Page 321
1 Wednesday, 17 June 2009
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom.
8 Madam Registrar, will you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. This is the
10 case number IT-02-54-R77.5-T in the case against Florence Hartmann.
11 JUDGE MOLOTO: Thank you so much.
12 Could we have appearances for today, starting with the
13 Prosecution, please.
14 MR. MacFARLANE: Thank you, Your Honours.
15 Bruce MacFarlane, appearing as the amicus curiae Prosecutor from
16 Canada
17 Lori Ann Wanlin, also from Canada
18 JUDGE MOLOTO: Thank you so much.
19 And from the Defence?
20 MR. KHAN: Good morning, Mr. President, Your Honours.
21 Karim Khan, Guenal Mettraux, and Arina Koligina on behalf of
22 Ms. Hartmann.
23 JUDGE MOLOTO: Thank you.
24 Before beginning with the witness, my computer is not on. Can I
25 get help?
Page 322
1 Okay. Good morning, Mr. Joinet.
2 THE WITNESS: [Interpretation] Good morning.
3 JUDGE MOLOTO: Thank you so much.
4 Just to remind you that you're still bound by the declaration you
5 made at the beginning of your testimony to tell the truth, the whole
6 truth, and nothing else but the truth. Thank you so much.
7 WITNESS: LOUIS JOINET [Resumed]
8 [The witness answered through interpreter]
9 JUDGE MOLOTO: Mr. MacFarlane.
10 MR. MacFARLANE: Thank you, Your Honours.
11 Cross-examination by Mr. MacFarlane: [Continued]
12 Q. And I extend a good morning to you, Mr. Joinet.
13 Yesterday, you outlined your experience in the preparation of and
14 participation in various reports, and it's obvious that you have played
15 an important role in the development of some thinking on a number of
16 different issues in relation to those reports, some of which were with --
17 many of which were with the United Nations. My understanding is that,
18 and I'd like to get your observation on this, that many of those reports
19 lead to a concrete result, either in whole or in part. They certainly
20 contribute to the thinking in the area. But is it safe to say that those
21 types of reports generally are sometimes adopted, sometimes not adopted?
22 A. As far as my own reports are concerned, they have always been
23 adopted. As I mentioned yesterday, the decision-making process is the
24 following: You have recommendations. Either they are rejected or they
25 are adopted. So you recommend to take such and such initiative to
Page 323
1 appoint -- a body or a tribunal, or to appoint a special rapporteur, and if
2 this recommendation is adopted, given that the recommendation and the
3 consequence of the report are together, the report is tacitly or
4 implicitly adopted, but there is always a decision-making process to
5 decide whether recommendations are adopted or not, and all this is
6
7 Q. Thank you. Some of your reports, including perhaps the precursor
8 to this Tribunal, were prepared during the 1990s, and I'm just wondering
9 if you're familiar with some of the developments in this Tribunal since
10 then, since its creation in the early 1990s.
11 For instance, are you familiar with Rule 77 concerning contempt
12 of the Tribunal and its provisions?
13 A. I did not know of this Rule, but I looked at it the last time
14 that I came here to testify, but because of the court schedule, I could
15 not testify, and the Witness Unit gave me a copy of the Rules of
16 Procedure, and I remember this Rule that talks about contempt of court.
17 So the answer to your question is yes, but I should like to add that as
18 far as contempt of court is concerned and the process of it, I'm not
19 fully aware of it, given that I have no common-law training; and,
20 therefore, I do not know of the way it's dealt with in common law,
21 because we have another concept in France which is "outrage a magistrat."
22 Q. Thank you. Subsequent to the development of the Rule, Rule 77,
23 there was established a practice direction on contempt, and I --
24 MR. METTRAUX: Your Honour.
25 JUDGE MOLOTO: Yes.
Page 324
1 MR. METTRAUX: Thank you, Your Honour.
2 I object to this line of questioning. If Mr. MacFarlane could
3 explain how it arises out of examination-in-chief. There was no
4 questions asked whatsoever on Rule 77, in our submission.
5 JUDGE MOLOTO: Objection is overruled. You asked the witness
6 about various laws that govern this area, and Mr. MacFarlane is doing the
7 same.
8 MR. MacFARLANE:
9 Q. Mr. Joinet, there was, established by the Tribunal, a practice
10 direction on contempt. Are you familiar with that document? Have you
11 seen it before?
12 A. I do not have this document with me. If I recollect correctly, I
13 have read parts of this document which looks at the various
14 qualifications that were retained in order to characterize some fact as a
15 contempt of court, but I do not have the document with me here.
16 Q. Thank you. There have been --
17 A. And I do not remember seeing it in the various binders.
18 Q. There have been a number of decisions of Chambers, both the
19 Trial Chamber and Appeals Chamber, with respect to contempt, and its
20 elements, and it's shape and its contours, and what needs to be
21 established, and so on. Have you seen any of those decisions? And
22 perhaps I could just mention a few, just to see if that might assist you.
23 A decision called Tadic, T-a-d-i-c; Aleksovski, Brdjanin,
24 B-r-d-j-a-n-i-n; Marijacic; Jovic; Haxhiu? Have you read any of those
25 decisions and looked at the Chamber's comments with respect to the nature
Page 325
1 of the offence of contempt in this Tribunal?
2 A. You know, I'm 75 years of age, so I don't have the same memory as
3 you, but I will try to remember.
4 I believe that I read a decision regarding the Tadic case,
5 because when I was chairing the Commission on Administrative Detention,
6 General Tadic referred the case to us, claiming that this Court, and it
7 was the Rules of Procedures that were challenged, led to his detention
8 that was of an arbitrary nature; and we had to work for that six months,
9 because the group is made of five people, it's like a trial chamber,
10 there are some deliberations; so I looked into this case, and this is
11 when I started to look at the way your Tribunal operates. But the case
12 of contempt of court post-dates this other case, but I carried on looking
13 into this case, and this is why I looked into the contempt of court case.
14 But I do not have all the details about the contempt of court case
15 regarding the Tadic case.
16 JUDGE MOLOTO: When you say "General Tadic referred the case to
17 us," who are the "us"?
18 THE WITNESS: [Interpretation] This was the group that was set up
19 by the Human Rights Commission. It was a working group on arbitrary
20 detention that I was chairing. There was a Mr. Laytikama [phoen] as
21 well, who then went to the ICTR, and there were five members that had
22 been elected by the Human Rights Commission, and we had been seized,
23 but we rejected the case actually, after careful study. But it might have
24 been some delaying tactics from the interested party.
25 MR. MacFARLANE:
Page 326
1 Q. Mr. Joinet, one of the leading decisions in the area is a case
2 called Jovic, J-o-v-i-c, a decision of the Appeals Chamber in 2007. Do
3 you recall if you had a chance to read that decision?
4 A. Yes, but I don't really remember the ins and outs of it. The
5 name rings a bell. I think I got to know this name when I was working on
6 the ground.
7 Q. Thank you. In terms of development since the 1990s, and that's
8 really what I'm focusing on at the moment, I'm wondering if a decision of
9 the Supreme Court of Canada has come to your attention which commented on
10 the authority and the importance of this Tribunal on an international
11 level. And let me read an excerpt from this decision from the Supreme
12 Court of Canada in 2005 to see if you have -- if you're aware of it, if
13 you have any comments in relation to it.
14 The Supreme Court said this in an 8:0 unanimous decision:
15 "Since 1994, a vast body of international jurisprudence has
16 emerged from the International Criminal Tribunal for the former
17 Yugoslavia
18 authority which cogently reviews the sources, evolution, and application
19 of customary international law. Though the decisions of the ICTY and the
20 ICTR are not binding upon this Court, the expertise of these Tribunals
21 and the authority in respect of customary international law with which
22 they are vested suggest that their findings should not be disregarded
23 lightly by Canadian courts applying domestic legislative provisions."
24 Has that --
25 MR. METTRAUX: Your Honour.
Page 327
1 JUDGE MOLOTO: Yes.
2 MR. METTRAUX: Perhaps before the question is answered, and with
3 a view to assist counsel on the other side, would Mr. MacFarlane be
4 capable of giving us the reference to the case and the issue to which
5 this statement pertains, in particular whether it relates to the
6 definitions of the crimes, which are the main jurisdiction of this
7 Tribunal, or to any other issue. We'd be very grateful.
8 JUDGE MOLOTO: Are you able to give the citations? I don't
9 think --
10 MR. MacFARLANE: I'm happy to do that, Your Honours. The
11 citation for the case is Mugesera, M-u-g-e-s-e-r-a versus Canada
12 Mugesera versus Canada
13 world is the neutral citation is 2005 SCC 40. It's a lengthy decision,
14 but what I've just read is from paragraph 126. The hard copy reference
15 is 2005 2 Supreme Court Reports, page 100.
16 JUDGE MOLOTO: And what were the issues?
17 MR. MacFARLANE: The issue was -- it was a war crimes case. The
18 issue was the elements of the offence that needed to be established under
19 domestic legislation. The leading case was a case called Finta,
20 F-i-n-t-a, and the Court was asked to reconsider the Finta decision. The
21 Court looked to the decisions of this Tribunal, concluded, in essence,
22 that their own previous decision was wrong, in light of the decisions and
23 the guidance from this Tribunal and the ICTR, and it overruled itself on
24 the issue. The case is available on the internet through the -- it
25 appears that we may be able to e-mail it to counsel very shortly, but
Page 328
1 it's available on that worldwide linkage of court decisions that spans
2 just about all countries.
3 JUDGE MOLOTO: Thank you.
4 MR. METTRAUX: Well, Your Honour, in that case, I would object on
5 the issue of relevance. I happen to be familiar with this particular
6 case, Your Honour, and I'm talking off the top of my head, since we
7 haven't received a copy of that document; but I understand that the
8 passage in question, Your Honour, and the reference that was being made
9 by Mr. MacFarlane pertains to the definition of crime against humanity as
10 given by this Tribunal. And I understand that in that context, the
11 Supreme Court of Canada
12 the evolutions that have occurred in this case. I believe, and I will be
13 corrected by my colleague, that there is no reference whatsoever to any
14 issue of contempt in this context.
15 MR. MacFARLANE: Perhaps I could outline the basis upon which I'm
16 posing the question. It's not -- I agree it is not a contempt case. I'm
17 putting it forward on the basis that there have been a number of
18 important developments since the early 1990s which are important to
19 understand post many of the reports that have been referred to yesterday,
20 so I'm advancing the thesis that a lot has happened since the early 1990s
21 that has to be taken into account.
22 JUDGE MOLOTO: Thank you. Objection overruled.
23 MR. MacFARLANE:
24 Q. Mr. Joinet, are you familiar with that decision and that line of
25 thinking from the Supreme Court of Canada and, in essence, the
Page 329
1 endorsement that that high court gave to the work of this Tribunal?
2 A. No, I'm not familiar with it, or at least as long as I don't have
3 the possibility to look at it.
4 Q. Mr. Joinet, again in terms of developments in areas --
5 [Prosecution counsel confer]
6 MR. MacFARLANE:
7 Q. In terms of developments, I'm going to draw to your attention a
8 practice direction issued by this Tribunal on the 4th of February, 2008
9 and copies are now being distributed to Chamber and counsel. I expect
10 that it's well known and well understood by those in the Chamber at the
11 moment, and a version in French is being provided to the witness. This
12 is a practice direction on procedure for the variation of protective
13 measures, pursuant to Rule 75(H) of the Rules of Procedure and Evidence
14 of the International Tribunal for access to confidential Tribunal
15 material.
16 And, Mr. Joinet, I'd like you to take a few minutes to read
17 through the document, and I have some general questions. I'm not going
18 to ask specific questions about specific parts, but I have a few general
19 questions of you concerning the document.
20 THE INTERPRETER: Could the interpreter also get a copy of this
21 document. Thank you.
22 THE WITNESS: [Interpretation] Could you please let me know which
23 part of the document I should read, or should I read the entirety of this
24 document?
25 JUDGE MOLOTO: Mr. MacFarlane, do you have a copy for the
Page 330
1 interpreter? He's asking for one.
2 MR. MacFARLANE: Yes. We can --
3 JUDGE MOLOTO: You can give him mine. I'll share.
4 MR. MacFARLANE:
5 Q. Mr. Joinet, in response to your question, feel free to read the
6 document as a whole. It's one and a half pages. But probably the most
7 important provision is the first one under the heading "Submission of
8 Applications." But feel free to read the entire document. My questions
9 won't relate to a specific provision but, rather, will be more general.
10 A. I do not see any heading called "Submission of Applications," or
11 "Presentation de la Requete" in French.
12 Q. It's at the top of page 3 on the English version that I have.
13 A. Okay. "Submission of Applications," so "forme de la demande,"
14 says the entirety of the paragraph. I ask for your patience, because I
15 will have to read this.
16 I believe it's the last paragraph that is of importance, isn't
17 it, as far as you are concerned?
18 Q. Well, let's take it one step at a time. The first paragraph with
19 the number 1 in English reads:
20 "An application submitted pursuant to Rule 75(H) of the Rules by
21 a Judge or Bench in another jurisdiction or parties in another
22 jurisdiction authorised by an appropriate judicial authority to rescind,
23 vary or augment protective measures ordered in proceedings before the
24 Tribunal shall be addressed to the President of the Tribunal ...," and so
25 on.
Page 331
1 I note in particular that it contemplates an application
2 submitted in another jurisdiction or parties in another jurisdiction
3 authorised by an appropriate judicial authority, and what I'd like you to
4 consider is whether -- well, first of all, are you familiar with this
5 document?
6 A. No, it is the first time I see this document, in conditions that
7 are rather precarious.
8 Q. Thank you. My question is this: Yesterday, you spoke in terms
9 of victims, and I know that you've written extensively and have views on
10 victims' right to know and the ability to be able to pierce through
11 protective measures. Would this sort of mechanism -- would this sort of
12 provision alleviate some of your concerns?
13 A. The question is, legally speaking, very sharp. If I understand
14 your question correctly, in a more layperson kind of way, your question
15 would be that another jurisdiction, apart from this current Tribunal,
16 could look into a case, or would a jurisdiction other than this Tribunal
17 could deal with this case, or what would be the consequences? In other
18 words, could a victim be tried before a national jurisdiction and then
19 ask for damages before a national jurisdiction?
20 You know, I am just reading a document which is rather complex,
21 from a legal point of view, and, therefore, I'm not quite sure about the
22 question. Could you perhaps ask the question once again? Perhaps I can
23 answer by "yes" or "no," depending on the way you ask the question.
24 Thank you.
25 Q. Thank you, Mr. Joinet. In light of the language in the first
Page 332
1 paragraph, that an application may be made by a party in another
2 jurisdiction, my question is whether -- if a victim is able to make
3 application, for instance, a victim in another jurisdiction, to vary or
4 set aside protective measures that the Tribunal previously imposed, would
5 that alleviate some of your concerns with respect to the ability of a
6 victim to know what happened and the importance of victims knowing what
7 happened?
8 A. I think I understand your question better now. But when you say
9 that you make a request before another jurisdiction, you mean another
10 international jurisdiction, such as the ICJ, or the ICC; or are you
11 talking about another jurisdiction such as a Canadian or a French court,
12 a national court? This is what is not very clear in the question that
13 you're asking me.
