Tribunal Criminal Tribunal for the Former Yugoslavia

Page 24223

1 Wednesday, 28 January 2004

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 9.03 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,

7 please.

8 THE REGISTRAR: Good morning, Your Honours. Case Number

9 IT-99-36-T, The Prosecutor versus Radoslav Brdjanin.

10 JUDGE AGIUS: Mr. Brdjanin, good morning to you. Can you follow

11 the proceedings in a language that you can understand?

12 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I

13 can hear you in a language that I can understand.

14 JUDGE AGIUS: Thank you.

15 Yes, appearances, Prosecution.

16 MS. KORNER: Good morning, Your Honours. It's Joanna Korner,

17 Julian Nicholls, assisted by Denise Gustin, case manager.

18 JUDGE AGIUS: And I thank you, and good morning to you all.

19 Appearances for Radoslav Brdjanin.

20 Mr. Vujic: Good morning, Your Honours. My name is

21 Aleksandar Vujic, and I am here together with David Cunningham and John

22 Ackerman.

23 JUDGE AGIUS: I thank you, and good morning to you all.

24 So what are these two CDs here?

25 MR. ACKERMAN: Your Honour, these are videos, a couple of the

Page 24224

1 exhibits that I intend to use during the questioning of the expert witness

2 in the case.

3 JUDGE AGIUS: Oh, I see. I see.

4 MR. ACKERMAN: And I was just able to get them digitised a couple

5 of days ago, and copied and given out to everybody.

6 JUDGE AGIUS: All right. With regard to that report, we've read

7 it, all of us already. We've read the report of your expert.

8 MR. ACKERMAN: Your Honour, do I want to say with regard to those

9 videos that I want to express my gratitude to the Office of the

10 Prosecutor, and especially David Akerson for assisting in getting those on

11 to CD-ROMs for me. I just want to make that a matter of the record. It

12 was very kind of David to help me with that.

13 JUDGE AGIUS: Yes, Ms. Korner.

14 MS. KORNER: Your Honour, can I just deal first with the question

15 that's just come up from Your Honour's query about these CDs. First,

16 Your Honour, Mr. Ackerman said the Prosecution needed to file a motion as

17 to whether they need to cross-examine Mr. Shoup. I see not the slightest

18 need to clutter the Registry with more paper. I think it's already been

19 made clear that we do wish to cross-examine Mr. Shoup.

20 The second thing is this, I raised with Mr. Ackerman,

21 Your Honours would have seen there's not a single document referred to in

22 Mr. Shoup's report, actual exhibit in the case or any other document. He

23 refers in the main to his own book. I raised with Mr. Ackerman, I think,

24 after Court when we sat last week that I would like to have by Wednesday a

25 list of the documents that Mr. Ackerman intended, if at all - he may not

Page 24225

1 be intending to use any documents - that he was going to use with

2 Mr. Shoup. I've spoken to Mr. Ackerman about this, and I'm now told I may

3 be lucky if it's Monday.

4 Your Honour, that, in my submission, will not do. As it is, we

5 waived, and we are prepared to waive our right for a proper disclosure of

6 the report in time to prepare. Even if Mr. Shoup is not here and

7 Mr. Ackerman is not sure entirely which exhibits he will be using,

8 nonetheless he must have a list of exhibits he intends to show Mr. Shoup,

9 and I would ask that that be given to me today. I understand the witness

10 will be arriving tomorrow. And at the very latest, Your Honour, if

11 Mr. Ackerman declines to give us a list of documents he's going to show

12 Mr. Shoup, then if on Friday I would like, before the holiday, a complete

13 list of exhibits which are intended to be used with this witness, as I

14 say, if any.

15 JUDGE AGIUS: Expert is arriving tomorrow, you said?

16 MS. KORNER: So Mr. Ackerman tells me.

17 MR. ACKERMAN: Your Honour, I had a bit of a dispute with the

18 powers that be at the Tribunal. I wanted him here earlier, and they

19 refused to bring him earlier. So this is the best I can do. And that

20 took quite a lot of persuasive talk. But I finally managed to get him

21 here. Probably not quite enough time to spend as much time with him as I

22 wanted to. I didn't make any trips to the United States and sit with him.

