don't know why.

23 Your Honour, the adequacy of the summaries is a matter which Your

24 Honours have already touched upon. It is simply not enough to say, for

25 example, if I can take Your Honours to number 40, on the list --

Page 20839

1 JUDGE AGIUS: Incidentally, don't mention names.

2 MS. KORNER: I'm not going to. I'm going to mention numbers.

3 JUDGE AGIUS: Exactly. Because the list is confidential still,

4 you know, because of obvious reasons.

5 Yes, 40. Yes.

6 MS. KORNER: That tells you absolutely nothing at all. The

7 actions of paramilitary formations in Teslic in the arrest and detention.

8 Was he part of a formation? What exactly is he going to be saying?

9 Number 42, who will testify about inter-ethnic relations in the

10 relevant time period. We can get guess as to where he's coming from. It

11 actually says it above there. But nonetheless, Your Honour, it's simply

12 inadequate.

13 And can I say I know that Mr. Ackerman can do better, because in

14 respect of the -- can I take Your Honours to witnesses number 50 and

15 number 55. Your Honour, can I into private session for what I want to say

16 now?

17 JUDGE AGIUS: Let's go to private session for a while, please.

18 [Private session]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 20840

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 20840 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 20841

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [Open session]

7 MS. KORNER: Your Honour --

8 JUDGE AGIUS: We are in open session.

9 MS. KORNER: Your Honour, can I repeat what I was saying? The

10 running order of these witnesses we don't expect, because, of course, as

11 Your Honours know and we know, we have expected to call witnesses in a

12 certain order and it hasn't worked. But we've given a rough running

13 order. We've said we're going by municipality and this is the order

14 within the municipality, and we can produce all the various documents that

15 we gave to Mr. Ackerman. I'm asking for -- we've had now what is

16 anticipated to be the witnesses for the first three weeks. I'd like a

17 running order for -- for the whole lot or at least until Christmas, again

18 so that we can prioritise our searches. We have a unit that does this for

19 us, but they have competing demands for other teams, and to make the best

20 use of that unit, we need to be able to give them a running order. So,

21 Your Honour, that's what I'm asking.

22 Perhaps I can finish what I want to say with the -- the last on

23 this list, so series of witnesses. And that is Your Honour will see that

24 it is apparently intended to call witnesses from Bosanska Gradiska --

25 JUDGE AGIUS: Bosanska Dubica.

Page 20842

1 MS. KORNER: -- Bosanska Dubica, and unless they're gone from the

2 latest list, Glamoc appeared somewhere.

3 JUDGE AGIUS: Yes. And Laktasi --

4 MS. KORNER: And Laktasi.

5 JUDGE AGIUS: Yes. I have identified these -- again, not with

6 reference to the latest of these lists, because it only arrived at 1.30,

7 and I had prepared this already. So -- but there is Laktasi and Glamoc.

8 MS. KORNER: Yeah.

9 JUDGE AGIUS: And we're talking of two witnesses in Laktasi and

10 one witness in --

11 MS. KORNER: And then we have --

12 JUDGE AGIUS: You have two from Bosanska Gradiska and one from

13 Bosanska Dubica. It may well be that they are considered to be important,

14 relevant, even though Bosanska Gradiska and Bosanska Dubica are no longer

15 in the indictment itself. But if you read the summary, this -- the

16 summary of the intended testimony, it's -- they are going to supposedly

17 testify on the events -- for example, let's take Gradiska, under 35. We

18 will not say who he is or what he did. He will testify about the

19 situation in the town before and during the war, the functioning of local

20 authorities, the relation between them, and the ARK. This may be relevant

21 obviously, you know, but -- but I don't know. It's -- it's something that

22 Mr. Ackerman has to think about and decide. And if he insists on bringing

23 forward this evidence, I -- this testimony -- witness, I can't stop him.

24 MS. KORNER: No, Your Honour, the reason I'm raising it, for two

25 reasons: One, the -- Mr. Brdjanin stands in no danger of conviction in

Page 20843

1 relation to any of these municipalities.

2 JUDGE AGIUS: No.

3 MS. KORNER: That's the first thing.

4 The second is this: What it will do, Your Honour, is open up a

5 can of worms in the sense that in order to cut things down -- we never

6 looked at Glamoc or Laktasi, but we -- we deliberately reduced the

7 evidence we would call by omitting any evidence from Gradiska and Dubica.

8 Your Honour, if any evidence is called on behalf of the Defence, then

9 almost assuredly our application will be to call evidence in rebuttal

10 depending, obviously, on what the evidence says, but so that Your Honours

11 get a clearer picture, it may be, of what happened in these particular

12 municipalities.

13 As to Laktasi and Glamoc, which have never figured at all in this

14 case, again, if Mr. Ackerman convinces Your Honours this is relevant and

15 admissible to an issue in the case, then of course Your Honours no doubt

16 will rule, but again, it will lead to the problem that our application

17 almost certainly will be to call evidence in rebuttal relating to two

18 municipalities about which Your Honours have heard absolutely nothing at

19 all in the course of 18 months.

20 So Your Honour, that's the only reason I'm raising that last

21 part.

22 Your Honour, and I think that's -- those are the four -- really

23 the four aspects, that is, the -- the dates of birth, the adequacy of the

24 summaries, the running order, and those particular municipalities.