14 Q. The question, in particular, that I would ask you to consider is:
15 A victim is engaged in litigation in another jurisdiction, seeks
16 documents from this Tribunal and potentially makes an application, is
17 that sort of -- my question is: Is that sort of mechanism -- is that
18 sort of scheme the sort that might alleviate some of your concerns with
19 respect to the right of the victim to know?
20 A. Just give me a second. I will answer your question.
21 We are thinking at the level of principles, isn't it? So in
22 order to meet both criteria, namely, that the victim should know the
23 truth and has a right to know what happened, to find a body, for
24 instance, and so on and so forth, and thereafter or at the same time,
25 they have a right to compensation, or to reparation, these are two distinct
Page 333
1 rights. If the request before another jurisdiction aims at reducing
2 or rescinding confidentiality measures, in order to obtain information so
3 that this right to know or the right to the truth is met, or if it is to
4 obtain reparation or damages, and if this paragraph 1 allows it, then, of
5 course, that would meet the criteria aiming at obtaining reparation or
6 damages and at having the whole truth, and having also some material
7 reparation.
8 This is the question that I touched upon yesterday, it arises
9 because the practice has changed at the ICC, because you have the
10 “partie civile” concept within the ICC. So the rights of the victim
11 cannot be fulfilled before your Tribunal in terms of damages,
12 but they can be fulfilled to the extent that
13 the ICTY can establish the truth.
14 So it is a moral reparation, but is not a material reparation.
15 And this is why there could be a risk if, before another jurisdiction,
16 such as a national one, the victim could actually try to have their
17 rights upheld, and some questions could be raised regarding classified
18 documentation when dealing with genocide, and there will be a problem,
19 because the victim before a national jurisdiction has a right for their case
20 to be heard. And this is the principle of an impartial and independent court,
21 which means fair, and this victim will not have access to this evidence in
22 order to have their rights upheld before another jurisdiction. Hence
23 the request for confidentiality measures or documents to be
24 set aside in order to obtain reparation.
25 And as things stand, regarding the text that you have put
Page 334
1 forward, there might be an attempt to solve this issue, but I don't think
2 that this issue is solved by this paragraph. But perhaps I haven't quite
3 understood your question yet. I don't know.
4 Q. Fine. Thank you very much for your answer. I think it's
5 probably appropriate for me to move on to the next area, although the
6 next area also deals with the notion of the victim's right to know and
7 the importance of that.
8 And I'm going to refer you to a document that I believe my
9 learned friend put to you. It's in his material. It's a report of the
10 Economic and Social Council of the United Nations, dated the 2nd of
11 October, 1997. It is in the updated 65 ter list, volume 3 of 4, at
12 tab 95.
13 MR. METTRAUX: Your Honour, perhaps it's tab 58 and tab 59 of the
14 Defence binder.
15 JUDGE MOLOTO: Thank you, Mr. Mettraux.
16 MR. MacFARLANE: I might need the assistance of my learned friend
17 in linking his various documents, so I'm grateful for the advice from my
18 friend. I recognise that there are different binders and different
19 lists.
20 Q. Do you have the document in front of you now, Mr. Joinet?
21 A. Yes, I do.
22 Q. Thank you. Could I direct your attention to paragraph 18 in that
23 document, under the heading "The right to know."
24 A. It doesn't seem to say "Right to know." It says "Right to
25 justice," in French, "Le droit a la justice."
Page 335
1 THE INTERPRETER: I believe the witness might not look at the
2 correct document, because in the booth we have a paragraph stating "Le
3 droit savoir."
4 Q. On the English version that I'm looking at, immediately before
5 paragraph 17 is a heading "The right to know," and then there's
6 paragraph 17 and paragraph 18.
7 MR. METTRAUX: It's page 5 in the French.
8 MR. MacFARLANE:
9 Q. If I could refer you to paragraph 18, and I'll read it, and then
10 we can have a little bit of a discussion on it:
11 "Two series of measures are proposed for this purpose," and the
12 purpose is in relation to the heading "The right to know":
13 "The first is to establish, preferably as soon as possible,
14 extra-judicial commissions of inquiry, on the grounds that unless they
15 are handing down summary justice, which has too often been the case in
16 history, the courts cannot mete out swift punishment to torturers and
17 their masters. The second is aimed at preserving archives relating to
18 human rights violations."
19 You recall this statement? It is a report prepared by you .
20 A. Yes, indeed.
21 Q. Now, I would ask you to consider that paragraph against the
22 backdrop of one of your comments yesterday to the effect that
23 international justice is slow, and what I'd ask you to consider is
24 whether or not your views have changed since 1997 in light of two
25 developments that I'd like to draw to your attention and get your
Page 336
1 comments on. The first is what's referred to often as the Bloody Sunday
2 Inquiry or the Saville Inquiry in the United Kingdom, which was
3 established in 1998, and after 12 years is still not finished. So we
4 have a commission of inquiry in the United Kingdom that has lasted 12
5 years, and we still don't have a report. Are you familiar with that
6 inquiry in the United Kingdom?
7 A. I have not really been contacted regarding this. I am not aware
8 of what is happening in the UK
9 Q. Perhaps I could be a bit more precise. Many people would argue
10 that two of the leading countries, when it comes to commissions of
11 inquiry, in calling them, are the United Kingdom and Canada. Are you
12 familiar with the Air India Inquiry in Canada which --
13 MR. KHAN: Your Honour, I do apologise. I happen to know a
14 little bit about the Bloody Sunday Inquiry. I wonder the basis upon
15 which my learned friend states it's not finished. Lord Saville reported
16 some time ago.
17 JUDGE MOLOTO: Mr. MacFarlane.
18 MR. MacFARLANE: My basis was the web site of the inquiry, which
19 indicated that the report was expected in early 2010. Whether or not
20 there is an interim report, I don't know, but the material that --
21 including the web site of the inquiry, suggested that the final report
22 was not in.
23 JUDGE MOLOTO: Thank you.
24 MR. MacFARLANE:
25 Q. Mr. Joinet, are you familiar with the Air India Inquiry in
Page 337
1 Canada
2 A. There are thousands of inquiries. I cannot answer about an
3 inquiry regarding, I believe, an air crash.
4 JUDGE MOLOTO: Mr. Joinet, you're not being asked about thousands
5 of inquiries. You're asked about a specific inquiry. Just limit
6 yourself to that inquiry.
7 THE WITNESS: [Interpretation] If you want a yes/no answer, the
8 answer is no.
9 MR. MacFARLANE:
10 Q. Mr. Joinet, if I was to suggest to you that at least these two
11 particular inquiries have lasted years and years and years, without a
12 report, would that change your view on the viability of commissions of
13 inquiry, firstly? And, secondly, would it change your view on the
14 potential viability of tribunals such as this to deal with matters more
15 expeditiously than commissions of inquiry?
16 A. No, I do not believe that my point of view would change or
17 evolve. We had a whole debate about fact-finding commissions, and the
18 main principle which is developed in the report was that justice cannot
19 happen quickly because -- and there would be risks of errors. I've
20 experienced that in my youth. I was born in 1934, and I remember that after
21 the liberation of France
22 atrocious sentences. People were sentenced after a three-day trial, people
23 were executed, so I was very much struck by that. So the question is:
24 How can you really investigate on the spot? You need to investigate, which
25 is what we did with Mazowiecki. And the inquiry with Mr. Mazowiecki was not
Page 338
1 reliable, judicially speaking. You needed to have another commission
2 that was then put into a new document that could be used by tribunals or
3 jurisdictions, so you need another approach.
4 In our legal system, we call it a quasi jurisdictional system;
5 hence, the idea of the truth and reconciliation commissions, with a
6 difference in some cases. We do not reveal names. It was the case for
7 Argentina
8 South Africa, but that is the idea behind those types of jurisdictions.
9 We do not wait for justice to be in a position to go through the various
10 cases, because it takes time; and, therefore, that was the need for these
11 commissions, which has developed extensively.
12 I could go on at length on this, but they also play a role of
13 preparation of the mindset of populations, because what is very important
14 in this issue is that when you look for reconciliation, which is the
15 ultimate goal, reconciliation of various people; but I believe that
16 before reconciliation, which is of a moral nature, you have conciliation,
17 which means that you must make sure that people, at some stage, sit
18 around the table, which is of course a figurative sense, and we have to
19 progress towards bringing the whole truth, and we have to do this
20 together. And this is why those truth and reconciliation commissions
21 work necessarily much faster than courts or tribunals.
22 And I will repeat that I'm not in favour with the slowness of
23 international justice, but my experience, as a magistrate within a
24 supreme court, shows that when you look for the truth within the
25 framework of an investigating magistrate or a tribunal, it takes time, and so
Page 339
1 there is a complimentarity [as interpreted] that I've experienced in the
2 former Yugoslavia
3 and then everything was put together in a more legal or judiciary manner
4 with the Bassiouni Commission, and then institutions such as yours have
5 then followed this up.
6 So it is an entire process, and there is no point in time
7 when justice can be rendered speedily.
8 Q. Just one final question in this area, Mr. Joinet. And accepting
9 my learned friend's point with respect to whether or not the report is
10 actually in or not, the -- as an example, the Bloody Sunday Inquiry in
11 the UK
12 Is that, in your view, acceptable speedy justice for victims?
13 A. I do not feel that whichever victim you speak of, they would be
14 happy with any slowness in the judicial process. It's not satisfactory,
15 it's never satisfactory. But, between the desired ideal, and what is
16 practically possible, international justice is trying
17 to do what is practically possible.
18 Q. Thank you. I'd like to move on to another area, Mr. Joinet, and
19 I'd like to revisit some of your evidence from yesterday.
20 And at a few points, you spoke about confidential orders,
21 protective measures, and the situation when the information sought to be
22 protected is already out there in the public domain, and I believe that
23 you used the phrase "public domain." Do you recall that part of your
24 testimony?
25 A. Yes. In fact, I quoted a case of espionage, if that's what you
Page 340
1 are alluding to. There was researcher who was suspected of having given
2 a Soviet agent some secret information.
3 I have said it yesterday, but I can repeat it. I do not want to use up
4 the time of the Court. But we realised that everything had already been
5 published in scientific reviews, so it was in the public domain. This
6 was the example that I quoted yesterday.
7 Q. Thank you. I'd like to ask you some questions about the notion
8 of public domain and the point at which something enters into the public
9 domain such that some would argue that the confidentiality has
10 disappeared. So I'd like to pose a series of scenarios to you to obtain
11 your observations, your thoughts, on whether that is sufficient to
12 justify the conclusion that something is in the public domain.
13 So these are the scenarios I'd like to get your thoughts on:
14 Assume for the moment that a tribunal, an international criminal
15 tribunal, has issued an order -- a confidential order for protective
16 measures, and a newspaper in India
17 Some of the facts they get right, some of the facts they get wrong. In
18 your view, has that entered into the public domain such that
19 confidentiality has disappeared?
20 A. In the exact French terminology, we do not say that they belong
21 to the public domain, but they have been made public by someone that
22 might be based in India
23 authority will make something public. It could be through a press
24 release from a ministry; whereas here, it is actually a leak,
25 so it is made public.
Page 341
1 This is a nuance that I have in the French language that may not
2 exist in the English language, but the result is the same, of course.
3 Q. Is it relevant, in your view, of the fact that the newspapers got
4 some of their facts right and some of their facts wrong?
5 A. What is the English word for "pertinence" that was used? It was
6 "relevant" in English.
7 Q. "Relevance," "pertinent."
8 A. So is that "relevant"? If they are true facts and full facts,
9 well, then, the author of this article is not a good professional
10 journalist. What else can I say? It is his problem or her problem.
11 Q. Does that affect the conclusion as to whether or not the
12 protective measures in the order have been affected? Does that -- is
13 there any relevance assigned to the fact that the newspaper got it right
14 and got it wrong in assessing whether or not confidentiality has been
15 affected?
16 A. Since the journalist has made public some information, whether it
17 is false or true, confidentiality doesn't exist anymore, if that is the
18 sense or the purpose of your question. That's how I understood it.
19 Q. So just to clarify, then, your view would be if a single
20 newspaper in a faraway country reported on the protective measures order
21 and got some of the facts right and some of the facts wrong, that
22 confidentiality has disappeared?
23 A. In a prima facie manner, I would say, yes, something that was
24 made public is no longer confidential.
25 Q. Would that affect the order itself? That is to say, would the
Page 342
1 reporting in India
2 was issued confidentially, or does the order remain fully in place to
3 protect the information?
4 A. Given my legal background, I do make a distinction between the container
5 and the content, and the order cannot be considered as confidential. An order
6 for confidentiality cannot be confidential. Otherwise, we are talking about
7 secrecy in justice. What has to remain confidential is the documents to which
8 this order is attached and for which this order has been issued. This is the
9 example that I gave. In France
10 or a closed session, the decision has to be made in open session, and has to
11 be reasoned. The same applies here when you have an order for confidentiality
12 of documents, this order has to be public and reasoned. But once this order
13 has been made public, the evidence, the facts and in the present case,
14 the Serbian documents, which are covered by the confidentiality nature,
15 but not the order itself, in my legal background, of course.
16 Q. In a situation where a journalist has decided to write with
17 respect to a confidential order, and, for instance, writes a newspaper
18 article, or a book, or something of that sort, who is the one that
19 decides whether that act, by itself, has affected the order, and the
20 confidential nature of the order, and the protective nature of that
21 order? Who decides that?
22 A. In my legal system, in such a situation the prosecutor may or may not
23 initiate proceedings. It is not the tribunal that does it. You cannot be
24 a tribunal and a prosecutor at the same time, so the tribunal cannot
25 decide whether charges will be brought. I'm talking about the tribunal that
Page 343
1 issued this order. So in my own legal system, the prosecutor will feel
2 that there has been a violation, and in that case, they will contact the
3 relevant jurisdiction for this contempt of court case. That doesn't
4 exist in my system, so it would be a violation of the secrecy of the
5 investigation process, but the approach is the same. So to your
6 question, who will take the initiative, it will be actually the
7 prosecutor's office, not the tribunal, as it would then be both judge and
8 party to the case, and then the tribunal decides whether to confirm
9 charges or not. So I believe that was the question that you asked me.
10 Is the answer what you were expecting from me?
11 I'm not quite sure I answered your question.
12 Q. Perhaps we can approach it this way: Can the journalist
13 unilaterally make the decision that an order is no longer confidential or
14 does that decision rest with the tribunal, with the court that issued the
15 order?
16 A. Well, the job of a journalist is to produce information,
17 especially when dealing with investigative journalism, so this is their
18 core business. Now, in order to know whether they were releasing
19 classified information, it will be up to the prosecutor's office to see
20 whether a violation was committed. And if that is the case, in my
21 country they will refer this to the tribunal in order for a proceedings
22 to be launched against this journalist.
23 Q. So that the final determination and the decision results -- or
24 falls to judicial hands?
25 A. It falls to judicial hands in my system, so you will have the
Page 344
1 tribunal of first instance, then you will have the Court of Appeal, and
2 then you will have the Court of Cessation, so the court of last appeal,
3 and then you will have the European Court of Human Rights, if required.