23 I probably in retrospect maybe should have done that. I thought it would

24 be a waste of money in some ways because I thought I could bring him here

25 earlier, but I wasn't able to. I am not going to give the Prosecutor a

Page 24226

1 list of documents that I'm going to show him because that would be a

2 violation of the work product exception, I'm quite certain. I will

3 immediately, as soon as I know, notify the Prosecutor of any documents

4 that I'm going to use during his examination. Your Honour will

5 remember --

6 JUDGE AGIUS: I think that's what she meant. No?

7 MS. KORNER: No, it's not, Your Honour. The witness is going to

8 start testifying on Tuesday. Monday is a holiday. I'll be here, but

9 nonetheless I'd like the documents by -- the list by close of

10 business -- in fact, before close of business on Friday so that we

11 ourselves can assemble the documents, rather than coming to Court with I

12 don't know how many volumes we've reached so far. Your Honour, in my

13 submission, if we don't get it, it will lead to a delay because we will

14 object to the witness starting --

15 JUDGE AGIUS: You mean the documents that Mr. Ackerman will be

16 using if he will be using them in the course of his examination.

17 MS. KORNER: His examination-in-chief. Absolutely, yes.

18 JUDGE AGIUS: From what I heard said, a violation of -- "I'm not

19 going to give the Prosecutor a list of the documents that I'm going to

20 show him because that would be a violation of the work product exception."

21 MS. KORNER: That's --

22 JUDGE AGIUS: Exactly.

23 MS. KORNER: I've never heard anything so odd in all my life.

24 JUDGE AGIUS: All right. Okay. I just wanted to make it clear to

25 myself whether I was understanding well or --

Page 24227

1 MS. KORNER: That's what he's trying to say. In my submission

2 that doesn't even begin to have merit as an objection.

3 JUDGE AGIUS: All right. Okay.

4 MS. KORNER: But Your Honour, I'm saying simply this: We have

5 been understanding about proper summaries of witnesses being delivered to

6 us the night before the witness testifies, the list of documents the same.

7 But for an expert witness, Your Honour, for whom we have been given a

8 weeks' notice before he's being called of what he's going to say, it is

9 not in our submission in any way unfair or a breach of any sort of

10 confidentiality -- there is no confidentiality between counsel and an

11 expert to that extent. It's not like a client's instructions. But we are

12 saying, Your Honour, that it would be right and proper for Your Honour to

13 make an order that the proposed documents to be used with - even if not

14 all of them to be used - proposed documents to be used with the expert are

15 given to us by Friday at 1.00.

16 JUDGE AGIUS: Yes, Mr. Ackerman.

17 MR. ACKERMAN: Your Honour, the gentleman that's coming to testify

18 was born ten years before I was. And I think it's very unlikely that on

19 the day he arrives that it will be a very productive day because of the

20 jet lag and so forth. He's 74 years old. The first, I think, real

21 opportunity to start going through documents with him in the proofing

22 process would be on Friday. I am not going to, unless I'm absolutely

23 ordered to do that, provide Ms. Korner with a list of documents that I

24 intend to show him during the proofing process. I would love to have

25 gotten that --

Page 24228

1 JUDGE AGIUS: I don't think that's what you were referring to,

2 and --

3 MR. ACKERMAN: It is. It's exactly what she is referring to.

4 That's what she wants.

5 MS. KORNER: Your Honour, I'm trying to get some idea of the

6 documents he will be using here. Clearly the documents that he's going to

7 show the expert are the ones that he intends to use. He may in the end

8 discard them. There may be a list given to us which contains more

9 documents that are actually used. Quite often we have done the same,

10 particularly for cross. But nonetheless I am asking for an indication

11 from our point of view so we can know what areas because it's very unclear

12 at the moment what this report I may say is designed for. Dr. Donia gets

13 but one mention in the course of the whole report.

14 JUDGE AGIUS: In fact, that leads me again because I would have

15 imagined something different.