25 JUDGE AGIUS: [Microphone not activated] Yes. Let's start with

Page 20844

1 the -- let's start with the last of these four, Mr. Ackerman. I will

2 definitely not engage in any discussion with you as to whether you should

3 or should not call these witnesses. I just want to know whether you,

4 after having heard what Mr. -- Ms. Korner said and what I just mentioned,

5 because I understand that -- I wouldn't even want to start thinking that

6 you put these witnesses down not realising that Laktasi and Glamoc were

7 not in the case. You obviously know that they are not in the case, just

8 as much as you know that Bosanska Gradiska is no longer in the case and

9 Bosanska Dubica is no longer in the case. So you definitely have a reason

10 for indicating these persons in the first place. So I would like to know

11 from you whether you are going to insist on these persons, yes or no; in

12 which case you have to go-ahead, straight away as from now, because on a

13 prima facie basis, even looking at the scanty summary that I have here, I

14 don't think I can stop you.

15 MR. ACKERMAN: Your Honour, I -- I view my obligation at this

16 point with regard to a witness list as an obligation to furnish to the

17 Chamber and to the Office of the Prosecutor a list of -- of all the

18 witnesses that I know at this point that I might conceivably call as

19 witnesses in the defence. Whether I in fact wind up calling all the

20 people on this list is completely another matter, and I can -- and just as

21 the Prosecutor did, I'm quite certain that this list will get whittled as

22 we go along depending on what happens actually here in the Chamber. So I

23 can say this: I have no intention of calling everybody that's on this

24 list. We will not call all the people on this list, but I don't know

25 exactly who we're going to remove at this point.

Page 20845

1 With regard to those municipalities that are not within the

2 indictment, Laktasi, Glamoc, Bosanska Dubica, those places, I certainly

3 will not call any witnesses regarding to what one might call crime based

4 evidence regarding that happened in those municipalities, and to some

5 extent, these summaries were not properly written in there in the first

6 place. There may be relevance with regard to these witnesses, Your

7 Honour, with regard to the impact that decisions --

8 JUDGE AGIUS: I grant you that. I grant you that. I mean,

9 it's --

10 MR. ACKERMAN: So that's what's going on with those.

11 With regard to witness order, Your Honour, we are actively trying

12 to get that together. And we supplied the Prosecutor with documents and

13 Your Honours today with documents with the witness order for the first

14 three weeks. We have all been sitting since we got back yesterday working

15 on this and writing larger and longer and more detailed summaries with

16 regard to these witnesses.

17 Now, a number of the witnesses that we're calling, Your Honour,

18 the Prosecution has spent more time speaking with them than we have, and

19 so if -- as Ms. Korner said, she already has the statements that they gave

20 to us plus everything that -- that they said to them. So it's not --

21 we're not going to be able to enlighten her very much about some of them

22 that she doesn't already know. I understand she's mostly concerned about

23 those she knows virtually nothing about at this point. And we're moving

24 through that material as rapidly as we can. And what we're trying to do

25 is give her expanded summaries and information regarding the witnesses

Page 20846

1 that we're going to be calling first. I don't want to create difficulties

2 for the Prosecution by -- by suggesting to them some witness who we're

3 actually going to call last is going to be called in the fourth week and

4 make them spend a bunch of time spinning wheels about that. So I'm trying

5 to get the order worked out.

6 I think within a fairly reasonable time we'll be able to give a

7 witness order through -- through the Christmas break. I don't think it

8 will take us long to get to that point. The summaries we're just writing

9 as fast was we can write them because we've just recently had an

10 opportunity to speak with these witnesses at some length and ask the kind

11 of questions that only lawyers who are familiar with the case can -- can

12 come up with, rather than investigators who have no idea what's going on

13 here, can't read the testimony.

14 JUDGE AGIUS: We appreciate that, Mr. Ackerman.

15 MR. ACKERMAN: So that's what I'm doing with summaries.

16 Now, I really kind of resent the allegation that I have the dates

17 of birth of these witnesses and I'm just refusing to turn them over. I

18 don't have them and my investigators don't have them. And I wish you

19 could be sitting in the room when I was yelling at the investigators

20 and telling them to please get them.

21 And I can tell you one thing that's happened with about two or

22 three of these witnesses: We're having a very difficult time with some

23 witnesses, Your Honour, because they're frightened. We have witnesses who

24 are afraid that if they come here they'll be arrested and not allowed to

25 go home. And we explain safe conduct, we do all that sort of thing. And

Page 20847

1 three of the witnesses that I know of who were called last week for their

2 date of births refused to give them because they thought it would give the

3 Prosecution some reason to -- to arrest them or harass them or something

4 like that. We're making it clear to them that we can't use them if they

5 won't give us that material rather quickly. We're trying to get it. I --

6 I think that's probably the highest priority that our investigators have

7 right now is to get those. We've supplied a lot of them. We've managed

8 to get a lot of them since the first list. If you compare the first list

9 to this one, you'll find a lot more birth dates on it than were on the

10 original one, and we're -- we're getting them together as quickly as we

11 can. We certainly have them for the first -- first several witnesses that

12 are going to be called, because the -- the VWS also requires that

13 information, so to get there, we have to get them. And unlike the

14 Prosecution, we don't have a unit that does this kind of thing for us,

15 which Ms. Korner just told you about their unit that does this sort of

16 thing for them. Again, that -- that highlights the lack of equality of

17 arms. We don't have a unit that does anything for us. It's just the few

18 of us who -- who labour mightily to try to -- to get where we get with

19 this. And it would be nice if we had a unit that would do this for us and

20 a unit that would do that for us, but only the Prosecution gets those kind

21 of resources; we don't.

