1 Wednesday, 1 July 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Madam Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is
9 case number IT-02-54-R77.5-T, the case against Ms. Florence Hartmann.
10 JUDGE MOLOTO: Thank you so much.
11 Could we have appearance for today, starting with the
12 Prosecution, please.
13 MR. MacFARLANE: Thank you, Your Honours.
14 My name is Bruce MacFarlane. I appear on behalf of the
15 Prosecution, and with me today and throughout the proceedings is
16 Lori Ann Wanlin to my right.
17 JUDGE MOLOTO: Thank you very much, Mr. MacFarlane.
18 And for the Defence.
19 MR. KHAN: Mr. President, Your Honours, good morning.
20 My name is Karim Khan, and together with Guenal Mettraux and our
21 legal assistant, Samrina Mohamad, we represent Ms. Florence Hartmann.
22 JUDGE MOLOTO: Thank you very much, Mr. Khan.
23 May we call the witness in, please.
24 [The witness takes the stand]
25 WITNESS: NATASA KANDIC [Resumed]
1 [The witness answered through interpreter]
2 JUDGE MOLOTO: Good morning, Madam Kandic.
3 THE WITNESS: Good morning.
4 JUDGE MOLOTO: Given the fact the break has been too long, I'll
5 ask you to please make the declaration once again.
6 May the witness please make the declaration.
7 THE WITNESS: [Interpretation] I solemnly declare that I'll speak
8 the truth, the whole truth, and nothing but the truth.
9 JUDGE MOLOTO: Thank you so much.
10 Mr. MacFarlane.
11 MR. MacFARLANE: Thank you, Your Honours.
12 Cross-examination by Mr. MacFarlane: [Continued]
13 Q. Ms. Kandic, I have a couple of areas that I'd like to speak to
14 you about and ask you questions on. But before we get into anything of a
15 substantive nature: In some of the materials that have been filed in
16 these proceedings by counsel for the accused with reference to your
17 proposed evidence, you were referred to, in particular in the pre-trial
18 brief, as a militant human rights activist, and my question is whether or
19 not you agree with that characterization. And if you do, what does that
21 JUDGE MOLOTO: Yes.
22 MR. METTRAUX: Your Honour, I'm really reluctant to start
23 objecting at this stage, but could Mr. MacFarlane refer to the exact
24 passage or reference he's giving. I have no recollection of us referring
25 to a militant, Your Honour, but if we're incorrect, we'd be grateful for
1 the indication.
2 JUDGE MOLOTO: Mr. MacFarlane, will you give the citation?
3 MR. MacFARLANE: It's in the pre-trial brief which was filed on
4 the 15th of January. I won't, at this point, be able to provide the page
5 number, but we'll be able to do that later on this morning, if there's
6 any issue as to that. But the witness could simply make note of the
7 question, and we can return to that.
8 Q. During your evidence, Ms. Kandic, on the last occasion, you made
9 reference to the fact that there was quite a number of press reports and
10 public debate concerning the minutes, notes, and decisions, and I'd like
11 to ask you a series of questions which I'm hoping will be a bit more
12 precise in terms of timing and what was being discussed. But that's the
13 general area I'd like as you about is the press reports and the public
15 Can you be a bit more precise as to what was being discussed and
16 being debated during that period of time before the book came out?
17 A. Well, I happen to have with me a specific press report, an
18 article, showing that even those who were members of the legal team of
20 Council. This is a report by the B92 Radio --
21 JUDGE MOLOTO: Are witnesses allowed to come in with papers into
22 court to read from in this Tribunal, unless they're expert witnesses?
23 MR. MacFARLANE: If it refreshes the memory of the witness, I
24 would have no concerns about that, but I'm not sure that it would be
25 appropriate simply to read on and on. That would be my view and my
1 submission. This is not my witness. I'm in cross.
2 JUDGE MOLOTO: I know that. I'm just surprised that, in fact,
3 you are silent to the fact that she does have a paper with her.
4 MR. MacFARLANE: My expectation was that that was going to be
5 used for the purposes of refreshing her memory. But if it goes further
6 than that, then certainly I would have concerns.
7 JUDGE MOLOTO: Do you have anything to say about that,
8 Mr. Mettraux?
9 MR. METTRAUX: Not in particular, Your Honour. But about the
10 previous thing, we'd like to apologise to our colleague. We've
11 reached -- we've identified the paragraph, and it says Ms. Kandic is a
12 high-profile militant for human rights. So we apologise, Your Honour.
13 It is indeed used this word in this summary.
14 JUDGE MOLOTO: Okay. Yeah. I'm sure Mr. MacFarlane will return
15 to that question.
16 Okay, you may proceed, Mr. MacFarlane, if you have no problems.
17 MR. MacFARLANE:
18 Q. Ms. Kandic, could you tell us more about what was being debated,
19 the types of press reports that were going out, without necessarily
20 reading a press report. But I'd like to get a sense from you of what was
21 being debated and the nature of the press reports that were coming out
22 during that period of time.