16 MS. KORNER: Your Honour, that's why we're trying to establish,

17 which I say is very unclear from the report, to what areas this expert

18 evidence is being called, and the documents that are going to be used may

19 give us a clearer indication. An expert -- we're not supposed to stagger

20 into Court totally unsure of where this is going, what this is about. So,

21 Your Honour, that's what I'm asking for, and I'm asking Your Honour to

22 make an order.

23 [Trial Chamber confers]

24 MR. ACKERMAN: Your Honour, while your discussing it, if you

25 look -- if you check the record, you'll see numerous instances where

Page 24229

1 Ms. Korner said I can't supply a list of documents because I haven't yet

2 proofed the witness, and I said I agree, Your Honour, until she proofs the

3 witness she can't supply the list. That's the same position I'm in.

4 What's good for the goose is good for the gander.

5 [Trial Chamber confers]

6 JUDGE AGIUS: Anyway, we'll discuss it later and we'll let you

7 know. Either through formal order or through the registry. Final

8 solution would be that -- is it possible for you to be in contact on a

9 Saturday, for example? Is it usual, or would it be...

10 MS. KORNER: Your Honour, it's perfectly possible save for this --

11 JUDGE AGIUS: Because then we can start on Wednesday, which will

12 give you -- Monday is a holiday here.

13 MS. KORNER: Your Honour, the only thing I say about this weekend

14 is there is an advocacy training course being run over the weekend which

15 I'm involved, which is why I said I will be at work on Monday. But over

16 Saturday and Sunday, it's going to be a bit difficult.

17 JUDGE AGIUS: I think the best solution would be we start

18 on -- because I can quite understand if the gentleman who is coming over

19 is in his 70s, I would -- in his 70s, 72, 73, something like that -- 74.

20 I mean, I can't expect Mr. Ackerman, feeling ten years younger, to be able

21 to run him over and come back on Friday with -- so I would rather say we

22 start on Wednesday than Tuesday.

23 MS. KORNER: Your Honour, I'm not -- at the moment, I'm not asking

24 for that. I'm with Your Honours on this at the moment, that we should

25 keep the momentum going on this case.

Page 24230

1 JUDGE AGIUS: Yes, yes, yes. I agree, Ms. Korner.

2 MS. KORNER: I'm merely pointing out that if I only get the list

3 of documents on Monday and it is an extensive list, then it may well that

4 be I'll have to ask Your Honours for a delay while we sort out what this

5 is all about, or alternatively ask for a delay between -- at the end of

6 examination-in-chief and cross-examination, which is probably more

7 sensible.

8 Your Honour, but I do say this, it's not the same as a witness as

9 to fact who has made a statement sometime ago. Mr. Ackerman has employed,

10 as I understand, Mr. Shoup to do this report for a considerable period of

11 time before today. And therefore, must have an idea of what it is that he

12 wants the expert to deal with. But if Your Honours won't make that order,

13 well, then, Your Honours, all I can say is that we may, as I say, be

14 asking for a break between chief and cross.

15 JUDGE AGIUS: Okay. Yes, Mr. Ackerman.

16 MR. ACKERMAN: Your Honour, I'm quite certain that by Friday

17 afternoon, 3.30, 4.00, that I will have a list of documents. It won't be

18 a complete list, but there will be a list. It could very well be a

19 complete list by then, I don't know. I will give whatever I have to

20 Ms. Korner on Friday. I'm not going to sit there until Monday and wait to

21 give it to her. But what I'm saying I may not have everything by Friday.

22 I just may not have time to do that by Friday. There may be a supplement

23 that I would give her on Monday. But I think -- I don't know, but I would

24 think 70, 80 per cent of what I'm going to use probably will be known by

25 Friday afternoon. That's my guess, and that's what I will undertake to

Page 24231

1 do. I have no interest whatsoever in not telling Ms. Korner the documents

2 that I'm going to use just as some kind of a trick or something. When I

3 know what they are, she'll know what they are. But until then, I can't --

4 you can enter all the orders you want, I can't give her anything I don't

5 know.

6 JUDGE AGIUS: No one suggested that, Mr. Ackerman. All right. So

7 shall we take it that there is an undertaking on your part that you'll do

8 your utmost so that you hand to Ms. Korner as complete a list as possible

9 on Friday. And if that is not possible, you then continue either Saturday

10 or Sunday or Monday, I don't know.