22 I think I've covered all the things that she mentioned, Your

23 Honour.

24 JUDGE AGIUS: I think so.

25 MS. KORNER: Your Honour, I knew -- I knew the moment -- or

Page 20848

1 rather, somebody else reminded -- the moment I mentioned a unit, that

2 Mr. Ackerman would seize upon this. Your Honour, I think I ought to make

3 it clear, because Mr. Ackerman does say this a lot and so do other Defence

4 counsel.

5 The Office of the Prosecutor - and I know Your Honours know this

6 - is dealing with hundreds and hundreds of investigations and -- and the

7 like. It is not that everyone who's appeared in this case is individually

8 devoted to this case. Everybody is doing other tasks at the same time.

9 And so this -- the so-called over-mighty resources we have is because

10 we're dealing with a large number of investigations and cases. So can I

11 make that clear.

12 All I want to come back on, please, is two matters. The first is

13 Mr. Ackerman says for many of the witnesses the Prosecution know more

14 about them than we do and, for example, those statements that we obtained.

15 They were the only two statements that were made to the Defence that were

16 given to us that I recall. But in any event, that's not quite the point.

17 Even though we may have interviewed them, we may have interviewed them

18 over a large-ranging matter -- subjects. We need to know what they're

19 coming here to tell Your Honours about. And in fact, Your Honours need to

20 know what they're coming to tell Your Honours about. And so we'd still

21 like to know exactly what it is that the witnesses, even those that we've

22 interviewed, are going to say.

23 In respect of Glamoc and Laktasi and Gradiska and Dubica --

24 JUDGE AGIUS: And Novi Sad as well.

25 MS. KORNER: Yes. Mr. Ackerman says he may not call them.

Page 20849

1 That's all well and good, but, Your Honour, because -- particularly with

2 the last two, they've never even formed part of our case, we're going to

3 have to do some investigations into it and devote manpower and money to

4 that if Mr. Ackerman is going to call evidence about it. And so,

5 therefore, I'll ask again that it should be sooner rather than later that

6 Mr. Ackerman tells Your Honours and us whether or not these witnesses are

7 going to be called.

8 JUDGE AGIUS: Yes. That's fair --

9 MS. KORNER: And that's not an unreasonable request,

10 Mr. Ackerman.

11 JUDGE AGIUS: No, it's not an unreasonable request, Ms. Korner,

12 but I don't think we can solve -- solve the matter today.

13 MS. KORNER: Oh, no. Your Honour, I'm sorry; I'm not saying it

14 needs to be resolved today.

15 JUDGE AGIUS: I know what you're --

16 MS. KORNER: But it does need to be resolved within, Your

17 Honours, I would say the next month.

18 MR. ACKERMAN: Your Honour, the Prosecution has a list of, I

19 think, 291 witnesses. Never at any point did the Prosecution tell us,

20 "You know, you can stop worrying about this witness; we're not going to

21 call them. That never happened. They just told us the ones they were

22 going to call from that list. They never said we've decided not to call

23 these witnesses, although they decided that, you know, long before we ever

24 knew they weren't coming. So I don't have any sympathy for them having to

25 investigate witnesses that we might wind up not calling. It's what we

Page 20850

1 spent hours doing for witnesses that they didn't call and probably for a

2 long time had no intention of calling. They never gave us that

3 information, so I don't know why we should give it to them.

4 MS. KORNER: Your Honour, I'm sorry; I'm obviously not making

5 myself very clear. It's not witnesses in respect of Laktasi and Glamoc.

6 We would have to investigate the two municipalities because Your Honours

7 could be maybe even inadvertently misled by a witness coming along from a

8 municipality about which you've heard absolutely nothing and we've heard

9 absolutely nothing giving you an account of things which bear very little

10 relationship to what actually happened. And that's -- that's why I'm

11 asking.

12 JUDGE AGIUS: Ms. Korner, at the moment I am relying on my

13 experience and -- and try to keep my mouth as shut as possible. But in

14 reality, you ought to remember, both of you, that at the end of the day,

15 when the moment arrives that the witness takes the witness box and starts

16 giving evidence, if he starts saying blah, blah, blah, on things that are

17 not relevant in our opinion, we'll stop him. So I -- I can tell you as

18 from now that unless I am seriously convinced of the contrary, I am not

19 interested in hearing of the events in -- in -- say, if we take Laktasi,

20 he can testify about the events in Laktasi before and during the war. Are

21 we interested in those? I mean, I concede to Mr. Ackerman that he has

22 conceded already that maybe the summaries here have not been crafted in --

23 in as desirable a fashion as possible. But apart from that, if he -- if

24 he takes the witness box -- the witness stand to testify on Brdjanin's

25 role because Brdjanin also had a role in -- in the events of the

Page 20851

1 municipality of Laktasi, we'll see -- we'll see what the relevance is and

2 we'll take it up from there. But --

3 MS. KORNER: I'm sorry, Your Honour, I'm sorry to interrupt you,

4 particularly the interpreters, but Your Honour, it's a bit late then when

5 the witness is in the witness box when we don't know what he's going to

6 say. Unless Your Honours make a ruling here and now -- well, not here and

7 now but within a short period of time, that if any witness from this

8 municipality is to be called, the only aspect on which he will be allowed

9 to testify is any relationship between himself and Mr. Brdjanin. But if,

10 Your Honour, it goes further than that --

11 JUDGE AGIUS: Or also Brdjanin's -- Brdjanin's role. Also

12 Brdjanin's role. I mean, it's --

13 MS. KORNER: Absolutely, Your Honour. But then I have to know

14 that. And I think the best thing is that Your Honour at least orders that

15 summaries for these potential witnesses --

16 JUDGE AGIUS: Yeah, the actual problem is the summary.

17 MS. KORNER: -- that we get full and proper summaries of what it

18 is anticipated these witnesses from Laktasi and Glamoc will say, and that

19 to be done before almost anything else.