23 A. I believe it is very important that I read one sentence. I don't
24 need this paper as a reminder. I know this very well, but I think it is
25 very important, and they can get this paper if they want it, as well as
1 all the other parties to these proceedings, because I have it with me.
2 This is a transcript of a broadcast of B92 Radio of --
3 JUDGE MOLOTO: We have a problem here. Is this going to be
4 tendered into evidence?
5 MR. KHAN: Mr. President, Your Honour, I can't answer that
6 question at the moment. Your Honour's attempt to get clarification, of
7 course, is most welcome, but given that the amicus prosecutor doesn't
8 have objection to the witness, firstly, clarifying her -- refreshing her
9 memory, and given that this document may well be relevant to
10 Your Honours' determination of this issue, arising, as it does, not from
11 Defence questioning, but from questioning of the Prosecutor, it's my
12 respectful submission that the witness be allowed to answer. And if it
13 appears that the document is relevant, it may well be the case that
14 either the amicus prosecutor or the Defence -- of course, Your Honours
15 suo motu may seek to tender this as an exhibit and have it a part of the
17 So, Your Honour, what I would respectfully suggest as a
18 constructive way forward is the witness be allowed to answer, and after
19 that, perhaps, the matter will be clarified, and we make seek to admit
20 the document as part of the court record in some form.
21 JUDGE MOLOTO: A constructive way for what, sir? It must also be
23 MR. KHAN: Your Honour, of course.
24 JUDGE MOLOTO: We don't just throw documents into court
25 willy-nilly. There are procedures for tendering evidence into court, and
1 witnesses normally don't come into court with documents. If they are to
2 be refreshed, it is counsel who has the document, who will show that
3 document to the witness, and counsel will say whether he does or does not
4 want to tender the document. Isn't that the procedure?
5 MR. KHAN: Well, Your Honour, in domestic systems, of course, it
6 is. And I haven't any idea about the document other than what the
7 witness has kindly mentioned today. But, of course, the strict rules of
8 evidence do not apply. Under Rule 89, of course, all evidence that is
9 relevant may be admitted. And so, Your Honours, if it does emerge, this
10 document may assist in the fair determination of the matter. At that
11 stage it may be that one of the parties may ask Your Honours be seized of
12 it, being professional Judges, not juries. Of course there wouldn't be
13 any prejudice, in my submission.
14 But at this point I can't help further than the observations I've
15 already attempted to make.
16 JUDGE MOLOTO: Thank you.
17 Proceed, Mr. --
18 MR. MacFARLANE:
19 Q. Ms. Kandic, you've --
20 A. I must say I am a defender of human rights, and on a daily basis
21 I represent victims of war crimes before courts, and I always use
22 documents because I believe it's very important to have my evidence
23 documented and to rely on documents. What I want to say, I can say
24 without any paper, but I wanted to show to you, Honourable Judges, the
25 document itself. And with your leave, it's one sentence.
1 JUDGE MOLOTO: Answer the lawyer's questions. Don't tell us
2 about how we should run the court.
3 MR. MacFARLANE:
4 Q. Ms. Kandic, you made reference to a single sentence that you
5 wanted to make reference to in your document. Could you read that single
6 sentence, please.
7 A. I just said the date was 27 February 2007. The reporter of this
8 Radio B92 was interviewing Professor Vojin Dimitrijevic, and she asks
10 "Professor, you know that Ms. Kandic said publicly, concerning
11 the judgement, that Serbia
12 And he answers:
13 "What Natasa Kandic means are certain transcripts of discussions,
14 deliberations of the supreme body, and they were not presented out of
15 national security concerns, something that the Court always takes into
16 account, but it relates to the issue whether there was intent to
17 exterminate one ethnic community."
18 This is a reference to a redacted portion of the transcript, and
19 what I want to show by this, that this was publicly discussed, even when
20 the question was not asked directly. Here we have Professor
21 Vojin Dimitrijevic who is speaking about this very openly.
22 Q. I'd like to return back to the area that I wanted to question you
23 on, and what I'm interested in knowing is: Prior to the publication of
24 Ms. Hartmann's book, can you tell me what was being debated and by whom?
25 A. Human rights organisations, especially in Serbia, discussed this,
1 discussed the fact of the existence of certain documents, military
2 documents, that the public at large will have no access to. This was
3 common knowledge. It was common knowledge that information is concerned
4 in those -- is contained therein not only about the financial support,
5 but other direct support that Serbia
6 not only that. We had a strong doubt that the authorities in Serbia
7 the position that the state needs to be protected, regardless of the
8 extent to which Milosevic had turned this state into a criminal one. We
9 used this public opportunity to discuss this.
10 Q. I take it from your answer, then, that when you say it was common
11 knowledge and it was being publicly -- or it was being debated, you're
12 speaking primarily of human rights organisations and people within those
13 organisations that were discussing it and debating it.