11 MR. ACKERMAN: That's right, Your Honour. And actually, the

12 Netherlands Institute for War Documentation was cited extensively

13 throughout his report, and Ms. Korner should assume that we're going to

14 several parts of that report from that institute.

15 MS. KORNER: Then I'd like copies, please.

16 JUDGE AGIUS: What about the CIA?

17 MS. KORNER: Dr. Shoup says that it's not available.

18 JUDGE AGIUS: Again, there's volume 1, volume 2, and he alleges

19 that volume 2 contradicts what is contained in volume 1, and we've only

20 got bits and pieces of it. I am not in a position to know because I

21 didn't want to ask before --

22 MS. KORNER: Your Honour, I was going to wait and see with

23 interest whether we were going to be given the unpublished manuscript by

24 Mr. Hayden. But Your Honour, I think anything the Defence propose to use

25 which is not in the public domain, such as Mr. Shoup's book, which we do

Page 24232

1 have a copy of, we would like to be provided with copies with, and that,

2 please, certainly by Friday.

3 MR. ACKERMAN: Your Honour, the Netherlands Institute for War

4 Documentation has a website in the footnotes to the report. That's where

5 I've gotten it. You can get it from the same place. All you have to do

6 is go to that website and you can print it out until you turn blue.

7 MS. KORNER: That's very nice. But actually, rather than have one

8 of our staff print it out, we'd like a copy, please.

9 MR. ACKERMAN: No. It's publicly available. I'm not going to

10 spend my money to copy it and print it for you. It's publicly available;

11 it's on the World Wide Web. Go get it.

12 MS. KORNER: I take some slight umbrage at the tone in which that

13 is said. Your Honour, it is the duty of the Defence as we did -- we've

14 supplied, when we were using copies of Glas, we supplied them -- to supply

15 us, please, with the documents which are not part of the exhibits in this

16 case on which the expert intends to rely.

17 JUDGE AGIUS: And we need to see them as well, because again I was

18 not in a position to know, and obviously, I didn't want to ask until I

19 first put the question to you which of the documents that -- main

20 documents that report refers to are available or not. And particularly, I

21 was interested in the CIA documents because if they were available to the

22 expert, I don't see why they shouldn't be available to you or to us.

23 MS. KORNER: Your Honour, I don't think he has got them. What I

24 understood, he's quoting from a New York Times article about it. I don't

25 know, but if he has got them then, of course, the Court and we should be

Page 24233

1 supplied with them. Equally, if he has sight or a copy of an

2 unpublished - he says in one of the footnotes - manuscript by Mr. Hayden

3 which we don't have, we'd like that, too. So Your Honour, I'm going to

4 say that Mr. Ackerman must supply us with those types of documents in the

5 same way as we supplied him things that were going to be used.

6 JUDGE AGIUS: Okay. What else? Mr. Donia. Mr. Donia, I had, of

7 course, told you -- I had asked you actually whether you intended to bring

8 him over, et cetera. I had not seen, obviously, Mr. Shoup's report at the

9 time, and I was put on guard eventually when -- during the last sitting by

10 Mr. Ackerman himself who said there would be very little reference, if

11 any, to Mr. Donia's report. So as far as I am concerned at least, and I

12 think my two colleagues also agree with me, I have no more feeling about

13 it whether he should be here or not, it's up to you whether you require

14 him here or not. In other words, I do not anticipate that there will be

15 any questions necessary, needed from our part to Mr. Donia at this stage

16 anyway.

17 MS. KORNER: Your Honour, like Your Honour I haven't had an

18 opportunity to read the report. I think that's evident. I think there

19 are two reference to Dr. Donia. Dr. Donia does have a number of

20 professional commitments. So in those circumstances, we don't propose to

21 bring him back here for the purposes of listening to Mr. Shoup.

22 JUDGE AGIUS: Okay.

23 MS. KORNER: Your Honour, the only other question is Your Honours

24 raised that you may wish to put more questions to --

25 JUDGE AGIUS: BT --

Page 24234

1 MS. KORNER: BT-94. Can Your Honours confirm that because we'll

2 make arrangements.