20 MR. ACKERMAN: Your Honour, what have I said today to cause the

21 Prosecution to believe we're not going to give them summaries? I've said

22 over and over that we're working on the summaries. And it doesn't make

23 any difference who the witness is, they're going to get summaries of

24 exactly what they're coming here to talk about. I mean, this is just --

25 JUDGE AGIUS: We need to improve in that -- in that sector.

Page 20852

1 MR. ACKERMAN: If you look at the materials I gave you today,

2 Your Honour, they contain much more detailed summaries than are in the

3 witness lists. And that's what we're doing, we're writing those

4 summaries.

5 JUDGE AGIUS: Yeah, that I realise.

6 MR. ACKERMAN: And it's what we're doing. Some of the witnesses

7 we have statements from and those will be turned over.

8 JUDGE AGIUS: But let's -- let's -- because what you're saying

9 makes sense and what Ms. Korner raised earlier on also is justified.

10 Laktasi, Glamoc, Novi Grad, and -- and Bosanska Dubica, Bosanska Gradiska

11 to a lesser extent. I can't -- I can't expect from the Prosecution to be

12 prepared to deal with any of the witnesses that you bring forward coming

13 from these municipalities if I know that the -- the Prosecution has not

14 had any need at all to conduct any investigations or -- or obtain more

15 information on what happened in these municipalities.

16 MS. KORNER: Can I make it clear. I can't --

17 MR. ACKERMAN: Please, please, please, let me try to stop this.

18 Because let me just make it really clear: We are not, as I said before,

19 opening any crime-based issues with regard to any of these municipalities.

20 The only reason that we might call those witnesses have to do with the

21 relationship of that municipality to the ARK Crisis Staff or the

22 relationship of Mr. Brdjanin to that municipality, and that's the

23 information you need to know and I just gave it to you. I'll give it to

24 you in more detail at a later time, but I am not going to open that whole

25 can of worms that she talks about. I've said it twice now; that should be

Page 20853

1 enough.

2 JUDGE AGIUS: Fair enough, Mr. Ackerman. And I would agree with

3 you, if you restrict it to this, because it makes sense. But the

4 Prosecution ought to know because what you say in the summary is not that.

5 If you refer to number 57, without saying who he was or what position he

6 occupied, just -- he can testify about the events before, during the war,

7 and his relation with Mr. Brdjanin. Let's reserve the last part and say

8 that is relevant even -- on the face of it even though it is as scanty as

9 can be. But what does the rest have to -- have got to do with the matters

10 that we are discussing?

11 MR. ACKERMAN: Absolutely nothing. It shouldn't have been in

12 there in the first place.

13 JUDGE AGIUS: Okay. Granted. So let's move along the direction

14 that I mentioned before. I conceded that -- you conceded that the

15 crafting of this other is unfortunate, as it is here. It's -- well, I

16 read this. I -- obviously I have the same feeling that you have. You

17 should be in a -- put in a position. But if it's going to be restricted

18 to -- I was going to give an example myself, but Mr. Ackerman himself

19 brought the matter up. If it's a question of, for example, the

20 relationship or -- between that particular municipality and Mr. Brdjanin

21 or the ARK Crisis Staff, obviously there is relevance -- relevance there.

22 But you ought to know. This is -- this is where I definitely agree 100

23 per cent with you.

24 MS. KORNER: Your Honour, first of all, in fact, it's -- I see

25 although it's listed under Laktasi, number 57 is in fact --

Page 20854

1 JUDGE AGIUS: Yeah, I know --

2 MS. KORNER: And what I --

3 JUDGE AGIUS: -- but I don't want to -- I don't want to mention

4 the --

5 MS. KORNER: No. Then this is Srbac apparently.

6 JUDGE AGIUS: Yeah. But I don't know where Srbac is. I mean,

7 it's --

8 MS. KORNER: Your Honour, I'm just saying this: First of all,

9 Novi Grad is actually Bosanski Novi. It's the Serb name for it. So we do

10 know -- Your Honours have heard evidence about Novi Grad.

11 JUDGE AGIUS: Okay.

12 MS. KORNER: But secondly, it's -- it's not, in our view, going

13 to be possible to divorce what happened in a municipality from someone

14 testifying about the relationship of the Crisis Staff in that municipality

15 and Mr. Brdjanin, because one of the -- the major planks, of course, in

16 this case is that regardless of the technical legality or illegality of

17 the Regional Crisis Staff, the Municipal Crisis Staff implemented the

18 decisions. And to show the implementation of those decisions, you would

19 have to look at what actually happened. And that's the difficulty.

20 So Your Honour, I've raised the issue, and I think all we can do

21 now is wait for your -- for Mr. Ackerman to provide a proper summary of

22 what these witness will be saying.

23 JUDGE AGIUS: I think so, Ms. Korner. I think so. I think the

24 message has been well taken by -- by us and by Mr. Ackerman, and I'm sure

25 Mr. Ackerman will help us in the right direction.

Page 20855

1 So anything else, Ms. Korner, before I continue myself?

2 MS. KORNER: Your Honour, no, I think that's all we wanted to

3 raise about the -- about the Defence witness list.