4 Q. So, in other words, because it false to judicial hands, you can't
5 have a situation where a journalist is saying, Well, I'm going to make
6 the decision that is no longer confidential? It doesn't fall to the
7 journalist, it falls to judicial hands?
8 A. Well, the journalist will not make any decision. The journalist
9 will gather some information, and what happens, usually, and it is
10 actually quite frequent, journalists produce information that are covered
11 by a "top secret" seal. We have a newspaper in France called "Le Canard
12 Enchaine," and their main job is to do that, so to say. But it is not up
13 to the journalist to decide. The journalist carries out his/her
14 professional duties, and takes some risks, but it is up to the competent
15 court. If the prosecutor’s office thinks there are grounds to institute
16 proceedings, they will do it. But it is not up to the journalist or the
17 tribunal. And if the prosecutor does not refer the case to the tribunal,
18 the tribunal cannot decide on its own to take the case. Otherwise, the
19 tribunal would be both the judge and the party in the case.
20 Q. In other words, as I understand what you're saying, if a
21 journalist decides to take the risk, to use your word, to take the risk,
22 the matter could be referred to the prosecutor's office and then to the
23 judicial authorities for a decision; is that correct?
24 A. It will be sent to the prosecutor's office.
25 And it will be up to the prosecutor to take initiative proprio
Page 345
1 motu. This is what we call the principle of discretionary
2 prosecution, and this is the remit of the prosecutor's
3 office.
4 Q. Thank you. I think I'll move on to the next point, and I'd like
5 to refer to a couple of reports that were drawn to your attention
6 yesterday. The first was referred to as item number 79 in the Defence
7 binder. It's a joint declaration.
8 JUDGE MOLOTO: By "item," you mean "tab"?
9 MR. MacFARLANE: Yes, I'm sorry, "tab," that's correct.
10 MR. METTRAUX: Your Honour, we will not object to the document,
11 in view of your earlier rulings. We'll simply indicate for the record
12 that this document was not used as shown to Mr. Joinet in
13 examination-in-chief.
14 JUDGE MOLOTO: But it's a bundle you provided?
15 MR. METTRAUX: I'm sorry, Your Honour.
16 JUDGE MOLOTO: It's a bundle you provided?
17 MR. METTRAUX: That's correct, Your Honour, and it's in tab 79.
18 JUDGE MOLOTO: Thank you.
19 MR. MacFARLANE: Perhaps I could just lay the foundation while
20 the document is being sought, for the benefit of the witness.
21 This is a document forming part of the Defence documents. It's
22 headed "International Mechanisms for Promoting Freedom of Expression," a
23 joint declaration by the UN special rapporteur on freedom of opinion and
24 expression, the OSCE representative on freedom in the media and the OAS
25 special rapporteur on freedom of expression. So there has been UN
Page 346
1 involvement through the UN special rapporteur on freedom of information
2 and expression.
3 THE WITNESS: [Interpretation] Is there a copy in French?
4 MR. MacFARLANE: I don't believe there is.
5 THE WITNESS: [Interpretation] Should I read everything?
6 MR. MacFARLANE: I will read to you what I believe to be the
7 relevant parts, with a view to assisting you.
8 The heading is a "Joint Declaration," as I mentioned a moment
9 ago, involving the UN special rapporteur and two others having met in
10 London
11 Campaign for Free Expression." And I'd like to draw to your attention
12 the bottom of page 1, under the heading "Freedom of expression and the
13 administration of justice." And there are a series of bullet points
14 under that heading of "Freedom of expression and the administration of
15 justice." The first one I'll read to you, and it will be translated for
16 you:
17 "Special restrictions on commenting on courts and judges cannot
18 be justified. The judiciary play a key public role and, as such, must be
19 subject to open public scrutiny."
20 That's the broad, general statement. The next bullet point at
21 the top of page 2 is the one that I'll be asking you -- actually, the
22 next two I'll be asking you questions about. The one at the top of
23 page 2 reads:
24 "No restrictions on reporting on ongoing legal proceedings may be
25 justified unless there is a substantial risk of serious prejudice to the
Page 347
1 fairness of those proceedings and the threat to the right to a fair trial
2 or to the presumption of innocence outweighs the harm to freedom of
3 expression."
4 Q. So just pausing on that one for the moment, "no restrictions on
5 reporting on ongoing legal proceedings may be justified unless ..." and
6 then there are exceptions put forward, "series prejudice to the fairness
7 of those proceedings," "threat to a fair trial," and so on, you would
8 agree, I assume, that while the emphasis in this document, in the joint
9 declaration, is that there should be no restrictions on reporting on
10 ongoing proceedings, there are exceptions. Even under the joint
11 declaration, there are recognised exceptions to that?
12 A. Yes. It is another way of saying what I believe I said
13 yesterday. The first paragraph states that when dealing with freedom of
14 expression, freedom should be the rule. And restrictions are admissible,
15 but that should be the exception, and any exception needs to have a
16 strict interpretation, and the grounds that are given would
17 be that when there is a violation of the right to a fair trial or
18 a threat to the presumption of innocence. So this is where the
19 difficulty lies.
20 If you have a restriction that would stop you from having access
21 to some evidence, could we consider that this restriction will constitute
22 a threat to the right of a fair trial? I believe so. If some evidence
23 are not made known, how will the trial be fair? Because some parties
24 will have the evidence, such as a country involved in the case, but not
25 the victim. And as for the presumption of innocence and the threat thereof, I
Page 348
1 remember that when I testified in a trial against Argentinean generals,
2 of course there was the issue of not communicating some information that
3 remained classified, but while giving this information, there was no
4 threat to the presumption of innocence. Otherwise, justice cannot be
5 rendered.
6 So it is very important to underscore, as Mr. Ligabo said, that
7 they have really pointed out that the rule is freedom, the exception is
8 restriction, and they are strict interpretations. So restrictions can
9 only apply in two cases: violation of the right to a fair trial,
10 and the presumption of innocence.
11 Q. Thank you. I'd like to move to the next bullet point immediately
12 below that which deals with sanctions that might be applied as a result
13 of legal proceedings, and it reads:
14 "Any sanctions for reporting on legal proceedings should be
15 applied only after a fair and public hearing by a competent, independent
16 and impartial tribunal; the practice of summary justice being applied in
17 cases involving criticism of judicial proceedings is unacceptable."
18 And after you've had an opportunity to read that and consider
19 that, my question is this: Does it not, even in a joint declaration with
20 respect to freedom of opinion and expression -- is it not clear that even
21 within that framework, a sanction is contemplated for reporting on legal
22 proceedings in appropriate circumstances?
23 A. You are saying -- I'm just reading this in English again.
24 The sanction that is mentioned in this paragraph, it will be a
25 sanction that would be made against a journalist that would have made
Page 349
1 something public. Is that what this sanction is about in this paragraph?
2 JUDGE MOLOTO: It doesn't have to be a journalist. Anybody who
3 reports on the proceedings.
4 THE WITNESS: [Interpretation] Yes, of course.
5 MR. MacFARLANE: Thank you.
6 THE WITNESS: [Interpretation] It seems that if they are subjected
7 to legal proceedings, it's what we said earlier on, the difficulty - and
8 that's what we mentioned yesterday - is to know whether there is
9 sufficient proportionality between the legal proceedings and the facts
10 that are the subject of those legal proceedings. This is always the
11 principle of international law. A waiver is admissible or an exception
12 is admissible providing it is proportional to the goal, that’s the point,
13 and it's the role of the judges to assess the proportionality
14 nature of the process.
15 MR. MacFARLANE: Thank you.
16 Q. I'd like to move to what I believe is the next document in, I
17 believe, it's tab 80 again in the Defence materials. It's headed
18 "Council of Europe, Committee of Ministers," a declaration. That should
19 be tab 80. I don't believe that we have a French version, so I'll -- oh,
20 we do, we do. 81 is the French version.
21 And what I'll be drawing to your attention, Mr. Joinet, is on
22 page 2, just so you know, under the heading in English "Calls on Member
23 States." So there is a series of preambles in the declaration, and then
24 after the preambles, the declaration calls on member states to do certain
25 things.
Page 350
1 And I'd like to direct your attention to the very first item that
2 the ministers called on members states to do. Could you read that first
3 one, please?
4 A. "Calls on member states to encourage responsible reporting on
5 criminal proceedings."
6 Is that what you would like me to read? Okay, I'll ask you for a
7 couple of minutes. Thanks.
8 I have finished reading this paragraph.
9 Q. Thank you. The paragraph provides that ministers called on
10 member states to encourage responsible reporting on criminal proceedings
11 in the media by supporting the training of journalists in the field of
12 law and court procedure, in cooperation with the media and their
13 professional organisations, and so on. What I'd like you to consider is
14 the opening words, "To encourage responsible reporting on criminal
15 proceedings in the media," and my question to you is this: Is it
16 responsible, on the part of a reporter, in the context that we're talking
17 about, to write about and disclose confidential information?
18 A. The French version of this paragraph deals with an issue that I'm
19 very well aware of. What we are asking the member states is to encourage
20 good training of journalists. Why? Because we have noticed in several
21 countries, including in mine, that the general public has difficulties to
22 understand how justice is rendered, how --
23 JUDGE MOLOTO: Mr. Joinet, we don't have much time. The question
24 is not about education. The question is: Is it responsible? You are
25 being asked about the first part of that paragraph, not the latter part.
Page 351
1 Could you please try to stay on to the question. Listen to the question
2 carefully, and please answer the question as directly and succinctly as
3 you possibly can.
4 Maybe Mr. Prosecutor can --
5 THE WITNESS: [Interpretation] As the question deals with a text
6 that I've been asked to read, the answer is, yes, one has to be
7 responsible when we are reporting on justice to help the general public
8 to better understand and to make sure that the interests of the various
9 parties are captured. This is the answer that goes without saying, once
10 you have read this paragraph.
11 MR. MacFARLANE:
12 Q. Perhaps I could reframe it slightly to be more precise.
13 Ministers called on member states to encourage responsible
14 reporting on criminal proceedings. My question is: Is it responsible,
15 on the part of a journalist, to write in the media about information
16 which is confidential?
17 A. It could be a male or female journalist, but if the role of a
18 journalist is to write about something, it is up to the prosecutor's
19 office to institute proceedings, if they feel there has been a
20 violation. I go back to this same issue again and again, but this --
21 JUDGE MOLOTO: Mr. Joinet, yes, we have dealt with whether the
22 prosecution will initiate proceedings. The question is -- you are being
23 asked a question specifically. Is it responsible for a journalist to
24 report about confidential material in legal proceedings? That's a very
25 simple question. It really doesn't need you to go all over the shore.
Page 352
1 You can answer, yes, it is response; no, it is not responsible; I don't
2 know.
3 THE WITNESS: [Interpretation] Well, to answer in a very binary
4 fashion to a complex question, I believe, yes, it is the role of a
5 journalist to seek information.
6 JUDGE MOLOTO: But that's not the question. The question is: Is
7 it responsible to report on a confidential matter? The question is not:
8 What is the role of the journalist?
9 THE WITNESS: [Interpretation] The journalist should not feel that
10 they are responsible or not. It is up to the jurisdiction in question to
11 decide whether they are responsible or not. If the journalist feels that
12 they are bound by everything that is confidential, there would be a
13 limitation to the role of the press in such a way that a lot of world
14 events could not be reported by the press.
15 JUDGE MOLOTO: But the point is, since yesterday you've been
16 testifying here and telling us how much you have written around this area
17 and how much you know about this area. The question has just been put to
18 you, putting aside the judiciary: Do you consider it responsible to do
19 so, given all the knowledge that you have and that you've been testifying
20 to for the last two days?
21 THE WITNESS: [Interpretation] If I were a journalist, I would
22 say, yes --
23 JUDGE MOLOTO: Not as a journalist. You, as you are, sitting
24 there, as you are, is it responsible or is it not responsible to do that?
25 THE WITNESS: [Interpretation] So I have to answer as if I wasn't
Page 353
1 in the situation of a journalist? I would tend to say that it is
2 responsible, but it depends as to whether you're a journalist, an
3 attorney-at-law, or an investigating magistrate. There is no yes/no
4 answer to this question.
5 JUDGE MOLOTO: Supposing you are Louis Joinet. Would
6 Louis Joinet regard it as responsible or not responsible?
7 THE WITNESS: [Interpretation] Responsible, as in feeling that I
8 feel the obligation of doing so? I think I would, provided that I'm in a
9 situation when the severity of the facts is such that it is my duty to
10 reveal those facts. And then, if one feels that I went beyond my call of
11 duty, then the legal authorities will instigate some proceedings. But
12 otherwise it would be self-censorship, and this is something that is very
13 important because it is at the core of those jobs.
14 JUDGE MOLOTO: Would that be a convenient time?
15 MR. MacFARLANE: Yes, thank you.
16 JUDGE MOLOTO: We'll take a break and come back at quarter to.
17 Court adjourned.
18 --- Recess taken at 10.20 a.m.
19 --- On resuming at 10.47 a.m.
20 JUDGE MOLOTO: Yes, Mr. MacFarlane.
21 MR. MacFARLANE: Thank you, Your Honours.
22 Q. Mr. Joinet, I don't have a whole lot of questions left; I do have
23 a few. And the first area deals with some of the -- or one of the
24 documents that was put to you by my learned friend yesterday. It's in
25 the current -- I'll call it the current Mr. Joinet binder that was used
Page 354
1 yesterday, and it's tab 54.
2 MR. METTRAUX: The French is at 55, Your Honour.
3 MR. MacFARLANE: The French will be 55.
4 Q. Just for a little bit of context, this was the Economic and
5 Social Council report tended by my learned friend, dated 1991, and the
6 heading was "Review of further developments in fields with which the
7 subcommission has been concerned," specifically the right to freedom of
8 opinion and expression. And I draw to your attention paragraph -
9 actually, two paragraphs that my learned friend drew to your attention,
10 paragraphs 25 and 26, under the heading of "The question of contempt of
11 court."
12 Do you have paragraph 25 in front of you, Mr. Joinet?
13 A. Yes, indeed.
14 Q. Do you recall that my learned friend read a portion of this
15 paragraph, but I think it's important that the full paragraph be read.
16 And in English, it reads:
17 "Another member suggested that the rapporteur should go
18 thoroughly into the question of contempt of court in order to think about
19 a restrictive interpretation of that concept. In view of its scope, as a
20 measure restrictive of freedom, it was feared that it might come into
21 unduly common use in the courts."
22 And my learned friend read that part to you, but the next
23 sentence is important, and I'd like to get some background from you. The
24 next sentence, the final sentence says:
25 "There again was not time to go into the matter."
Page 355
1 Could you tell us a little bit about what that sentence meant?
2 A. This sentence, and I think I have a good memory on this matter
3 because there were a lot of discussions, and we consulted colleagues from
4 the subcommission before we drafted the report that you just mentioned,
5 the reason it took quite a while, to start with, is that we wanted to
6 capture what it meant in both legal systems, so common law and civil law.