3 JUDGE AGIUS: Yes, of course.

4 MS. KORNER: I think you said you'd come back to us on that.

5 JUDGE AGIUS: Yes.

6 MS. KORNER: In that case, Your Honour, we'll make arrangements to

7 have him brought over the week after next.

8 JUDGE AGIUS: Yes, okay. Week after the next. All right.

9 MS. KORNER: Yes.

10 JUDGE AGIUS: Okay. And the other person we checked, and you are

11 right. He is a legal assistant to my surprise in one of the other cases.

12 MS. KORNER: A number of people's surprise, I think, Your Honour.

13 JUDGE AGIUS: And we do require him.

14 MS. KORNER: I think Your Honours are making arrangements through

15 the Registry.

16 JUDGE AGIUS: I don't think that actually changes anything as far

17 as -- yes.

18 [The Trial Chamber and legal officer confer]

19 JUDGE AGIUS: So that's about it.

20 MS. KORNER: Your Honour, I wonder if we could get the heating

21 turned down.

22 JUDGE AGIUS: Yes, please. I didn't say anything because I am not

23 feeling well at all. I'm running a temperature, and so I thought it's me.

24 MS. KORNER: No, no, it's very hot in here.

25 JUDGE AGIUS: Yes, usher, please.

Page 24235

1 MS. KORNER: I did ask beforehand, but obviously nobody has done

2 anything.

3 JUDGE AGIUS: Usher, you could, because it is indeed hot, but I

4 thought it was me. That's why I said I will at one moment I was going to

5 tell you if you see me fainting, please bear with me because I did faint

6 yesterday.

7 MS. KORNER: I know Your Honours had a very long afternoon

8 yesterday.

9 JUDGE AGIUS: Yes.

10 MS. KORNER: Or Your Honour did, yes.

11 JUDGE AGIUS: Also a long morning because we had an in camera

12 meeting starting at 9.30, Judge Schomburg and Judge Mumba. That's why I

13 couldn't continue a meeting with Judge Taya and Judge Janu. I had to

14 stop. Today I have a meeting in the morning, a meeting at 1.45, Rules

15 meeting, and then a sitting again in Deronjic until 7.00. The earlier I

16 go home, the better because...

17 MS. KORNER: Your Honour, I hope we won't detain Your Honour much

18 longer.

19 JUDGE AGIUS: Yes. I have seen --

20 MS. KORNER: Your Honour, can I start really with the last aspect

21 or the last person, and I think we need to go into private session,

22 please, for that.

23 JUDGE AGIUS: Yes, let's go into private session for a while,

24 please.

25 [Private session]

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3 [Open session]

4 MS. KORNER: If we would be prepared to restrict the application

5 for the rebuttal witness to just the aspect of the property that

6 Your Honours have talked about, Your Honour, no. We've considered the

7 matter, and we say it's proper rebuttal, the other part of that evidence

8 because what was led was evidence about 1993 and 1994 and Mr. Brdjanin's

9 attitude, which we hadn't led, and that witness, we anticipate, will go

10 into that period, so we had that evidence in respect of that period, but

11 not in respect of 1992, that witness. Your Honours, our application will

12 remain that we'd be able to call that witness on all aspects of her

13 statement.

14 JUDGE AGIUS: You didn't even mention this in your Prosecution

15 motion to call evidence in rebuttal with regard to this witness. You just

16 said regarding his contact and relation to the property --

17 MS. KORNER: Your Honour, I said right along that we never

18 intended to do a written motion, that we did one at speed because we were

19 asked to provide an indication that I wish to supplement --

20 JUDGE AGIUS: Yeah, all right.

21 Okay. The position then, we hoped that you would have restricted

22 this. We have discussed in camera the question with regard to the fourth

23 witness. I think the position now is that we will hand down a short

24 written decision in due course, the course of this week. It's the

25 understanding that with regard to rebuttal of the evidence regarding the

Page 24258

1 abbreviations, this is going to be supplemented by a redacted version and

2 that your request to produce the letter from Novi Grad Municipality, you

3 can make a statement. You can perhaps even -- you can even perhaps

4 declare that it is based on a letter that you have received from Novi Grad

5 Municipality --

6 MS. KORNER: Your Honour, I'm not going to pursue the matter. It

7 was there because it was a part of a number of things, but it's certainly

8 not, in my submission, worthwhile pursuing.