4 JUDGE AGIUS: All right. Now, let's take the rest bit by bit.

5 The revised list of witnesses, however complete or incomplete it may be,

6 is, as I take it, Mr. Ackerman, still subject to modifications as we go

7 along?

8 MR. ACKERMAN: Your Honour, the -- the modifications would be,

9 you know, if -- if we somehow encounter a -- a highly relevant witness

10 that we believe needs to be called to complete the picture in this case,

11 we -- we would certainly ask leave to add that person. But the major

12 modification of this list as we go along is going to be reduction.

13 JUDGE AGIUS: Reduction. Okay. You also stated somewhere that

14 at present there are no witnesses which you intend to bring forward to

15 testify pursuant to Rule 92 bis. Is that still the position?

16 MR. ACKERMAN: That's still the position. There is one now that

17 we are considering that with regard to, but we probably won't do it. The

18 problem is, Your Honour, we -- we're not doing crime base witnesses, so

19 virtually any witness we call has to do with acts and conducts of the

20 accused, and that would not be a 92 bis possibility.

21 JUDGE AGIUS: But I would have imagined that that part was

22 intended to be to the advantage of the accused.

23 MR. ACKERMAN: I -- I would think --

24 JUDGE AGIUS: It's -- in other words, the right to object.

25 MR. ACKERMAN: Well, maybe. It's my view that Ms. Korner would

Page 20856

1 object if the witness is going to go into the acts and conducts of the

2 accused and would want to cross-examine --

3 JUDGE AGIUS: She has a right to object obviously, but I --

4 MR. ACKERMAN: And --

5 JUDGE AGIUS: But I don't think you ought to put in the same

6 basket, at the same level, the Prosecution and the Defence when it comes

7 to reading that article, no?

8 MR. ACKERMAN: Well, the Rule -- is Rule certainly doesn't make a

9 distinction, Your Honour. It applies to both sides equally.

10 JUDGE AGIUS: Okay. I grant you that but --

11 MS. KORNER: Your Honour, may I put it this way -- sorry. If

12 Mr. Ackerman has a statement that says Mr. Brdjanin is kind dogs and cats,

13 I hardly think that I'm going to ask for the witness to be called to be

14 cross-examined. It's a question of fact and degree in each case.

15 Your Honour, I'm so sorry, there was one other matter. I'm sorry

16 to interrupt Your Honour again, but I forgot about that. It goes back to

17 the ruling that Your Honour made a very long time ago in January 2002

18 about the defendant testifying.

19 JUDGE AGIUS: Yes. I'm coming to that. Don't worry.

20 MS. KORNER: Oh, Your Honour was going to deal with it.

21 JUDGE AGIUS: Yeah. I'm coming to that. In fact, it's the very

22 last thing I -- and I'm also prepared to refer to the case law of this

23 Tribunal on the matter.

24 So, Mr. Ackerman, we can cut this short. You have also indicated

25 and you have repeated it several times today, that you -- there is a

Page 20857

1 possibility of reducing this list. You actually stated elsewhere that

2 there is also a possibility -- that you may be able to reduce your case by

3 a third. Do you have an indication already as to which third that would

4 be? I mean, if you refer to witnesses.

5 MR. ACKERMAN: Your Honour, it's --

6 JUDGE AGIUS: Or is it still very vague in your mind?

7 MR. ACKERMAN: It's extraordinarily difficult at this point to

8 project how long -- because I've not seen the Prosecution do any

9 cross-examination yet. It's impossible to predict in my mind right now

10 how long these witnesses are going to take when you add on the

11 cross-examination how many of these witnesses we will be able to put on

12 very rapidly. And I don't think we will call one witness that took as

13 long as some of the Prosecution witnesses. So we'll -- we'll move through

14 witnesses a lot more rapidly, I think, than the Prosecution did in some

15 respect. But I don't know how long the cross-examinations will take, of

16 course.

17 The other thing: Our current planning right now is that the

18 expert witnesses would be called near the very end of the case, and we

19 expect that will be in January. And so we're believing that -- that we

20 can finish before the end of January. That's -- that's our hope, which

21 should be, I think, three or four weeks ahead of -- of the amount of time

22 we've been given, because I think -- I think, if I look at the schedule

23 properly, we're -- we're scheduled through the end of February. I think

24 we can be finished before that. We'll certainly -- we certainly -- I

25 can't imagine that we would go -- even try to go beyond the number of

Page 20858

1 weeks that you've allotted for the matter. And that would include - and

2 I'll tell you now, although I failed to bring the date today - we have --

3 we have not completed, and I eluded to it earlier -- we have not completed

4 the work that we absolutely must do in Bosnia. And I'll be applying to

5 you for about a seven-day adjournment, I think in November, so that we can

6 return to Bosnia and complete our work there. That does not change my

7 view as to when we will complete the case. But we really do need to go

8 back there and finish the work that we've -- that we've started there,

9 because what I -- what I will not do, Your Honour, is -- is bring

10 witnesses here at the expense of the Tribunal, sit and talk with them, and

11 decide to send them home because I'm not going to use them. So I insist

12 on speaking to the witnesses personally before I will bring them here and

13 put the Tribunal to the expense of bringing them here. I need to speak to

14 a few more people there, and we'll be finished with that process. The end

15 is -- is in sight, but we think we need about a seven-day adjournment to

16 do that.