7 We wanted to try and understand what were the differences and what were
8 the common points between contempt of court and the French concept of
9 "outrage a magistrat," which is the other concept, because we felt that
10 it would be difficult to move ahead on this issue without having a very
11 good knowledge of both legal backgrounds. And they have the same
12 objective, but they have different approaches, as you're aware.
13 The concept of contempt of court is more wide ranging, if I
14 recollect correctly, compared to the concept of "outrage" in French. But
15 the question that was raised yesterday, and I mentioned this yesterday
16 already, was to know whether the legal consequences were the same,
17 whether what is captured in contempt of court happened while the matter
18 was ongoing or pending, namely, while there hadn't been any final
19 determination, death of the accused or statute of limitations. So we felt
20 that if we are within a period where justice has not been fully
21 administered or rendered, there would be a difference compared to a
22 case where the case has terminated by a final judgment, death or the
23 statute of limitation.
24 And in the common-law system, the contempt of court exists in order to
25 prevent interference with the administration of justice. In France
Page 356
1 is more "ad hominem" which means that it is the magistrate that is
2 targeted, whereas contempt of court is more dealing with jurisdiction and
3 the administering of justice in general.
4 And the debate that we had is that if the facts in question
5 happen before the matter is closed, the administration of justice is put
6 in question, but once the matter is concluded or is closed, the
7 administration of justice, by statutes of limitations, or by death, or by
8 decision, has fulfilled its duties; and, therefore, the contempt of court
9 is not as important once the matter is closed as if it was during the
10 administration of justice.
11 So this took us a lot of time, of course, because we had to
12 discuss this in plenary session, and we did not have the time in plenary
13 session to discuss all this, and we decided to leave it there. We
14 contemplated to appoint an ad hoc rapporteur to go more in depth on this
15 issue, but in the end, it didn't happen because the subcommission changed
16 in its composition, and so it did not happen.
17 So that explains this sentence.
18 Q. Thank you. So when, at the end of that paragraph, it says that
19 there again was -- there is not time to go into the matter, that was a
20 signal that the views expressed here were preliminary views, that there
21 wasn't that time for a fulsome discussion?
22 A. Yes, that's correct.
23 Q. With respect to paragraph number 26, a similar point. Yesterday,
24 a portion of this was dealt with. The paragraph reads:
25 "The desire was expressed that more specific attention should be
Page 357
1 paid to the protection of journalists (whether or not on mission), among
2 other measures by appointing a special rapporteur."
3 But the portion that was not dealt with yesterday and which I
4 would ask you to comment on is the next sentence:
5 "It is too early for anything to be said on the subject in the
6 present report ..."
7 Is this essentially the same thing, that it was simply too early
8 to have a fulsome discussion and to arrive at any clear conclusions?
9 A. Yes, this is precisely what it means. It doesn't mean that no
10 initiative was taken thereafter.
11 Q. Thank you. Mr. Joinet, at one point yesterday in your testimony,
12 you made a comment to the effect that -- you made an observation with
13 respect to the objectives of the sentencing process, and you mentioned
14 that the sentencing process was intended and was effective in two ways;
15 firstly, with respect to punishment, and, secondly, with respect to
16 prevention. Do you recall that?
17 A. When talking about the role of international jurisdiction, I
18 talked about a sanction and the role of prevention within the framework
19 of international jurisdiction, if my memory serves me right.
20 Q. But the point that I'm leading up to is that, in terms of a
21 sentencing process, you saw two dimensions to it, two objectives. One is
22 punishment, but the second is prevention in the future .
23 MR. METTRAUX: Your Honour, if Mr. MacFarlane wished to put this
24 as the proposition of the witness, it would be grateful that he indicate
25 the page of the transcript which he refers, because we have no memory of
Page 358
1 Mr. Joinet giving evidence on the issue of sentencing. The issue that he
2 talked about was, indeed, the one that he's mentioned a moment ago.
3 JUDGE MOLOTO: Mr. MacFarlane, I'm not sure what was mentioned a
4 moment ago that Mr. Mettraux felt -- and, Mr. Mettraux, the witness
5 himself said:
6 "When talking about the role of international jurisdiction, I
7 talked about the sanction and the role of prevention within the framework
8 of international ...," so the witness does remember.
9 MR. METTRAUX: Your Honour, the matter that was raised and the
10 questions that was answered in relation to that, as we understand, was
11 the role -- what was the role of the tribunal, and he mentioned that he
12 could see two roles.
13 JUDGE MOLOTO: But the witness does remember. He can clearly --
14 Mr. Mettraux.
15 MR. METTRAUX: If Your Honour please.
16 MR. MacFARLANE:
17 Q. Mr. Joinet, would be fair to say that in your view, the
18 sentencing process does have those two elements or objectives; that is,
19 punishment and prevention?
20 A. The answer is, yes. Prevention will be all the more effective
21 if we have a sentencing process as well, if someone is found guilty, of
22 course. And I remember talking about it, because I gave an example which
23 happened during a meeting the prime minister that attended too. There
24 was the chief of staff, upon returning from a trip in the Caucasus and the
25 Balkans, said that the military chiefs are starting to take this seriously,
Page 359
1 and they are starting to realise that they are running some risks. So
2 I have already touched upon this issue, and I remember that very clearly.
3 MR. MacFARLANE: Thank you. And just for the sake of the record,
4 in terms of the reference, we've just done an electronic search, which is
5 so handy, and I refer to the bottom of page 287 and the top of page 288
6 as the points of reference.
7 JUDGE MOLOTO: Thank you, Mr. MacFarlane.
8 MR. MacFARLANE:
9 Q. Now, the two-prong objectives that you've spoken about,
10 Mr. Joinet, I take it that they ought to apply to all forms of alleged
11 criminal conduct, including contempt of court.
12 A. This has to do with prevention? Yes. And, again, we must uphold
13 the proportionality principle.
14 Q. Would it be fair to say that in a contempt of court context, that
15 prevention is important because it sends a signal to other future writers
16 and authors?
17 A. Would you please repeat your question?
18 Q. Would it be fair to say that in a contempt of court context, that
19 prevention is important because it sends a signal to other future writers
20 and authors?
21 A. This could be relevant, indeed, but the question is to know
22 whether the credibility of the court or the tribunal was in question.
23 Q. No, my question doesn't relate to the credibility of the
24 tribunal, but rather to the sentencing process. And my suggestion to
25 you, and I'd like your comment on it, is that as part of the sentencing
Page 360
1 in a particular case, and given the prevention aspect, that sentencing
2 can act as an important message or signal to future authors who might
3 consider taking a risk in the future.
4 A. It can go both ways. It can be an important signal for other
5 people that would like to act in this regard, but it could also have some
6 devastating effects on the credibility of a given jurisdiction. Every
7 case is different.
8 MR. MacFARLANE: Thank you.
9 Your Honours, if I might have just 30 seconds to check my notes,
10 I think I'm concluded, but ...
11 Thank you, Your Honours. That concludes my examination of the
12 witness.
13 JUDGE MOLOTO: Thank you very much, Mr. MacFarlane.
14 Any re-examination, Mr. Mettraux?
15 MR. METTRAUX: Yes, Your Honour.
16 Re-examination by Mr. Mettraux:
17 Q. Good morning, Mr. Joinet. I have a few questions in
18 re-examination for you. And because we're pressed by time, I'll ask you,
19 to the extent you can, to answer as shortly as you can. And if you feel
20 able to do so, to answer with "yes" or "no."
21 Do you recall yesterday, at page 91 and 94 to 95, the Prosecutor
22 asked you a few questions about conflicts of rights? Do you remember him
23 asking you about that?
24 Mr. Joinet, don't concern yourself with the transcript. Just
25 focus on my question. Do you recall the questions about conflicts of
Page 361
1 rights by the Prosecutor?
2 A. Yes, I believe that that was at the beginning of his line of
3 questioning. This was a question that I hadn't really grasped very
4 clearly at first.
5 Q. Do you also recall questions being asked about the importance of
6 courts to be able to enforce their orders? Do you recall those
7 questions?
8 A. Yes, I do.
9 Q. Do you recall also -- and, Your Honour, for the record, it was
10 page 95.
11 Do you recall also being asked questions about the permissible
12 limitations to the principle of freedom of expressions? Do you recall
13 those questions?
14 A. Yes. It was "admissible" in French for "permissible" in English.
15 There is a nuance in French.
16 Q. And do you recall being asked specifically about the principle of
17 proportionality and how it applies in the context of freedom of
18 expression? Do you recall these questions?
19 A. Yes; very well, actually. This is a core issue to this
20 discussion.
21 Q. And do you recall earlier today being asked to comment about
22 various decisions from various jurisdictions? Do you recall those
23 questions? Canada
24 A. Yes, I remember that the question was asked, and I was not in a
25 position to reply to that question.
Page 362
1 Q. And do you recall also being asked a question about information
2 that was in the public domain and the significance of that fact? Do you
3 recall these questions of this morning?
4 A. Yes, absolutely.
5 MR. METTRAUX: Your Honour, with the assistance of the usher,
6 there's a short bundle of four documents which we would like distributed
7 to the Court, the Prosecutor, and to Mr. Joinet.
8 Q. Mr. Joinet, so that you can familiarise yourself with the
9 document, they are four decisions. I've put them in English and in
10 French so everyone will follow. As you'll see, number 2 and 4 are the
11 versions in French, and I will ask you first to turn to tab 2 of that
12 document.
13 That would be tab 1, Your Honours, in the English.
14 And for the record, Mr. Joinet, this is a case from the European
15 Court of Human Rights. It's the case of Mr. Weber versus Switzerland.
16 It's a judgement of the 22nd of May of 1990. And as I indicated, it
17 comes from the ECHR.
18 Mr. Joinet, with your assistance, could you turn, please, to
19 paragraph 7 of this decision?
20 THE INTERPRETER: I'm afraid the interpreters do not have the set
21 of documents.
22 MR. METTRAUX: With the assistance of the usher, could copies of
23 this document be given to the interpreters, please. And I apologise to
24 the interpreters.
25 Q. Mr. Joinet, do you have paragraph 7 of that decision in front of
Page 363
1 you?
2 A. I believe I have the correct documents, yes.
3 Q. If you look at paragraph 7, you will see that Mr. Weber is a
4 Swiss journalist that comes from my part of the world in the Canton
5 Vaud. Do you see that?
6 A. Yes, I do.
7 Q. Can I ask you now to turn to paragraph 13 of that same decision?
8 A. Yes.
9 Q. Here, I'll ask you specifically to note the date that is
10 mentioned in that paragraph. It says that on the 2nd of March of 1982,
11 Mr. Weber took part at the press conference at which a number of facts
12 that pertain to an ongoing criminal investigations were disclosed. Can
13 you see that?
14 A. Yes, I do.
15 Q. And if you look at the next paragraph in that document, you'll
16 see it's paragraph 14, it says that on the next day, the 3rd of March of
17 1982, a Swiss newspaper, "La Gazette de Lausanne," reported what the
18 applicant had said. Can you see that?
19 A. Yes, I can see that.
20 Q. If you move onward to paragraph 15 of that document, you will see
21 that following this disclosure of confidential judicial information, a
22 criminal investigation for breach of confidentiality -- a judicial
23 investigation was started. Can you see that?
24 A. Yes, I can see that.
25 Q. The next paragraph in the judgement, and I'll just ask you to
Page 364
1 take my word for it, and if there's any dispute about that,
2 Mr. MacFarlane can perhaps raise it, but the rest of the passage is
3 mentioned, the fact that Mr. Weber was prosecuted in Switzerland and was
4 convicted for his actions.
5 Now, can I ask you to go to paragraph 49 of that document.
6 Perhaps I'll give you a few seconds, Mr. Joinet, to read that paragraph.
7 But may I put it to you, and you can tell me whether you agree or
8 disagree afterwards, that the argument that Mr. Weber raised before the
9 European Court of Human Rights in that particular case was effectively to
10 say that the information which he disclosed was of public knowledge or in
11 the public domain and that the criminal conviction that was imposed on
12 him in Switzerland
13 under Article 10 of the European Convention. Can you tell me whether
14 that generally meets what Mr. Weber is suggesting here?
15 A. Yes, especially Article 10, yes, which I'm very well aware of.
16 Q. And if you look now at the next paragraph, those are the
17 submissions of the respondent, the Swiss government, and I will read to
18 you what the Swiss government said in response to what Mr. Weber was
19 saying. They said this:
20 "In the government's submission, this finding was not decisive
21 because of the formal nature of the confidentiality referred to in
22 Article 184 and 185 of the Code. According to the relevant Swiss case
23 law and legal literature, the mere fact of communicating a piece of
24 information in a judicial investigation was sufficient for the commission
25 of the offence, whether it was common knowledge beforehand, and its
Page 365
1 importance or degree of confidentiality were relevant only in determining
2 the amount of the fine."
3 Do you see that submission of the Swiss government?
4 A. I do, yes. It's the next paragraph.
5 Q. I'll ask you to turn to the next paragraph, paragraph 51 of this
6 document, and it's the finding of the Court, of the European Court of
7 Human Rights on that case, and it says this -- talking about the
8 submission of the Swiss government, the Court said this:
9 "The Court finds this submission unpersuasive. For the purposes
10 of the Convention, the interest in maintaining the confidentiality of the
11 aforementioned facts no longer existed on 2nd March 1982."
12 And you will recall that this date, Mr. Joinet, is the date at
13 which the press conference took place. And it goes on to say:
14 "On that date, therefore, the penalty imposed on the applicant no
15 longer appeared necessary in order to achieve the legitimate aim
16 pursued."
17 And if you can now turn to paragraph 52, which is the ultimate
18 finding the Court is making on Article 10, it says:
19 "Having regard to the particular circumstances of the case, the
20 Court concludes that in being convicted and sentenced to a fine,
21 Mr. Weber was subjected to an interference with the exercise of his right
22 to freedom of expression which was not 'necessary in a democratic
23 society' for achieving the legitimate aim pursued."
24 Now, Mr. Joinet, can you tell me whether that's an example or an
25 illustration of a court of law applying the principle of proportionality
Page 366
1 in the context of freedom of expression and the breach of judicial
2 confidentiality? Is that one example?
3 A. I would say that it's a very clinical case, because it says that
4 before that date, the principle of proportionality was relevant. But from
5 the 2nd of March, given that the facts were made public, there would not
6 be any question of proportionality, and this is the very reason why
7 paragraph 52 states that it is no longer necessary in a democratic
8 society. Before it was; after that, it is no longer relevant. It is a
9 very clinical case, so to say, of the fundamental role of the
10 proportionality principle, especially when dealing with restrictions
11 within the scope of human rights.
12 Q. Now, do you recall being asked questions by the Prosecutor as to
13 whether you were aware of some changes in international law that the
14 Prosecutor suggested to you had occurred since 1991, when you published
15 your report on freedom of expression. Do you recall those questions of
16 my friend?
17 A. Yes. I didn't always capture the context, but I remember that
18 they were asked, yes.