9 JUDGE AGIUS: We will later on hand down a decision this week.

10 Don't expect a detailed decision, it's going to be a pretty

11 straightforward decision, yes or no, obviously explaining why, but very

12 short, very concisely.

13 Regarding your -- I think we need to go into private session for a

14 moment because it may be that this was a protected witness. I don't know.

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21 [Open session]

22 THE REGISTRAR: Your Honours, we are in open session.

23 MS. KORNER: Your Honour, what I've indicated to Mr. Ackerman is

24 this report by the Netherlands Institute is enormous. I attempted -- the

25 reason I said that Mr. Ackerman must provide copies is I attempted to

Page 24262

1 print off from the Internet a very small part of that report, and it took

2 forever. Which is why I said to Mr. Ackerman he must provide the report

3 to us. In the adjournment, I've said to Mr. Ackerman, provided we are

4 given the page numbers that he intends to use and the areas generally,

5 then we'll do our own printing off the Internet for that report. Because,

6 I mean, as Mr. Ackerman knows, it's very difficult. It take a long time.

7 You have to keep going back to the next chapter. It's set out in chapters

8 and so you can't just say -- and you don't want to print out the whole

9 report because it's something like 800 pages, I think. If we're given the

10 page numbers he's going to be referring to and the general areas, then

11 we'll arrange our own printing.

12 I will, however, say that we would ask for this unpublished

13 manuscript of Mr. Hayden. There, we have no method of getting a hold of

14 it.

15 JUDGE AGIUS: This is a big problem. I personally hate to take

16 anything written for granted if it's only a part of a document or of a

17 book or et cetera without having the opportunity at least to glance

18 through and see for myself what I need to see.

19 The other problem that we have, and I am -- I have been dealing

20 with Madam Chuqing to sort it out, there seems to be only two copies of

21 the book in our library, and they are both on loan. My idea was to take

22 advantage of the fact that I am not feeling well, stay at home, and stay

23 reading. And do you have spare copies that you can lend us --

24 MR. ACKERMAN: Your Honour, you'll recall a few days ago you

25 suggested that you were going to take me up on my offer. I

Page 24263

1 have -- they're on order. There are three of them coming here by DHL.

2 They should probably arrive today. As soon as they arrive, I'll get them

3 to Reinhold or Ken or somebody.

4 JUDGE AGIUS: Okay. Because Madam Chuqing offered to photocopy

5 the books for the three of us.

6 MR. ACKERMAN: That's too much.

7 JUDGE AGIUS: It's a cumbersome job. I mean, if we can make use

8 of the book, it's --

9 MR. ACKERMAN: The only place I could get them was from the

10 publisher in the US, and I think they were sending them DHL last week. So

11 I think they will arrive today. I suggested that probably once you were

12 finished with them, they would be donated to the Tribunal library or some

13 such.

14 JUDGE AGIUS: I tell you why, Mr. Ackerman, because the report of

15 your witness starts precisely with a very straightforward declaration.

16 First of all, it refers throughout as you go along to the book. And he is

17 making his report in the plural sometimes, and then he jumps into the

18 personal, singular sometimes. And he makes a very fundamental declaration

19 in the beginning saying that he, out of the two authors, he is the one who

20 believes that the Serbs were demonised and so on and so forth. I know I

21 wouldn't like to go any further than this for the time being.

22 And then in a substantial part of his report, he tries to explain

23 why, according to him, we should agree with his approach, with his belief.

24 Now, I personally wouldn't even dream of proceeding to decide in my mind

25 on whether he is right to come to that conclusion without having had the

Page 24264

1 opportunity of reading the book, which obviously is -- covers much broader

2 area of the events and of some of the considerations. For example, there

3 is almost nothing in the report about the establishment of Republika

4 Srpska almost. It is conspicuously absent from the report. And I wish to

5 read the book in the first place.