17 JUDGE AGIUS: Yes. I understand that, Mr. Ackerman. If you

18 could let us have well in advance the dates when you would like this

19 break.

20 MR. ACKERMAN: I think it's the 13th of November, Your Honour.

21 What I'm asking for is the Friday of -- of -- I can probably tell you

22 right now. Just a minute.

23 JUDGE AGIUS: Because we have got, all of us, other work to do

24 and we can use that time frame for other cases that we are handling with.

25 If we -- if we get the Maglov contempt case on that particular

Page 20859

1 week, do you require to be here, Mr. Ackerman?

2 MR. ACKERMAN: No.

3 JUDGE AGIUS: No. All right.

4 So which week did you have in mind?

5 MR. ACKERMAN: It looks -- I'm now a little bit confused, Your

6 Honour, but I think -- I think the week we have in mind is that we would

7 off on the 15th of November and resume on the 26th. So we -- we would not

8 sit on the 15th and we would not sit on the 25th. And then the week --

9 that intervening week. I believe that's what we have in mind as to what

10 would work well for us.

11 JUDGE AGIUS: The 25th is what day? The 26th is what day?

12 MR. ACKERMAN: The 25th is a Monday, and the -- and that's also

13 -- and then the -- the 15th is a Friday. So we would not sit on that

14 Friday, then we would have the full week off, not sit on the following

15 Monday, and resume on the 26th, which is a Tuesday.

16 JUDGE AGIUS: All right.

17 MR. ACKERMAN: Well -- I'm wrong about that. That's all wrong.

18 JUDGE AGIUS: But you can confirm this to us as early as you can,

19 please.

20 MR. ACKERMAN: It's actually the 14th is the Friday and the 24th

21 is the Monday.

22 JUDGE AGIUS: If you can let us have --

23 MR. ACKERMAN: Yes.

24 JUDGE AGIUS: -- the fixed dates.

25 MR. ACKERMAN: I'll put it in writing and send it to you.

Page 20860

1 JUDGE AGIUS: Yeah. Okay. Thank you.

2 So -- I take it also, Mr. Ackerman, that -- I barely need to say

3 this, but I will say it: If you intend at any one stage to go beyond the

4 list of witnesses, in other words, to bring forward additional witnesses,

5 then we will require good prior notice, and not just me but in particular

6 the Prosecution. I mean, we -- we can live with a shorter time, but the

7 Prosecution needs to know in particular. All right? So it's -- it's an

8 understanding.

9 That has been dealt with, Bosanska Gradiska, Dubica, Laktasi,

10 Glamoc.

11 There are some witnesses that you referred to even in the revised

12 list as very tentative witnesses. Are you still there, or shall we leave

13 them as tentative -- very tentative witnesses?

14 MR. ACKERMAN: I thought I had moved -- removed that language.

15 That was -- that was not intended to be disclosed. But if -- if Your

16 Honour has one that says "very tentative," it's true. They are very

17 tentative.

18 JUDGE AGIUS: Okay. All right.

19 MR. ACKERMAN: I didn't mean for that to get in the disclosure,

20 because that tends to be kind of internal information.

21 JUDGE AGIUS: Can I ask of you, Mr. Ackerman, as we go along and

22 you make up your mind, to update us from time to time?

23 MR. ACKERMAN: That's -- that's what I intend to do. I'll be

24 filing -- I'm going to use that same template that Your Honours have, and

25 I'll just be filing updates to it with you. So I'll be removing witnesses

Page 20861

1 from it and I'll be adding material like birth dates to it, and things of

2 that nature. But I'd like to use that same template so you'll have a

3 running --

4 JUDGE AGIUS: I'll tell you why. Because the approach that we

5 are taking is a very -- a very simple one, actually. I mean, if we stick

6 to the time frame that you indicate, there are obviously no problems. So

7 I don't -- I don't foresee any problems. But as you rightly said, a trial

8 is a trial and anything can happen on any given day and a witness who is

9 expected to testify for half a day ends up being here for two days or

10 three days. It has happened in the past and it will definitely happen in

11 the future. So we may well end up with a situation which is different

12 from what we have now, which may require us to revisit the whole thing.

13 So I'm making this very clear. Today I am definitely not -- we've

14 discussed this -- I am not in favour of fixing a maximum number of

15 witnesses that you can bring forward, but as we go along, if I see that

16 your estimates were completely wrong and that there is no way we could

17 finish this case before a certain time limit, then we will need to talk

18 again and possibly - possibly, not necessarily - review the position.

19 That's not to be excluded that I will fix -- that we will fix a number of

20 days or time limit within which you need to -- to finish, just as we did

21 with the -- with the Prosecution.

22 We are at the moment happy with your anticipation that you can

23 finish this by the end of January. So we are not going to -- to take any

24 radical decisions. We don't think we need to at this point in time. But

25 if things -- the situation changes, obviously we need to think twice about

Page 20862

1 this. And remembering what we had talked about months ago when we were

2 arguing on how and when the case of -- of the Prosecution was to finish.

3 So --

4 MS. KORNER: Well, can I just ask: The estimate that Mr.

5 Ackerman has given to Your Honours, is that to include cross-examination?

6 JUDGE AGIUS: Yeah. Yeah. Yeah. This is it. But I think he's

7 venturing into -- I mean, I don't want to comment myself, but -- because I

8 don't know these witnesses and I don't know what you know about these

9 witnesses, and I can't even imagine how much time you will require to

10 cross-examine these witnesses properly.