19 Q. Well, I would like to show you a recent decision on that point,
20 and that's dated the 12th of November of 2007. And you can find it in
21 the bundle in front of you under tab 4, for the French version, and tab 3
22 for the English. Again, Mr. Joinet, this is a judgement from the
23 European Court of Human Rights. It's the case of Mr. Dupuis and others
24 versus France
25 A. Yes, I can.
Page 367
1 Q. And perhaps, as a matter of general background - I think there's
2 no dispute about that - this is a case that concerns two journalists,
3 Mr. Dupuis and Mr. Pontaut, who published a book called "Les Oreilles du
4 President." Are you familiar with this book, Mr. Joinet?
5 A. Yes, I am familiar with this book.
6 Q. And would it be fair to say that what this book is about is a
7 book written by two French journalists who conducted an investigation of
8 a civilians programme orchestrated by the then French President,
9 Mr. Mitterrand, and which they wrote about in their book? Is that more
10 or less the background of this case?
11 A. Yes, it is.
12 Q. And perhaps to expedite things, and if you're familiar with it,
13 is it correct that as part of this case, or if you know, that these two
14 journalists were charged by the French authorities for revealing the
15 content of documents which formed part of a confidential judicial
16 investigation? Are you familiar with that?
17 A. Yes, I am.
18 Q. Are you also familiar with the fact that after they had been
19 charged with an offence under French law, they were convicted by French
20 courts, are you familiar with that, and that their argument based on
21 their freedom of expression was rejected? Are you familiar with that?
22 A. Yes, I can recollect this.
23 Q. Now, can I ask you to turn to paragraph 36 of the judgement that
24 you have in front of you, 36.
25 The Court, in its legal consideration, says this:
Page 368
1 "As a matter of general principle, the necessity 'for any
2 restriction on freedom of expression must be convincingly established.'"
3 And then it goes on to say:
4 "Admittedly, it is in the first place for the national
5 authorities to assess whether there is 'pressing social need for the
6 restriction' and in making their assessment, they enjoy a certain margin
7 of appreciation."
8 Can you see that?
9 A. I need a couple of minutes. Let me read this out. Yes, I can
10 see that.
11 Q. And then the Court went on to say this:
12 "In the present context of the press, the national margin of
13 appreciation is circumscribed by the interest of democratic society in
14 ensuring and maintaining a free press. Similarly, that interest will
15 weigh heavily --"
16 A. [No interpretation].
17 Q. Thirty-six, Mr. Joinet.
18 A. Okay, yes.
19 Q. And then the courts goes on to say:
20 "Similarly, that interest will weigh heavily in the balance in
21 determining, as must be done under paragraph 2 of Article 10, whether the
22 restriction was proportionate to the legitimate aim pursued."
23 Let me stop here for a second, Mr. Joinet.
24 Is this definition or description consistent with your
25 understanding of the principle of proportionality, as you referred to
Page 369
1 following the question of the Prosecutor?
2 A. Yes, absolutely, all the more that I was actually called as a
3 witness during this trial in France
4 Q. I'm grateful for that information, Mr. Joinet. I wasn't aware of
5 it.
6 Can I ask you to turn to paragraph 39 of that document. As you
7 will see, it's the beginning of the section where the Court has applied
8 the law to the facts, if you want, the application to the case. And in
9 the first sentence of paragraph 39, the Court said this:
10 "The Court observes at the outset that the subject of the book
11 was an issue of considerable public interest."
12 Can you see that?
13 A. Yes, I can.
14 Q. And then there's a second consideration at paragraph 40 which the
15 Court applies to its factual consideration. It's the first sentence
16 again, and the Court says this:
17 "The Court reiterates that Article 10(2) of the Convention leaves
18 little scope for restrictions on freedom of expression in the area of
19 political speech or in matters of public interest."
20 Can you see that?
21 A. Yes, I can.
22 Q. And if you can look at another consideration to which the Court
23 turns its mind, it's at paragraph 41, the first sentence, the Court says
24 this:
25 "Not only does the press have the task of imparting such
Page 370
1 information and ideas; the public also has a right to receive them."
2 Can you see that?
3 A. Yes, I can.
4 Q. And then in the same paragraph, the Court refers to what it
5 called the considerable degree of emotion pertaining to this issue.
6 And then if you can turn to paragraph 42, it's the next
7 consideration which the Court took into account in this context to apply
8 the law to the fact. Can you see that the Court is referring to the
9 importance of the media role in the area of criminal justice is very
10 widely recognised? Do you see that?
11 A. Yes, I can.
12 Q. And at the last paragraph, reiterating to some extent the same
13 point, the Court said that:
14 "The public must be able to receive information about the
15 activities of judicial authorities and police services through the media
16 and that journalists must, therefore, be able to report freely on the
17 functioning of the criminal justice system."
18 Do you see that?
19 A. Yes, I can.
20 Q. And the fifth consideration which the Court took into account in
21 the context of its judgement is at paragraph 43, where the Court says
22 that:
23 "Those who exercise freedom of expression, including journalists,
24 undertake 'duties and responsibilities' the scope of which depends on
25 their situation and the technical means they use."
Page 371
1 Do you see that?
2 A. No, I'm not quite sure where it is. It is 43, paragraph 43? Is
3 it at the beginning of paragraph 43?
4 Q. It's paragraph 43, and it's the first sentence.
5 A. Okay, thank you.
6 Q. Can you see that?
7 A. [No interpretation]
8 Q. And then I'll give you a second --
9 A. Yes.
10 Q. Read through paragraph 44, but would it be correct that the
11 other -- one other consideration that the Chamber -- that the Court in
12 this case took into account to apply the principle of proportionality and
13 the necessity of curtailment of the right is the very wide media coverage
14 that was going on about this case, and also the fact, and I quote:
15 " ... that the case was already publicly known that G.M.," that's
16 one of the persons involved in the information provided by the
17 journalist, "had been placed under investigation"?
18 So, I'll give you a few second to read that and ask you whether
19 that's the case or not.
20 A. No, I see very well what you're talking about.
21 Q. And is it correct, Mr. Joinet, that one of the consideration of
22 the European Court of Human Right in that context was, in fact, the very
23 wide media coverage of the case in question; is that correct?
24 A. Yes, it is.
25 Q. Can I ask you to look at the very last sentence in that
Page 372
1 paragraph, Mr. Joinet? It says this:
2 "In those circumstances, the protection of the information on
3 account of its confidentiality did not constitute an overriding
4 requirement."
5 Do you see that?
6 A. Yes, I do, and we could actually say there's "no longer
7 constitute."
8 Q. And then you'll see there's another finding of the Court in the
9 context of the application of this principle in this context. It says
10 this, and it's paragraph 45, Mr. Joinet:
11 "In this connection, it is noteworthy that, while the applicant's
12 conviction for the offence of handling was based on the reproduction and
13 use in their book of documents which had come from the investigation file
14 and which, accordingly, were found to have been communicated in breach of
15 the secrecy of the judicial investigation or in breach of professional
16 confidence, that conviction inevitably concerned the disclosure of
17 information."
18 And it goes on to say:
19 "It is open to question, however, whether there was still any
20 need to prevent disclosure of information that was already at least
21 partly available to the public."
22 Can you see that? And they go on to cite a few cases. And
23 then --
24 A. Yes, and I'm actually aware of some of those cases that are
25 quoted.
Page 373
1 Q. And then it goes on to say:
2 " ... and might already have been known to a large number of
3 people, having regard to the media coverage of the case, on accounts of
4 the facts and the celebrity of many of the victims of the telephone
5 tapping in question."
6 Can you see that?
7 A. [No interpretation]
8 Q. And then it goes on at paragraph 46 to say this:
9 "The Court further considers that it is necessary to take the
10 greatest care in assessing the need, in a democratic society, to punish
11 journalists for using information obtained through a breach of the
12 secrecy of an investigation, or a breach of professional confidence, when
13 those journalists are contributing to a public debate of such importance
14 and are thereby playing their role as 'watch-dogs' of democracy."
15 Can you see that?
16 A. No, I don't quite see where it is. Is it paragraph 47?
17 Q. Paragraph 46, the first sentence.
18 A. 46, sorry.
19 Q. It's my fault.
20 A. Yes, I can see that.
21 Q. And then if you look at paragraph 48, the Court considers what it
22 called the admittedly fairly moderate fine that was imposed on the
23 applicants, and the chilling effect that an interference with the freedom
24 of expression could have on the exercise of freedom. And then at
25 paragraph 49, it concludes as follows:
Page 374
1 "In conclusion, the Court considers that the judgement against
2 the applicant constituted a disproportionate interference with their
3 right to freedom of expression and that it was, therefore, not necessary
4 in a democratic society."
5 Can you see that?
6 A. Yes, I can see that.
7 Q. And perhaps I'll ask you the same question again. Would that be
8 an example, among others, of what you understand the principle of
9 proportionality to mean and how it's being applied by courts and
10 tribunals around at least Europe
11 correct?
12 A. Yes, it is a clear-cut case, especially for paragraph 48. It
13 shows that we risk self-censorship if there are too many limitations or
14 if it is disproportionate compared to the actions. Self-censorship of
15 journalists, that is.
16 Q. Thank you. I'd like to turn to another document that you were
17 shown a while ago, just shortly, by my friend the Prosecutor. It's under
18 tab 79 of the Defence binder yesterday. Perhaps I don't have to show you
19 the document, to expedite things. It's the joint declaration of the UN
20 special rapporteur on freedom of opinion and expression, the OSCE
21 representative, and freedom of the media. And Mr. MacFarlane was good
22 enough to read two of the principles that are stated in this document,
23 and he asked you questions about possible exception to reporting on
24 ongoing legal proceedings. And you confirmed or you said that those two
25 exceptions were fair trial of an accused and presumption of innocence.
Page 375
1 Do you recall that?
2 A. I do not have the document before me, but I remember that it was
3 the case. But I did not know of the nature of this document. I don't
4 know whether it was a press release or whether it was a document
5 published before a relevant body.
6 Q. May I ask you to focus on the -- it's the first bullet point at
7 the top of the page that you have in front of you, and if I can just give
8 you a few seconds to read it. Just the first bullet point on the top of
9 this page.
10 A. “No restrictions”, does it start with those words?
11 Q. Yes. Do you recall indicating to my colleague earlier that in
12 conformity with what this principle state, there's two recognised type of
13 restriction to the freedom of expression in this context, and that's,
14 one, the fair situation, fair trial for the accused, or a situation where
15 the presumption of innocence of an accused is at stake? Do you recall
16 saying that?
17 A. Yes. I even pointed out as long as the proceedings are not
18 finished, this was the rule.
19 Q. And do you recall adding also that one of the situation in which
20 proceedings come to an end is where the accused dies? Do you recall
21 saying that?
22 A. Yes. There are three courses; a sentence that is final, statutes
23 of limitations, or death.
24 Q. And were you aware of the fact that at the time when Ms. Hartmann
25 published her book and article which formed the basis of these
Page 376
1 proceedings, the accused, in relation to which decisions were rendered,
2 had died? Are you aware of that fact?
3 A. You mean that Mr. Milosevic had died? Well, yes, I think that we
4 all got to know that a few minutes after he died.
5 Q. And are you aware that by an order of the 14th of March of 2006,
6 the Tribunal issued an order terminating the proceedings in the Milosevic
7 case? Are you aware of that order?
8 A. Yes, I did. This was a consequence of his death.
9 Q. Now, I'd like to ask you just to comment briefly. You were shown
10 another document by the Prosecution.
11 Your Honour, it's under tab 80, 8-0, of the binder. It's the
12 council of your recommendation of 10 July 2003.
13 And I don't think I need to show you the document unless you need
14 it. I will simply read two -- I'm grateful to the Registry. Thank you
15 very much.
16 I will simply ask you, Mr. Joinet, to focus on the first page of
17 this document, and I'll ask you first to look at what I believe to be the
18 fourth paragraph in that document, and I will read them to you. It says
19 this:
20 "Recalling that the media have the right to inform the public,
21 due to the right of the public to receive information, including
22 information on matters of public concern under Article 10 of the
23 Convention and that they have a professional duty to do so."
24 Can you --
25 A. My apologies. I do not have the paragraph in --
Page 377
1 JUDGE MOLOTO: I can't find this paragraph.
2 MR. METTRAUX: Well, Your Honour, it should be under tab, we
3 believe, 79.
4 JUDGE MOLOTO: Well, tab 79, fourth paragraph, talks of
5 condemning.
6 MR. METTRAUX: I'm sorry, Your Honour. It should be under
7 tab 80, and you should have -- it should be under tab -- well,
8 Your Honour, we have a different document. I'll just put the
9 proposition, since Your Honour don't have it in front of you, and I'll
10 put it for the record.
11 Q. Mr. Joinet, this is a Council of Europe recommendation, 2003/13,
12 of the Committee of Ministers to member states on the provision of
13 information through the media in relation to criminal proceedings, and
14 it's dated the 10 of July of 2003. It's the Committee of Ministers of
15 the Council of Europe
16 will read out to you two passages from that, and I will ask for your
17 opinion on those.
18 The first statement says this:
19 "Recalling that the media have the right to inform the public,
20 due to the right of the public to receive information, including
21 information --"
22 JUDGE MOLOTO: So sorry, Mr. Mettraux. Judge Guney wants to
23 intervene.
24 JUDGE GUNEY: [Interpretation] Before you read this out, could you
25 give us the reference again, please. Thank you.
Page 378
1 MR. METTRAUX: The reference is a recommendation Rec, R-e-c,
2 (2003) 13, 1-3, of the Committee of Ministers to member states on the
3 provision of information through the media in relation to criminal
4 proceedings.
5 JUDGE MOLOTO: Can you tell us the tab where to find that?
6 MR. METTRAUX: We believe that -- we believe, Your Honour, that
7 the -- we believe that the wrong document was placed in the binder,
8 Your Honour, by our mistake, obviously. I will just read the statement.
9 It's the declaration that was put in the binder, and this is the
10 recommendation that relates to the declaration.
11 Q. Mr. Joinet, in this document, the Council of Europe, the
12 Committee of Ministers, says this:
13 "Recalling that the media have the right to inform the public,
14 due to the right of the public to receive information, including
15 information on matters of public concern under Article 10 of the
16 Convention, and that they have a professional duty to do so."
17 Now, let me ask you this: Is this statement of principle by the
18 Committee of Ministers of the Council of Europe consistent with the
19 position of the subcommission at the time when you worked for that body?
20 A. Yes. The right to receive is always linked to the obligation to
21 provide information.
22 Q. Then there's the second and last passage that I want to read to
23 you. It's two paragraphs down. It says this:
24 "Stressing the importance of the media reporting in informing the
25 public on criminal proceedings, making the deterrent function of criminal
Page 379
1 law visible, as well as in ensuring public scrutiny of the functioning of
2 the criminal justice system."
3 Again, Mr. Joinet, I have the same question for you. Is this
4 position of the Committee of Ministers of the Council of Europe
5 consistent with the position of the Subcommission of the United Nations
6 on Human Rights at the time when you worked for that body?
7 A. Yes.
8 MR. METTRAUX: Your Honour, that is the end of the questions in
9 re-examination. There is only two issues outstanding, and we will
10 propose to follow the same course than with the previous witness. And
11 I think we've agreed with Mr. MacFarlane that as far as documents are
12 concerned that have been shown to this witness, he has no objection to
13 their being tendered from the Bar table, so we will do that in due
14 course. And the same process has been agreed upon as far as questions
15 are concerned from the amicus.