6 [Trial Chamber confers]

7 JUDGE AGIUS: Yes, Mr. Ackerman.

8 MR. ACKERMAN: Your Honour, I've said more than once, I think,

9 that the book is part of his report.

10 JUDGE AGIUS: Yes.

11 MR. ACKERMAN: And you'll see in his report that by reference he

12 makes it part of his report. I didn't see any -- nor did he see any

13 reason to just rewrite portions of that book just to make his report

14 bigger. So you're correct, you really should have it. It's part of what

15 he's doing.

16 JUDGE AGIUS: That's the right approach. But again, he draws

17 conclusions which one presumably ought to find in the book. But the

18 reasons behind those conclusions are not contained in the report, but they

19 are contained in the book. I would assume so, you know. And the other

20 problem that I have is he bases a lot on the CIA --

21 MS. KORNER: Well, Your Honour, I happened to think that he's

22 wrong, that it hadn't been published. I'm going to make some inquiries,

23 and I think we maybe able to -- unless he's going to provide it.

24 JUDGE AGIUS: It has been published, Ms. Korner, I think from what

25 I have read in the report itself that it's definitely worth going through

Page 24265

1 reading because it's a political -- very detailed political assessment,

2 seemingly based on information on the ground. And the thing is that if it

3 was available in one way or another to the author or to the expert, and it

4 is not made available to us, it's not a question of control only; it's a

5 question of trying to understand --

6 MS. KORNER: As I understand his report, Your Honour, he's relying

7 on secondary sources there, a report in the New York Times.

8 JUDGE AGIUS: I also take it that the CIA reports --

9 MS. KORNER: I'm making inquiries at the moment, but I have reason

10 to believe it may have been published.

11 MR. ACKERMAN: I'll tell you my understanding.

12 JUDGE AGIUS: Yes, Mr. Ackerman.

13 MR. ACKERMAN: My understanding is that the first -- there are two

14 CIA reports.

15 JUDGE AGIUS: Yes.

16 MR. ACKERMAN: My understanding is that the first one is not

17 available. The second one clearly is publicly available. It costs 275

18 dollars. I've already got it on order. And it's coming DHL, and it

19 should arrive today or tomorrow. But it's huge. It's called "Balkan

20 Battlefields" or something like that. That's the name of it.

21 JUDGE AGIUS: That's what it was called. So was the first one.

22 MR. ACKERMAN: That one has been published not just by the CIA,

23 but by some person who apparently was its author on behalf of the CIA, so

24 it's privately published also. I found it on Amazon.com and was able to

25 order it.

Page 24266

1 JUDGE AGIUS: My whole point rests on two consideration: Number

2 one is that if reference is made to the reports, and they are available,

3 they should be made available. That's number one. Because there is

4 reference to these reports on several parts of your expert's report.

5 That's number one. Secondly, is that according to the expert, in certain

6 parts or with regard to certain aspects, the second report contradicts the

7 first in certain basic considerations, basic conclusions. Are you telling

8 me that the second one may be available or is available, but the first one

9 is not? That would pose a problem. Perhaps if you can reach Mr. Shoup

10 before he leaves or if he has left already, if he can bring with him

11 whatever is available from that first report, provided it can be made

12 available to us. I don't know. But it would solve some problems for us

13 because I don't fancy reading a report which makes reference to several

14 other reports, documents, et cetera, and then take everything for granted,

15 you know. It's like when I'm examining students for their Ph.D.

16 dissertation, you get references, and cross-references, fully aware that

17 probably 50 or 60 per cent of the texts and the authors they refer to in

18 their dissertation have never been consulted.

19 But anyway... I would like as much information as possible

20 because as Ms. Korner said, the report comes unaccompanied with any

21 documents. It's only references to various documents.

22 All right. Let's call it a day because I don't want to disappoint

23 Judge Orie.

24 MS. KORNER: One more thing. Can we go into private session.

25 [Private session]

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8 --- Whereupon the Status Conference adjourned

9 at 11.13 a.m.

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