11 MS. KORNER: Well, Your Honour will have seen that one of the

12 witnesses, who's number 2 on the list, I think he is --

13 JUDGE AGIUS: Some of them -- yeah, I know.

14 MS. KORNER: Your Honour -- Your Honour will imagine that from

15 what everything Your Honour has heard in this case he is likely to be

16 there for some time.

17 JUDGE AGIUS: Yes. But you also realise that here, for example,

18 you have two days. Already in the summary that you were given --

19 MS. KORNER: It's two to three, yes.

20 JUDGE AGIUS: -- it's already gone up to three. I wouldn't be

21 surprised if this person stays here with us the entire week. I wouldn't

22 be surprised in the least. But then one thing compensates for -- for the

23 other. If you have a number of witnesses reduced -- I think we have to

24 play it by the ear as we go along and then decide accordingly. But I am

25 leaving all options open; in other words, when you say 60 witnesses, 58,

Page 20863

1 64, I am not contesting that for the time being. Certainly not. I am not

2 establishing a maximum number of witnesses. I am not establishing a

3 deadline for the termination of your Defence, since you indicate the end

4 of January. I'm not even -- I'm not even threatening that if I anticipate

5 that we are going further by one week, that's going to be -- or two weeks,

6 that's going to cause major problems. But we reserve our position as we

7 -- as we go -- as we go along.

8 The idea is, for the time being, that more or less you anticipate

9 that give and take you should be able to finish your case by around the --

10 the end of -- the end of January?

11 MR. ACKERMAN: That's certainly the plan, Your Honour. My

12 greatest fear regarding witnesses is that I will bring too few at a time

13 rather than too many, and wind up with days that we can't do anything

14 because we have no witnesses. And that's a very difficult call to make,

15 and I certainly hate to -- to put the Tribunal to the expense of having

16 people sit around here for days and days waiting.

17 JUDGE AGIUS: It's the same problem -- that's the same problem

18 that the Prosecution had.

19 MR. ACKERMAN: The Prosecution had the same problem. I think

20 they handled it admirably, by the way. I don't know if I'll be able to do

21 as well as they did. They seemed always to have someone available without

22 too much inconvenience - there was some - but let's hope that we can do as

23 well as they did in that regard. We will try.

24 JUDGE AGIUS: Yes. Mr. Ackerman, I notice going through your

25 list, your revised list, that there are a number of witnesses for whom you

Page 20864

1 will be seeking protective measures?

2 MR. ACKERMAN: Yes, Your Honour.

3 JUDGE AGIUS: Yeah. The Trial Chamber will deal with those as

4 they appear.

5 MR. ACKERMAN: I'll be filing -- I'll be filing something, you

6 know, as soon as I can with regard to them. I think there will be

7 probably less than -- than is shown there. I -- I strongly -- I very

8 strongly encourage people to testify in -- in open session. You know --

9 you know my proclivities about that. And so I resist pretty strongly

10 people --

11 JUDGE AGIUS: It may not always be possible. You may find

12 yourself in a situation where you yourself will be asking for closed

13 sessions. But anyway.

14 The same applies for safe conducts, in case these are required.

15 But I don't think I need to say anything myself on that.

16 And the very last note that I had put here precisely reflects

17 what Ms. Korner had stated earlier, that I would like you -- the Trial

18 Chamber - when say I, it's the Trial Chamber, Judge Janu and Judge Taya

19 with me - to provide the order of witnesses that you intend to bring

20 forward, to give it some -- some order so that the Prosecution may -- may

21 be able to cope. And also, we tried to adopt the system that we adopted

22 during the case of the Prosecution, so that you provide the list, then, of

23 the witnesses for the following week or in time during the previous week.

24 And I would -- I think we were having Thursday as the deadline for the --

25 MR. ACKERMAN: It was Thursday, Your Honour.

Page 20865

1 JUDGE AGIUS: Yeah.

2 MR. ACKERMAN: But I think we can do a great deal better than

3 that because we -- we don't have any motive to -- to withhold information.

4 Our motive is to supply information.

5 JUDGE AGIUS: But I am not -- we are not placing any order. We

6 are just basing -- relying on your cooperation on this. And if there are

7 problems later on, then we will -- it's taken that you will start with

8 your first witness on the 20th of October, and we come to the last point,

9 which also has been mentioned by Ms. Korner, and that is will your client

10 be testifying. And if so, a question of at which point he offers his

11 testimony becomes important in the light of the case law of this Tribunal

12 and also the case law of several jurisdictions, including the

13 jurisdictions from where you come, Mr. Ackerman. My jurisdiction, for

14 example: We insist that if the accused is going to give evidence, to

15 offer his evidence, he will be the first witness obviously in his own

16 defence. That's -- yeah, there is no way he can then offer his testimony

17 at the end of -- of -- after that -- his other witnesses have given

18 evidence.

19 The same system applies or obtains in many countries. Over here

20 it has been recognised that the option of the accused testifying at the

21 end, after all the other witnesses have testified, cannot be ruled out.

22 But there may be consequences. I am sure that you will be discussing this

23 with your client. I am not insisting to have a reply today, obviously,

24 because I don't quite know whether your client has been prepared for this

25 and I don't quite know whether you were prepared to face this question,

Page 20866

1 but it is one question that we will face you with again very soon. But I

2 want to make sure that your client is made aware that -- first that he has

3 a right not -- not to offer his testimony. That's number one; he has a

4 right. No one can force him to give evidence.