16 I'm grateful to you, Mr. Joinet.
17 JUDGE MOLOTO: Thank you so much for coming to testify at the
18 Tribunal in this matter for Mr. Mettraux.
19 This brings us to the end of your testimony. You are now
20 excused, you may stand down, and please travel well back home.
21 THE WITNESS: [Interpretation] Thank you very much.
22 JUDGE MOLOTO: Thank you.
23 [The witness withdrew]
24 JUDGE MOLOTO: Mr. Mettraux.
25 MR. METTRAUX: Thank you, Your Honour.
Page 380
1 We will call our next witness, Your Honour. It's
2 Ms. Natasa Kandic.
3 And we may also indicate to the Chamber, as we have informed VWS,
4 the Registry, and our colleague from the Prosecution, we will not call
5 the third-and-last witness that was listed up to this point, Your Honour.
6 JUDGE MOLOTO: Is the court usher calling the witness or is he
7 taking the previous witness out? And where is the witness being called
8 from?
9 [The witness entered court]
10 JUDGE MOLOTO: Good morning, ma'am.
11 THE WITNESS: I don't speak French. I will speak in Serbian.
12 MR. METTRAUX: In B/C/S, please.
13 JUDGE MOLOTO: Good morning, ma'am.
14 THE WITNESS: Good morning.
15 JUDGE MOLOTO: Will you please make the declaration.
16 THE WITNESS: [Interpretation] I solemnly declare that I will
17 speak the truth, the whole truth, and nothing but the truth.
18 WITNESS: NATASA KANDIC
19 [The witness answered through interpreter]
20 JUDGE MOLOTO: Thank you. You may be seated.
21 Yes, Mr. Mettraux.
22 MR. METTRAUX: Thank you, Your Honour.
23 Examination by Mr. Mettraux:
24 Q. Good morning, Ms. Kandic. My name is Guenal Mettraux. I'm
25 appearing on behalf of Ms. Hartmann.
Page 381
1 Before we start, may I ensure that you're receiving translation
2 in Serbian.
3 A. [In English] Yes. [Interpretation] Yes.
4 Q. Thank you. Can you please state your name and date of birth for
5 the transcript, please?
6 A. Natasa Kandic. 16th December 1946.
7 Q. And can you tell what is your current professional occupation?
8 A. My occupation is in the field of human rights, especially various
9 projects dedicated to the establishment of transition justice in the
10 states of the former Yugoslavia
11 Q. And in that context, are you heading or directing any particular
12 body or centre?
13 A. Yes. I am the founder and the director of the Humanitarian Law
14 Centre, an organisation which documents war crimes and deals with
15 transition justice.
16 Q. And briefly, because there are many, but in your capacity as
17 founder and director of this centre, and for your various activities for
18 human rights, are you the recipient of any prize or awards?
19 A. Yes. I received various awards, the last one two days ago. It
20 was the award of a local organisation in Kosovo.
21 Q. And I won't go into the detail of those, but have you, for
22 instance, been listed by "Time" magazine as one of the heroes of 2003,
23 and one of the past 60 years, of 2007? Is that an accolade that you
24 received?
25 A. Yes, it is.
Page 382
1 MR. METTRAUX: Your Honours, simply for the record, the
2 curriculum vitae or at least a part of it is available under tab 82 of
3 the binder, and we won't -- there's no need, I believe, to go any further
4 into the detail of that. We will tender this.
5 Q. Ms. Kandic, is your centre, the Humanitarian Law Centre, in any
6 way related to this Tribunal, its mandate, or any of its organs?
7 A. Yes. We were -- in fact, I was the first person, the first human
8 rights activist, from the states of the former Yugoslavia that the OTP
9 invited in August 1994 to help them in gathering relevant information, as
10 they were only beginning their work on the first investigations at the
11 time. And just after that, a few months later, perhaps, we at the
12 Humanitarian Law Centre arranged, prepared, and translated into English
13 very valuable documentation concerning massive violations of human rights
14 in Bosnia and Herzegovina. And on many occasions later, we submitted to
15 the Office of the Prosecutor our own documentation and shared with them
16 our contacts with the witnesses. We helped in providing the witnesses
17 and finding witnesses, and we maintained very, very close cooperation in
18 our primary field of activity, which is the documentation of war crimes.
19 JUDGE MOLOTO: If you don't mind, Mr. Mettraux, just one little
20 question.
21 When was the Humanitarian Law Centre founded, madam?
22 THE WITNESS: [Interpretation] In November 2002 -- sorry, 1992.
23 JUDGE MOLOTO: Thank you, Mr. Mettraux.
24 MR. METTRAUX: Thank you, Your Honour.
25 THE WITNESS: [Interpretation] November 1992.
Page 383
1 MR. METTRAUX:
2 Q. Thank you, Ms. Kandic. Can you tell whether your organisation,
3 the Humanitarian Law Centre, also took any step to make the work of this
4 Tribunal and its proceeding better known in the region, that is, in the
5 countries that form the former Yugoslavia
6 steps?
7 A. Yes, we did. We organised four large conferences where we
8 presented the judgements of the Tribunal in The Hague, precisely because
9 we believed it was very important to promote the judicial truth as
10 established by formal judgements. We organised gatherings, always
11 attended by more than 150 participants, about judgements in the Brcko
12 case, the Srebrenica case, the Foca case, the Celebici case; and those
13 were the only conferences in Serbia
14 judgements was discussed in great detail. And we invited, also, the
15 witnesses to share with us their point of view on the establishment of
16 judicial truth.
17 Q. And could you explain, perhaps shortly, why it's important for
18 your centre to participate in this outreach effort of the work of this
19 Tribunal?
20 A. Because the Humanitarian Law Centre, as well as other human
21 rights organisations, supported vigorously the work of this Tribunal
22 because this was the first such international institution to stop
23 violence and war crimes by starting war crimes trials, and after that,
24 nobody could count on impunity. We believed that our cooperation with
25 the ICTY, and primarily with the Office of the Prosecutor, was important
Page 384
1 precisely in terms of resisting the culture of impunity which had been
2 dominant for years in all the states of the former Yugoslavia.
3 Q. Well, let me turn for a second -- we'll come back to some of
4 those issues in a moment, but let me now turn back to something
5 different, your relationship with Ms. Hartmann, the accused in this case.
6 Can you recall approximately where and when you first met
7 Ms. Hartmann, and, if so, in what circumstances?
8 A. Back in the 1990s, Florence Hartmann was a very well-known
9 journalist in the states of the former Yugoslavia, especially after the
10 outbreak of armed conflicts. She was recognised as a journalist who was
11 everywhere where human rights were being violated and as someone who was
12 reporting in a very objective and truthful manner.
13 In those years, in 1991 and 1992, we were only beginning to deal
14 with human rights, and we learned about violations of human rights for
15 the first time, on many occasions, from the reports of Florence Hartmann.
16 I remember very well the time when she was thrown out of Serbia
17 to leave the country, and that was the time when human rights
18 organisations and I, personally, reacted very violently against that.
19 But it was a time also when the voices of human rights activists did not
20 matter at all, and Florence Hartmann and other important and good
21 journalists had to leave Serbia
22 Q. Just following up on what you said of Ms. Hartmann being thrown
23 out of Serbia
24 what reason?
25 A. She had to leave Serbia
Page 385
1 authorities. At that time, the authorities were, in fact, a whole system
2 headed by Slobodan Milosevic, but I believe that particular decision was
3 taken by the Ministry of the Interior. She had to leave the country
4 because of her alleged biased reporting and allegedly creating a climate
5 of intimidation for many in Serbia
6 her job professionally.
7 Q. And do you know what the real reasons for Ms. Hartmann to be
8 thrown out of the country by Mr. Milosevic were?
9 A. I can't remember precisely, but it was my impression, and that
10 impression was shared by many, namely, that the problem was that
11 Ms. Hartmann travelled from Belgrade
12 reporting, we received some information about what was going on in
13 Croatia
14 places where in 1991 and early 1992 grave war crimes were committed.
15 That is the perception we have in human rights organisation, that that
16 was the main reason; namely, to stop the flow of information.
17 Q. And after the war ended in the former Yugoslavia, have you
18 continued to see and entertain relations with Ms. Hartmann?
19 A. I always followed her work, and she visited frequently, mostly in
20 Bosnia and Herzegovina. She was the kind of journalist who was very
21 attached to the region of the former Yugoslavia. She's a great
22 connoisseur of the region, and later she became the spokesperson for the
23 Office of the Prosecutor. And for me and for all the other human rights
24 activists, it was important, because we believed it was good for a person
25 like that to occupy the position of spokesperson, a person who had great
Page 386
1 knowledge, a person who had been in countless locations and places of
2 grave war crimes, a person who does not need additional education about
3 what had happened. She had direct experience in the field.
4 Q. Is Ms. Hartmann in any way related to the Humanitarian Law Centre
5 that you're heading?
6 A. Yes. Last year, in 2008, we elected a new board of management,
7 and since she was no longer working with the ICTY, it seemed to me that
8 it was a good opportunity to approach her and invite her to become a
9 member of the board of management of the Humanitarian Law Centre, because
10 it would have been contrary to the rules of the Humanitarian Law Centre
11 to do it while she was the spokesperson of the ICTY. As she was now a
12 freelancer, I invited her. And beginning with 2008, she is a member of
13 our board.
14 Q. And was her reputation, whether professional or personal, to the
15 extent you can testify to either of those, of relevance to your decision
16 to invite her to become a member of the board?
17 A. Certainly. I have known Florence Hartmann since the 1990s.
18 She's a journalist, a reporter, from whom I learned a lot.
19 When I started working on war crimes in 1991, it was extremely
20 important to me to know which journalists were objective, which
21 journalists actually travel and eye-witnessed war crimes, whose
22 information I can take as a reliable starting point in our investigations
23 and inquiries.
24 In all these years, it never happened that something
25 Florence Hartmann wrote turned out to be untrue or objectionable in any
Page 387
1 professional sense.
2 Q. And when you learnt of the indictment before this Tribunal of
3 Ms. Hartmann for an alleged contempt of court, did you consider taking
4 her off the board, did you consider that you should do so, the board of
5 the centre?
6 A. Well, the situation was bizarre. I did not learn about this
7 indictment from her, and that did not really surprise me, because I've
8 known her for years and she's not that kind of person. She's not the
9 kind of person who would discuss her own problems or say that something
10 is hard for her or difficult. I read about it in the newspapers.
11 Her first reaction, when she eventually called me up, was to ask
12 if it was all right for her to continue to be a member of the executive
13 board of the Humanitarian Law Centre. I was taken aback by the question
14 and even a little offended. I wondered, could she possibly be thinking
15 that the most important thing for me, when deciding to invite her to
16 become a member of the board, was that she had been a spokesperson of the
17 OTP, but that was, in fact -- that arose, in fact, out of her both human
18 and professional subtlety. She was prepared to go to great lengths to
19 avoid any embarrassment to anyone else.
20 JUDGE MOLOTO: Mr. Mettraux, is that a convenient moment?
21 MR. METTRAUX: Certainly, Your Honour.
22 JUDGE MOLOTO: We'll take a break and come back at half past
23 12.00. Court adjourned.
24 --- Recess taken at 12.03 p.m.
25 --- On resuming at 12.34 p.m.
Page 388
1 JUDGE MOLOTO: Yes, Mr. Mettraux.
2 MR. METTRAUX: Thank you, Your Honour.
3 Could the usher please assist and give the binder that is here to
4 the witness. Thank you very much. Your Honours, this is binder
5 number 3.
6 Q. Ms. Kandic, could I ask you, please, to turn to what is tab 83 of
7 this binder, number 83.
8 MR. MacFARLANE: 53?
9 MR. METTRAUX: 83.
10 Q. Do you have in front of you, Ms. Kandic, a press release from the
11 Humanitarian Law Centre, dated the 3rd of November, 2008, in front of
12 you?
13 A. Yes, yes, I can see it.
14 Q. Did you have any part in preparing this document, Ms. Kandic?
15 And if so, what part?
16 A. Yes, I participated in drafting this document, together with
17 other listed organisations that are the signatories of this document.
18 Q. And let me read, perhaps quickly, the first paragraph of that
19 document. It says this:
20 "Concerning the trial of Florence Hartmann conducted before
21 The Hague Tribunal for the alleged publication of confidential
22 Appeals Chamber decisions in the Slobodan Milosevic case, human rights
23 organisations from the successor states to the former Yugoslavia would
24 like to draw attention to the fact that the content of these decisions
25 was the subject of many press reports and public debates after the
Page 389
1 International Court of Justice delivered its judgement in February 2007
2 in the case BiH versus Serbia
3 why Ms. Hartmann has been singled out by The Hague Judges."
4 Now, you indicate in that paragraph that there were many press
5 report and public debate. Can you tell, in very general terms, what
6 those related to?
7 A. Yes, that's correct. All of us, I and other human rights
8 activists, were astonished by the indictment because we discussed the
9 contents of these controversial decisions for years before that,
10 especially intensively during the establishment of the International
11 Court of Justice, because it was common knowledge that these transcripts
12 and records of the Supreme Defence Council exist and certain sections of
13 these transcripts were redacted. It was a constant topic, what these
14 transcripts were about, what was hidden in them, and there was no
15 opposition by the authorities to what we, the human rights organisations,
16 were saying; namely, that those transcripts contained those parts of the
17 debates and deliberations on the Supreme Defence Council that concerned
18 Srebrenica, primarily, and the involvement of the police and army forces
19 of Serbia
20 This is not true, that's not what these redacted parts of the transcripts
21 contain. Nobody ever called into question, back in our country, that the
22 Government of Serbia
23 decision to protect these redacted parts of the transcript for that
24 reason. What was at issue was the contents of the transcripts. It
25 seemed completely illogical to us that one person should be singled out
Page 390
1 for discussing it.
2 I remember that this book by Florence Hartmann appeared in press
3 reports after so many other discussions in the media. We didn't -- we
4 couldn't understand why Florence Hartmann was being singled out, because
5 we were discussing openly these things in the press. There was even an
6 expert seminar in our region that was organised after the judgement of
7 the International Court of Justice in June and July 2007. We couldn't
8 understand the standard by which this one person was being singled out,
9 while all of us were being allowed to debate the contents of the said
10 decisions.
11 That brought us activists in the field of human rights in a
12 strange situation, and we were discussing the transparency of the
13 proceedings in the Milosevic case and other cases, why such a decision to
14 hide these parts was taken in the first place, and why this standard of
15 national security was being applied in that way. We discussed this
16 national security interests not only in Serbia, but in the whole region.
17 We discussed it many times, and we always faced the same dilemma; whether
18 the acceptance of this standard really contributed to establishing the
19 facts of these events; whether it was really in conformity with the
20 obligation of the Court to take into account all the relevant facts that
21 could help us find out what really happened; why all these things could
22 not be public. And we believed that there should be as little secrecy as
23 possible, especially in war crimes trials.
24 The ICTY was in a situation for the first time to help uncover
25 the truth about what happened and why it happened, and we all expected
Page 391
1 from this Court to put it out in the public eye and to help us in the
2 region gain knowledge of these facts and to start thinking about what
3 happened in the past; and, with the benefit of these facts, to resist and
4 defy the culture of impunity, and use these facts to establish personal
5 liability and responsibility, but also the responsibility of the
6 authorities and the state.
7 And it seemed to us that this was an inadequate standard in the
8 context of war crimes trials but also in trials aiming to establish the
9 responsibility of states. It seemed to us completely inadequate from the
10 viewpoint of human rights, and it did not tally with the way we thought
11 courts should act in establishing personal responsibility and state
12 responsibility. And I still believe that this criterion, this standard,
13 should be widely debated and that lawyers' organisations and human rights
14 organisations should be allowed to openly discuss this; namely, whether
15 this standard is in keeping with the need to establish facts and to
16 present them publicly in order - how shall I put it? - to create a
17 different climate in the states that had been engulfed in the conflict.
18 Also, we in the human rights organisations thought that the
19 courts, whether criminal courts and criminal cases or the International
20 Court of Justice, should be careful, when taking decisions, to be aware
21 that if such decisions have to find a balance between national security
22 and the need to find justice, there is a factor of the victims and their
23 expectations. They expect courts to take decisions that will satisfy
24 justice, and by taking a different kind of decisions, they help the
25 states which are prepared to commit the most terrible crimes in their own
Page 392
1 interests. And then --
2 Q. Ms. Kandic, we will come to that in a moment. If you can just
3 focus on the question. You've covered a lot of ground, but I'll ask you
4 to try to answer the question as precisely as you can, since we have
5 little time.
6 But can you indicate to the Chamber whether the information that
7 you have indicated you had, you, the Humanitarian Law Centre and other
8 organisations, about the redaction that had been ordered on to the
9 records of the SDC
10 of Ms. Hartmann book or only after?
11 A. Yes, yes, indeed. I, personally, and other human rights
12 activists, had been aware of that information long before the book was
13 published. It was a topic in the media, it was widely discussed in
14 public. Representatives of the state of Serbia, even those who were in
15 the Defence teams, said that the state had to be protected, that national
16 security of the state is of the utmost importance, and they publicly
17 advocated the importance of concealing some information.
18 On the other hand, we felt that the establishment and the
19 disclosure of facts was very important for the establishment of justice
20 in the states of the former Yugoslavia
21 impermissible, and this was a topic that was present in public, at
22 various meetings. It wasn't something we discovered when the book
23 appeared. For us, the book did not discover anything new, and it wasn't
24 something that we started discussing when the book appeared.
25 Q. Let me show you a few examples. Perhaps we will go a little bit
Page 393
1 faster on this.
2 Can you look under tab 84 bis of your binder in front of you.
3 Under that tab, you will find a "New York Times" article dated 9th of
4 April, 2007, written by Marlise Simons, and it's called "Genocide Court
5 Ruled for Serbia
6 Do you have that document?
7 A. Yes, yes, I see.
8 Q. And can you tell me, have you been interviewed for purposes of
9 this article?
10 A. Yes, I did talk to the journalist of the "New York Times," and as
11 you can see this was in April 2007, which by far preceded the publication
12 of Florence Hartmann's book, and the topic was the transcripts and
13 minutes of the supreme Defence Council. And I said much more on that
14 occasion than appears in the text. I told the journalist to what
15 extent --
16 Q. Ms. Kandic, Ms. Kandic, just a second. I will come to the part
17 that pertains to your interview. Let me take this article one step at a
18 time.
19 If you look at the first two paragraph, it discuss that in the
20 spring of 2003, during the trial of Mr. Milosevic, hundreds of documents
21 arrived at the Tribunal. Then it refers, in the next paragraph, to a
22 cache of documents. And then in the third paragraph, it says that
23 Serbia
24 keep the parts of the archives out of the public eye. And it goes on to
25 say:
Page 394
1 "Citing national security, its lawyers," that's Serbia
2 "blacked out many sensitive - those who have seen them saying
3 incriminating - pages ..."
4 And then in the next paragraph, it refers to lawyers and others
5 who were involved in Serbia
6 A. Yes.
7 Q. If you turn now to the next page of that article from "The New
8 York Times" and look at a paragraph towards the end of the page, which
9 starts with the words: "However, lawyer who have seen the
10 documents ...," it's three paragraphs from the bottom. Can you see that?
11 A. Yes, I do, I see it.
12 Q. And what "The New York Times" journalist was saying in that piece
13 is that:
14 "Lawyers who have seen the archives and further secret personnel
15 files say they address Serbia
16 revealing in new and vivid detail how Belgrade financed and supplied the
17 war in Bosnia
18 after 1992, remained virtually an extension of the Yugoslav Army. They
19 said the archives showed in verbatim records and summaries of the
20 meetings that Serbian forces, including secret police, played a role in
21 the take-over of Srebrenica and in the preparation of the massacre
22 there."
23 From what I've read to you, does it appear that the journalist of
24 the "New York Times" in April of 2007 is discussing what she believes to
25 be the content of the SDC
Page 395
1 passage?
2 A. In this passage, yes, it does refer to the contents of those
3 minutes. And I recall that talking to this journalist, though this is
4 not stated here, I mentioned that in the case of the Skorpions, this is a
5 case being tried before the national court for war crimes in Belgrade
6 that as a representative of the victim, I was able to get hold of many
7 documents which confirm what the journalist says in this paragraph.
8 There were documents signed by the minister of police of the
9 Bosnian Serbs or, rather, Republika Srpska, from which it can be seen
10 that in July 1995, during the Srebrenica operation, not only did members
11 of the Skorpions take part, but also other members of the Serbian police
12 force, so that for me this story as to whether Serbian regular forces,
13 that is, from Serbia
14 so-called Srebrenica operation did not provoke any dilemma at all in my
15 mind.
16 Q. Ms. Kandic, just a second. Let me ask you the questions, and try
17 to focus on those.
18 These discussions, such as the one I've just read to you from
19 "The New York Times" article, were those matters that were also discussed
20 in the public, generally, and/or among human rights organisations in the
21 Balkan and elsewhere?
22 A. Yes, indeed. In the media, in gatherings of human rights
23 organisations, this was discussed quite openly. On the one hand, we had
24 human rights organisations, who believed that the Government of Serbia
25 must take a decision to disclose the minutes of the Supreme Defence
Page 396
1 Council and that this concealment of information and facts must be put an
2 end to. And it was general knowledge that regular forces of Serbia
3 taken part in Srebrenica. On the other hand --
4 Q. One thing at a time. The next question, Ms. Kandic: Those
5 public discussions that you've said took place, can you specify, did they
6 take place before the publication of the book of Ms. Hartmann, after the
7 publication of the book of Ms. Hartmann, or before and after? Can you
8 recall that?
9 A. They started long before the publication of the book. They
10 started -- I think the discussions over this topic appeared with greater
11 frequency thanks to an inquiry by the London Institute for War Reporting,
12 and it was then that this became a very important issue in the community
13 of human rights organisations. We devoted a great deal of attention to
14 this issue to demonstrate that there was absolutely no doubt in our minds
15 as to the content of those documents, and that we demanded that they be
16 disclosed; therefore, long before the publication of the book. But
17 naturally from 2005, this has gone on to the present.
18 Q. Let me show you another document. You've just referred to an
19 inquiry by the London Institute for War Reporting, which is also known as
20 IWPR. It's under tab 84 ter of your binder. I believe that's the next
21 document.
22 You should have an article from IWPR of the 17th of May of 2005,
23 and it's entitled:
24 "Special Investigation: Justice at What Price. Allowing
25 Belgrade
Page 397
1 could have grave repercussions for justice and reconciliation." Just
2 briefly, can you say whether that's the article to which you refer?
3 A. Yes, that was the article I referred to.
4 Q. Then if I can just draw your attention to the first paragraph of
5 that article, it says this:
6 "The Hague Tribunal allowed Belgrade to present key documents in
7 the long-running trial of Slobodan Milosevic on condition that they were
8 kept under wraps, delivering a blow to those who want justice to be seen
9 to be done."
10 Can you see that?
11 A. Yes, yes.
12 Q. And if you can turn to the third page, please, of that document.
13 And if you look at -- I think it's the fourth paragraph on that page, it
14 starts with the words: "The document which ...," and I will read it out
15 for the transcript. It says:
16 "The documents which now enjoy protected status at the Tribunal
17 are known to contain references to the regime's involvement in the
18 Bosnian war. The most important papers recount the activities of the
19 then Yugoslav state's highest political and military body, the Supreme
20 Defence Council, SDC
21 And if you can now turn to the next page, please, you will see in
22 the middle of the page or so there's a subtitle saying "Belgrade
23 Damage-Limitation Exercise." And then the first paragraph refers to
24 Rule 54 bis of what is the Rules of Procedure and Evidence of this
25 Tribunal, and the article says or claims:
Page 398
1 "It is on the basis of this rule that the Belgrade government
2 applied for protection of the full SDC archive, stating in a number of
3 sessions held before Hague Tribunal Judges that publication would
4 endanger the interests of Serbia
5 Did you have in your possession, and I mean by "you," your centre
6 in particular, but the human rights community and the victim community in
7 Serbia
8 available to you at the time and were you discussing it publicly?
9 A. Yes. This inquiry and this text dates back to May 2005, as I can
10 recollect, and I also spoke to this investigator of the Institute for War
11 Reporting, and this was a topic that was discussed within the human
12 rights community. And it was then that we became fully conscious of what
13 was happening and what Serbia
14 of the Appeals Chamber, in a situation when it is extremely difficult to
15 establish the truth as to who participated and who is responsible for the
16 events in Srebrenica in July 1995.
17 Q. Well, if you go on reading the article, you will see there's a --
18 it says that the protective measures had been asked to protect Serbia
19 relation to the ICJ proceedings, and at the bottom of the page it says:
20 "Answering the IWPR's question whether the ICJ case was the main
21 reason why his government insisted on keeping the documents protected,
22 the man then in overall charge of negotiations with the Tribunal, former
23 Serbian and Montenegrin Foreign Minister Goran Svilanovic, answered
24 'absolutely correct.'"
25 Let me ask you this. In your various contacts with Serbian
Page 399
1 officials, whether it be Mr. Svilanovic or anyone else, did they ever
2 seek to hide the fact that they had, in fact, sold and obtained
3 protective measures that we are discussing from this Tribunal?
4 A. No, this wasn't concealed at all. It was even praised. Everyone
5 in Serbia
6 strategy of the new authorities. And when there were criticisms from the
7 human rights activists that, in this way, the state is protecting a
8 criminal state led by Mr. Milosevic, the response from the official side
9 was that the state has to be protected, even Milosevic's state.
10 But I repeat, it was not concealed at all. It was known that the
11 main reason was the forthcoming proceedings in the International Court of
12 Justice and the need for Serbia
13 presented in the court which would show that Srebrenica was carried out
14 with the direct participation of regular formations from Serbia
15 MR. METTRAUX: Your Honours, perhaps to save a bit of time, I
16 also draw your attention to page 7 of this article, which may be of
17 assistance to you.
18 Q. Ms. Kandic, if I can ask you to go to the last page of that
19 document, please. There should be a statement that has been attributed
20 to you. If you look, it starts with the words: "Natasa Kandic," and I
21 will read it out to you. It says:
22 "Natasa Kandic, director of the Humanitarian Law Centre in
23 Belgrade
24 open about the past."
25 And then there is a quote attributed to you. It says:
Page 400
1 "In this case, the government thought that the national interest
2 was to prevent Bosnia
3 truth."
4 Then there's another quote attributed to you. It says this:
5 "But the real national interest is in creating a healthy society
6 in which the Milosevic regime's role in the war is widely known and
7 accepted. This will not happen if important state documents continue to
8 be hidden from public view."
9 Could you explain briefly what you intended to convey with that
10 statement?
11 A. I think that everything is quite clear here. What I believe is
12 that when the government of Serbia
13 of documents could be -- should be protected from the public eye by the
14 tribunal passing such a decision, that this is contrary to the most
15 important demands and requirements of every society after wars, and that
16 is for the society to learn the truth, and that is the only guarantee
17 that such things would not be repeated.
18 Q. You indicated a moment ago that Serbia and then Serbia-Montenegro
19 never sought to hide the fact that they had sought and obtained
20 protective measures from this Tribunal in relation to the SDC records.
21 Did they ever try to hide the fact that these decisions granting the
22 measurements were, for some of them, confidential?
23 A. But this was not an issue. No one from the authorities of Serbia
24 mentioned that those decisions were confidential. It was only after the
25 discussion that we organised in June 2007, after the judgement was
Page 401
1 passed, that is, on the 29th of June, 2007, only then, as the panel
2 included representatives from the Serbian team, Professor Rade Stojanovic
3 and Sasa Obradovic, only then did this lawyer, Sasa Obradovic, mention
4 that those decisions were confidential. On the other hand, the head of
5 the Defence team, Professor Rade Stojanovic, said that he was in favour
6 of the contents of the minutes being disclosed and that he had said that
7 several times. So the main issue was never that the court rulings were
8 confidential, but the discussions always centered on the contents.
9 Q. And by "content," what do you mean? What content or contents?
10 A. I mean the contents, that is, the facts that everyone knew
11 related to the facts and evidence on the involvement of the police and
12 Army of the Republic of Serbia
13 Srebrenica. Of course, the best evidence of this was when, at this panel
14 meeting held in June 2007, the leader of Serbia's Defence team said that
15 they had done everything, including obtaining protective measures for
16 certain documents, so as to defend Serbia
17 had participated in genocide. It was so clear that those documents --
18 or, rather, the request and obtaining of protective measures, that this
19 had helped Serbia
20 the main reason for the request for protective measures.
21 Q. And perhaps just to save time again, Ms. Kandic, can you confirm
22 that this conference, which you've indicated you organised -- and,
23 Your Honour, the excerpt from the record of this conference are available
24 under tab 85 bis. Can you tell me, Ms. Kandic, whether during that
25 conference the representative of Serbia - I think you mentioned
Page 402
1 Mr. Sasa Obradovic and Professor Stojanovic and former ambassador for
2 Serbia
3 conference the existence of these confidential orders granting protective
4 orders to the SDC
5 granted by this Tribunal? Can you just confirm that, yes or no?
6 A. Yes, yes, yes, they spoke about this quite frankly and openly
7 because it was a topic that was widely discussed, and they couldn't just
8 get up and say they knew nothing about it. This was something discussed
9 publicly.
10 Q. Just so we don't have to spend too much time on the document, the
11 Judges and the Prosecutor have this document in front of them, could you
12 say -- we have a record of this conference, and everyone in the courtroom
13 has a copy of it. Could you confirm, is that a verbatim transcript of
14 the discussion that took place during this conference?
15 A. Yes, yes. I also have a book. It is the transcript of the
16 entire discussion, word by word.
17 Q. And is this document public?
18 A. Yes, it is. The book has been published, and all the
19 participants and members of the panel have a copy, as do many others.
20 Q. And did you ever receive a complaint that the content of that
21 document inaccurately reflected what any of the participants had said
22 during that conference?