5 Secondly, if he arrives at the decision to give evidence, then he

6 has these two options, the first of which is the safest or safer of the

7 two. So that's the position. And perhaps when we meet again, you should

8 be in a position to give us a feedback on this. All right?

9 Yes, Ms. Korner.

10 MS. KORNER: Your Honour, obviously if the defendant is going to

11 testify, as opposed to --

12 JUDGE AGIUS: Yeah.

13 MS. KORNER: -- to make a statement, we had a lengthy and

14 occasionally heated discussion in the course of the Stakic case about

15 this. But I understand what Judge Schomburg was referring to by a

16 statement of the accused is not testifying and doesn't carry that weight.

17 But Your Honours' original ruling was he should, if he's going to

18 testify, testify first. But it is absolutely clear to me and to Your

19 Honour that the -- this is perhaps not as clear-cut in this Tribunal as in

20 our own jurisdictions.

21 However, all I'm asking is -- Mr. Ackerman, of course, has the

22 right to make an opening statement.

23 JUDGE AGIUS: Yes.

24 MS. KORNER: And I was just wondering as a matter of

25 administration whether he was going to do that.

Page 20867

1 JUDGE AGIUS: Yeah. I'm coming to that. Because -- this is the

2 last one. Because we all agree that we are starting on the 20th with his

3 first witness. But if -- is he going to make an opening statement and

4 when?

5 MR. ACKERMAN: Your Honour, I -- I toiled with that quite a bit

6 over the last several weeks and concluded that I have fairly effectively

7 done that already by the way I've cross-examined witnesses and the

8 suggestions I've made in the process of cross-examining witnesses. So I

9 think I'll decline to make an opening statement and just start with

10 witnesses.

11 JUDGE AGIUS: Okay. But it's good to know I mean because reading

12 between the lines, that's what I thought the position would be. But I've

13 been reminded that this is always a possibility and I need to put the

14 question. So if you change your mind, Mr. Ackerman, you are to advise

15 the -- inform the Prosecution and us, of course, but the Prosecution first

16 and foremost.

17 Any other matter you would like to raise, Mr. Ackerman?

18 MR. ACKERMAN: I don't think so, Your Honour. I -- I would just

19 like to kind of as a -- as a closing remark say that -- that I really

20 appreciate the Chamber's understanding of the difficulties under which

21 we're operating and -- and I want to assure you that in return we will

22 just do everything we can to -- to make this matter run as smoothly as

23 possible and as -- with as little difficulty as possible. And our motive

24 is the same as yours, and that is to conclude this case in a just and

25 honourable way as quickly as we can.

Page 20868

1 JUDGE AGIUS: Yeah. The Chamber, Mr. Ackerman, is always full of

2 understanding and always tries to cooperate. The only problem that there

3 is - and I need to make this clear to both of you, actually - is that we

4 have the Rules. We are not the only Chamber here functioning. And this

5 is not the only trial functioning. And I -- I cannot face the rest of the

6 other Judges and the Tribunal if I fail to apply the Rules. And the Rules

7 are, as you are all aware, the Rules are changed from time to time.

8 Practically now there is an obsession of trying to find an extra way, an

9 additional way in which we can reduce the length of the proceedings,

10 reduce the length of the trial without endangering the rights of -- of the

11 defendant, which is indeed something that we are all keen upon. But we

12 will only react if we are put in the position where we are exposed to

13 criticism of not applying the Rules or being too open-handed and too a

14 largesse which is not conducive to a speedy conclusion of this trial. So

15 you cooperate in this and you will find us very cooperative in the rest.

16 Okay?

17 I thank you. We will meet again, please God, on Monday. I think

18 we are sitting in the morning, Chuqing, or in the afternoon?

19 MS. KORNER: Your Honour, I think we're sitting all mornings next

20 week.

21 JUDGE AGIUS: Yeah, morning.

22 MS. KORNER: Just on the timing again, Your Honour. We're not

23 objecting to Mr. Ackerman's request for a week. Can we take it that if

24 Mr. Ackerman puts the request in for this week, being the 16th or whatever

25 it is --

Page 20869

1 JUDGE AGIUS: 16th to 25th, he says.

2 MS. KORNER: That Your Honours will be granting that request?

3 JUDGE AGIUS: I will be waiting to hear from you first, because

4 maybe that week is not very acceptable to you or maybe you want -- you

5 event want to object to --

6 MS. KORNER: No, I'm not going to object to it, to the time that

7 Mr. Ackerman wants.

8 If it were left to us, it would be more suitable for various

9 operational reasons if Mr. Ackerman could make it the week of the -- the

10 following week as opposed to the week he's picked. But if Mr. Ackerman

11 has already made his arrangements, then it doesn't matter.

12 JUDGE AGIUS: I wouldn't know the dates.

13 MS. KORNER: No.

14 MR. ACKERMAN: I've not already made the arrangements, Your

15 Honour, and I may very well accede to that request.

16 JUDGE AGIUS: The important thing is that you let us know.

17 MR. ACKERMAN: I will.

18 JUDGE AGIUS: Because we will fit in other -- other work that we

19 have pending, both of us, the three of us, actually. So if we know well

20 in advance, that would be extremely helpful. All right?

21 I thank you. Have a nice evening, a nice weekend. And we will

22 meet on Monday morning. Thank you.

23 --- Whereupon the Pre-Defence Conference

24 adjourned at 6.05 p.m. The hearing will

25 reconvene on Monday, the 13th day of October,

Page 20870

1 2003, at 9.00 a.m.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25