23 A. No, no, never.
24 MR. METTRAUX: Your Honour, we'll simply refer to tab 85 bis, and
25 we'll tender it at a later stage.
Page 403
1 Q. Ms. Kandic, can you turn, please, to tab 86 of your binder.
2 Ms. Kandic, as you will see, this is an excerpt from the public -- from a
3 public hearing before the International Court of Justice. It's dated the
4 8th of May, 2006, and the passage that you have is at -- starts at
5 page 27, and it is an answer to the question posed by one of the Judges
6 of the ICJ, Judge Simma. And the person speaking is the representative
7 of Serbia
8 Herzegovina
9 At paragraph 55, Ms. Kandic, the representative of Serbia says
10 this:
11 "Madam President, allow me now to turn to another issue - the
12 question posed by Judge Simma in relation to the blackened sections of
13 the documents of the Supreme Defence Council of the Federal Republic
14 Yugoslavia
15 Can you see that?
16 A. Yes.
17 Q. And then just if you continue down the text, in paragraph 56 you
18 will see there's a reference to a letter of the agent of Serbia and
19 Montenegro
20 sentence of that paragraph, the representative of Serbia refers to, I
21 quote:
22 " ... the contents of the redacted parts of the minutes and
23 stenographic notes of the supreme command of our state."
24 Can you see that?
25 A. Which paragraph is that?
Page 404
1 Q. I'm sorry. It's the last sentence of paragraph 56. Do you see
2 it?
3 A. Yes, yes, I do.
4 Q. We'll come back to this page, but if you can turn for a second to
5 the next page, at paragraph 59, please. And in the opening sentence, you
6 will see that he says:
7 "Madam President, with all due respect to this Honourable Court,
8 the representatives of Serbia
9 discuss," and I quote again, "the contents of the redacted sections of
10 the Supreme Defence Council documents at this moment ..."
11 Just interfering a question there, in your view, and perhaps
12 you've said it before, but what was the -- what were the representatives
13 of Serbia
14 it the contents of the SDC
15 in relation to these documents, or anything else?
16 A. I've already said they were protecting the contents. They didn't
17 want the facts and data to be presented which we, from the human rights
18 organisations, publicly expressed doubts as to the contents of those
19 documents, that this related to the involvement and the engagement of the
20 Serbian police and army in the perpetration of the genocide in
21 Srebrenica.
22 MR. METTRAUX: Your Honour, we'll simply refer to the rest of the
23 transcript at a later stage.
24 Could we move into a private session for a moment, Your Honour.
25 JUDGE MOLOTO: May the Chamber please move into private session.
Page 405
1 MR. METTRAUX: And perhaps with the assistance of the usher,
2 there is a document which we would like distributed and, please, not put
3 on the ELMO.
4 [Private session]
5 (redacted)
6 (redacted)
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9 (redacted)
10 (redacted)
11 (redacted)
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6 [Open session]
7 THE REGISTRAR: We are in open session.
8 JUDGE MOLOTO: Thank you.
9 MR. METTRAUX:
10 Q. 20th of April, 2006, record of the ICJ proceedings between Serbia
11 and Bosnia
12 representative of Bosnia and Herzegovina who is addressing the Court, and
13 he's talking about the Supreme Defence Council and the reports thereof or
14 the records thereof. And if you turn at page 41, he's goes on about the
15 same subject.
16 And at page 42, paragraph 43, the representative of Bosnia
17 the following:
18 "Only recently - actually in the midst of the pleadings that took
19 place here before this Court - it," and that would be Serbia and
20 Montenegro
21 confidential decision ordering Serbia and Montenegro
22 documents, including Ratko Mladic's personnel file."
23 Now, I'd like to focus at this stage solely on Mr. Mladic's
24 personnel file. Is that issue or the fact -- the fact that there were
25 resistance on the part of the Serbian government to produce the personnel
Page 410
1 file of Mr. Mladic, known at the time of this proceedings in April of
2 2006, was it in the public domain?
3 A. The public in Serbia
4 of The Hague Tribunal for the personnel file of Ratko Mladic to be
5 produced, but in the media you could hear and read representations by the
6 Serbian authorities that such a file does not exist, that it can't be
7 located, nobody knows where it was, and it was quite clear to the public
8 that Serbia
9 information that Serbia
10 MR. METTRAUX: Your Honour, perhaps to accelerate things, we'll
11 do two things. First, we'll refer to a decision from the Milosevic
12 prosecution case, in any case, dated the 16th of June, 2005. And it's
13 called: "Decision on Prosecution's motion to admit into evidence
14 Ratko Mladic's Yugoslav Army (VJ) personnel certificate." And
15 Your Honour will see that there's a very open and public discussion in
16 that document of that fact.
17 But, Ms. Kandic, we'll go back to tab 84 ter for a second, if I
18 may.
19 Could the Registry assist? 84 ter, and it should be page --
20 Ms. Kandic, page 14 of that document. Unfortunately, there's no number
21 in the version that we've printed, but it would be five pages from the
22 end of the document. So if you can work backwards, it's the fifth page
23 from the end, and there is a subheading called "Selective Memory?"
24 JUDGE GUNEY: [Interpretation] Can you slow down, please. It
25 becomes very difficult to follow you.
Page 411
1 MR. METTRAUX:
2 Q. Do you have it, Ms. Kandic?
3 A. [In English] Yes.
4 Q. It says this: It's the IWPR article, just for the record's sake,
5 IWPR article of 17th May, 2005
6 "There are indication that some other --"
7 JUDGE MOLOTO: Sorry. The document is not paginated, so we --
8 MR. METTRAUX: We understand, Your Honour.
9 JUDGE MOLOTO: We need to get to --
10 MR. METTRAUX: It is five pages from the end, Your Honour, and
11 there is a subheading almost in the middle of the page saying "Selective
12 Memory?"
13 JUDGE MOLOTO: The what page from the end?
14 MR. METTRAUX: If you count five pages from the end, Your Honour.
15 JUDGE MOLOTO: And this is tab 84?
16 MR. METTRAUX: Tab 84, Your Honour, ter.
17 JUDGE MOLOTO: Thank you. You may proceed.
18 MR. METTRAUX: Thank you, Your Honour.
19 Q. Ms. Kandic, I will read it out to you, to expedite things. It
20 says this:
21 "There are indications that some other relevant documents have
22 not been made available and some may have gone missing. One such
23 document appears to suggest that, like his RS Army officer corps,
24 General Mladic, himself, received a salary as if he were a regular member
25 of the Yugoslav military. The Serbian and Montenegrin foreign minister's
Page 412
1 legal counsel chairman, Professor Radoslav Stojanovic, revealed to IWPR
2 in August of 2004 the existence of a secret Yugoslav Army order from 1993
3 awarding Mladic a promotion. It was signed by then Yugoslav president,
4 Zoran Lilic, in his capacity as chairman of the SDC."
5 And if you can turn, please, to the next page, at the top of the
6 next page, the piece goes on to say:
7 "Although the promotion order was leaked to media in Sarajevo
8 media in November 2004, it does not seem to have been sent to the
9 Tribunal under the protective measures deal.
10 "IWPR has obtained a copy of Mladic's personnel file which
11 includes pension information and the dates of promotion orders. The
12 documents show that Mladic received his final promotion on June 16, 1994
13 to the rank of colonel-general. His personnel file substantiates
14 Professor Stojanovic's statement that Mladic remained an officer in the
15 Yugoslav Army long after Belgrade
16 command."
17 And I simply have a very, very short question, Ms. Kandic, in
18 relation to that, is: Were these facts as stated in the article of May
19 2005, were they well known in the public, and in particular within
20 victims and human rights organisations in Serbia and elsewhere in the
21 Balkan?
22 A. We all knew that there had been a 30th Personnel Centre, as it
23 was called, and that it was through this centre that the salaries of all
24 the officers of the Army of Yugoslavia, which later was renamed the Army
25 of Serbia-Montenegro, were paid out, and that applied to all those who
Page 413
1 were assigned to stay on in Bosnia
2 Q. Just a second. We need to, unfortunately because of time
3 restraint, we need to go very fast. Can you tell me whether the
4 information that I've read out to you from the article was widely or
5 publicly available in the public and, in particular, within victims and
6 human rights organisations in Serbia
7 Ms. Hartmann book? Can you confirm that, yes or no?
8 A. Yes, it was known. We all knew, also, of this report by the
9 Institute for War Reporting, and we in the human rights organisations
10 were aware of that. As for the public, it was quite normal to the public
11 in Serbia
12 Yugoslav Army and that the Army of Republika Srpska was part of that Army
13 of Serbia-Montenegro, that is, the Federal Republic of Yugoslavia. There
14 was no dilemma about it. Everybody knew that there would be no Army of
15 Republika Srpska without the Army of Yugoslavia
16 MR. METTRAUX: I've done all of my questions, and tried to do as
17 fast as I could.
18 JUDGE MOLOTO: Thank you, Mr. Mettraux.
19 Any cross-examination, Mr. MacFarlane?
20 Cross-examination by Mr. MacFarlane:
21 MR. MacFARLANE: [Microphone not activated]
22 THE INTERPRETER: Microphone, please.
23 MR. MacFARLANE: Sorry.
24 Q. Ma'am, I'm directing your attention to the conference in Belgrade
25 on the 29th of June, 2007
Page 414
1 You've already referred to that, and you've made reference to various
2 comments that were made, and in particular comments concerning whether
3 certain materials should remain confidential or whether it should be
4 released. And on my review of the transcript of this conference, it
5 appears to be somewhat in the nature of a debate. And I direct your
6 attention to -- the portion I'm wanting to direct your attention to
7 apparently is not included in the Defence materials, although I expect it
8 will be in your book, which contains the transcript of the proceedings at
9 page 93 and 94, a statement by Sasa Obradovic, that's O-b-r-a-d-o-v-i-c.
10 And what that person said was this:
11 "You only fail to tell us how you obtain this document. I shan't
12 go into this issue here, but it's as simple as that if you come by a
13 document which has been protected from public eye by The Hague Tribunal,
14 then you are committing an offence of disrespecting the Tribunal, you
15 know. Some journalists from Croatia
16 this."
17 JUDGE MOLOTO: Sorry, Mr. -- before you give the answer, you
18 talked of -- what you are reading coming from your book. I'm not quite
19 sure which book are you referring to?
20 MR. MacFARLANE: Yes. The problem that we have --
21 JUDGE MOLOTO: We don't have that document with us?
22 MR. MacFARLANE: The Defence filed a part of the proceedings at
23 the seminar, and this is not included in the Defence materials.
24 MR. METTRAUX: Your Honour, we would have no objection, if it
25 expedites things, that we tender the entire transcript, if that cuts
Page 415
1 short the issue, and if Mr. MacFarlane can address that in final
2 submission, we would have no objection to it at all.
3 JUDGE MOLOTO: Of course, if Mr. MacFarlane has to refer to part
4 of that document that has been tendered, yes, the rest must be tendered.
5 MR. MacFARLANE:
6 Q. Are you familiar with that passage from Sasa Obradovic?
7 A. Yes. Yes, I am.
8 Q. It would appear that that person was clear that protected
9 materials need to remain protected, and that you're committing an offence
10 if it's --
11 JUDGE MOLOTO: Yes, Mr. Mettraux.
12 MR. METTRAUX: Your Honour, this is a very -- in our submission,
13 a very unfair way to put the question. If Mr. MacFarlane wishes to put
14 that proposition, I think he has to refer to what was being discussed
15 before, which was the content of the redacted document themselves.
16 JUDGE MOLOTO: I think you can deal with that in re-examination.
17 Mr. MacFarlane, you are reading from the minutes of this
18 conference?
19 MR. MacFARLANE: That's correct.
20 JUDGE MOLOTO: Thank you so much.
21 MR. MacFARLANE: Thank you.
22 Q. And is it not true that Sasa Obradovic is with the Embassy of
23 Serbia
24 Serbia
25 A. Yes, it's true, he's a civil servant. But this is the only place
Page 416
1 in this entire conference that one of the civil servants of Serbia
2 mentions the decision on confidentiality or the confidential decision.
3 And for the benefit of the Judges, you say "you only fail to
4 tell," that's the way you quoted it, so the Judges might think that
5 Sasa Obradovic was addressing me. You should say that he was addressing
6 a journalist.
7 Q. I take it from the fact that different views were being presented
8 at this seminar, that it was a seminar of different perspectives and
9 different views.
10 A. Yes, it was. On the one hand, there were representatives of the
11 Defence team of Serbia
12 other hand, we had representatives of human rights organisations who kept
13 repeating their position that all protected documents should be available
14 to the public. And then some other representatives were victims from
15 Bosnia and Herzegovina. Their position, too, was that the state of
16 Serbia
17 victims, to disclose the documents. And also, of course, there were
18 representatives of the Defence team of Bosnia and Herzegovina
19 thought that in this way, Serbia
20 knowing in which way the genocide in Srebrenica had been committed.
21 Q. I suggest to you that this seminar essentially was a series of
22 views being expressed by individuals, and they were not intended to be a
23 description of the official position of the Government of Serbia, but
24 rather were the views of individuals.
25 A. But, please, the representatives of the legal team of Serbia
Page 417
1 could not state their private opinions there. They are civil servants.
2 They represented the state as a legal team, and they always, always
3 stated the positions in keeping with the entire legal strategy of
4 defence. The only exception at that panel meeting, and in all these
5 years up to the present, was Professor Stojanovic, who said that he was
6 in favour of disclosing all the protected documents. But no one else
7 from that team took it up or supported it, and even he never said
8 something like that again.
9 MR. MacFARLANE: Your Honours, there are, in essence, two further
10 areas. I'm very much alive to the time, and there are two quite
11 important areas. I will endeavour to deal with them as quickly as I can.
12 JUDGE MOLOTO: Thank you, Mr. MacFarlane. Obviously, if you
13 haven't finished, we'll have to postpone, and the witness will have to
14 come back again. There's still re-examination to take place. There
15 might be questions from the Bench also.
16 MR. MacFARLANE: In respect of the final two areas that I
17 intended to deal with, at least today, it will be necessary to move into
18 private session.
19 JUDGE MOLOTO: May the Chamber please move into private session.
20 [Private session]
21 (redacted)
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3 [Open session]
4 THE REGISTRAR: We are in open session, Your Honour.
5 JUDGE MOLOTO: Madam Kandic, unfortunately we have not been able
6 to finish with you. You will have to come back and testify to finish
7 your testimony. And just to warn you that while you are away from court
8 during the period of postponement, you are not supposed to discuss this
9 case with anybody until you finish testifying. Okay? Is that
10 understood?
11 THE WITNESS: [Interpretation] Yes, yes.
12 JUDGE MOLOTO: Thank you.
13 Now, unfortunately, availability is very difficult in the very
14 near future. This matter is going to have to stand adjourned to the 1st
15 of July, 2009. I guess the parties will be advised of the courtroom and
16 the time, but it will be the 1st of July.
17 Court adjourned.
18 --- Whereupon the hearing adjourned at 1.49 p.m.
19 to be reconvened on Wednesday, the 1st day of July,
20 2009.
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