14 A. Well, ordinary people really don't give much thought to this
15 issue, and the public opinion in Serbia still holds the view that
16 national security, regardless of how it is interpreted, needs to be
17 protected. The public in Serbia
18 Milosevic regime did was something wrong. I cannot speak about the
19 public opinion because the public opinion still holds that Milosevic was
20 charged wrongly, that he was charged with crimes he had not committed,
21 that the International Criminal Tribunal was established to judge and
22 convict Serbs. That is still the prevailing view in Serbia concerning
23 crimes and responsibility for those crimes.
24 Q. So your answer to my question, then, is that the debate and the
25 discussions were primarily within human rights organisations?
1 A. Yes, yes. We used every opportunity to address this issue
2 publicly. You can find countless news reports and TV broadcasts where I
3 and many other human rights activists discussed this publicly, and of
4 course we always addressed the authorities. We knew very well who was
5 involved in this legal team of Serbia
7 preparing this defence. They frequently wrote in newspapers and scared
8 people that if the judgement should be negative for Serbia, that all
9 future generations, our children, would continue paying reparations for
10 ages, and they even used specific examples, and they would say, Does
11 friends of Jelena Santic -- Jelena Santic being a human rights activist
12 who died a few years ago, but she was taken as an example. They said
13 that her friends would be paying reparations, and those reparations would
14 be received by the friends of Radovan Karadzic. I'm just giving you this
15 example for you to see how publicly this was discussed.
16 Those who were preparing Serbia's legal defence, and they were
17 part of the highest political establishment, spoke about this very
18 publicly and prepared the public to accept anything that the authorities
19 suggest. And in the prevailing atmosphere in Serbia, where the work of
20 the ICTY is not very well accepted, this was very well received.
21 Everybody believed that Serbia
22 genocide and that all means can be used and should be used.
23 Q. Thank you. That then deals with the question of who was
24 discussing this and debating this. I'd like to turn to the question of
25 what was being discussed and debated in the earlier stages. And my
1 recollection of your previous evidence was that there was some discussion
2 of the SDC
3 A. Yes. I spoke about the transcripts of the Supreme Defence
4 Council. We constantly shared our doubts, our suspicions, in fact, that
5 these redacted portions of transcripts contain information about Serbia
6 involvement and evidence about Serbia
7 cooperation with the police and the army and the authorities of
8 Republika Srpska.
9 And let me add that when the trial started in Serbia, of the
10 members of Skorpions who were charged with liquidation of six Muslim
11 prisoners from Srebrenica, I represented the victims. And as their
12 representative, I had access to all sorts of documents which convinced me
13 even more of the need to continue emphasising in public that all the
14 evidence and all the documents concerning the cooperation between Serbia
15 and Republika Srpska in July and before July 1995 should be public.
16 Those were documents signed at the time by the minister of the police of
17 Republika Srpska, and he had signed papers from which it was obvious that
18 members of the police of the Republic of Serbia
19 territory of Republika Srpska in July 1995 at the time of the
20 implementation of what the authorities called "Operation Srebrenica," in
21 fact, the liquidation of prisoners. Those documents existed, and people
22 knew that, but nobody spoke about them publicly. I spoke about them
24 However, the Court, at sentencing stage, accepted the argument of
25 that representative of Republika Srpska who said that he signed these
1 papers showing the presence of the police of the Republic of Serbia
2 Republika Srpska so that their own fighters would be reassured that they
3 were not alone in liquidating the prisoners, that they were doing that
4 together with people from the Republic of Serbia
5 Q. [Previous translation continues]... answer my questions and
6 concentrate on the questions that are being posed.
7 My next question is this: You've made reference to documents
8 that were being discussed and being debated. Did you see any of them?
9 A. I was just speaking of documents that I personally had seen. I
10 have not seen the transcripts of the Supreme Defence Council, themselves.
11 I could not see them if they were in the possession of the highest
12 authorities of the Republic of Serbia
13 had access to them, but they were seen by the Judges of the ICTY. I have
14 never seen them, although I would like to. And as I said, I believe it
15 is important for the entire public to see them.
16 Q. You've already indicated, then, that you were speaking publicly
17 about them. You've now indicated that you hadn't seen them. So what you
18 were relating to other people was your best understanding or some
19 speculation as to the nature of the documents and what was in the
20 documents; is that right?
21 A. Needless to say, I, as well as other champions of human rights,
22 had not seen those documents, but a while ago I quoted to you what
23 Professor Vojin Dimitrijevic said, and I believe that he has seen those
24 documents because he participated in the preparation of Serbia
25 Let me reiterate. He says what were our public doubts. He says
1 Natasa Kandic is referring to the SDC
2 that those transcripts are hiding evidence about the intentions of Serbia
3 to commit -- to participate in the commission of genocide, simply
5 Q. Thank you. Ms. Kandic, you've just indicated that members of the
6 human rights organisations and the champions in this area had not seen
7 the documents, but were similarly speaking out, so what we have are a
8 number of people speaking out who are speculating as to what is in the
9 documents; is that not accurate?
10 A. Well, I wonder whether you understand what I'm saying.
11 Of course, nobody ever said that we were talking about the
12 transcripts of the Supreme Defence Council on the basis of our own access
13 to those documents. You are suggesting that perhaps I and others are
14 speaking on the basis of someone having granted us access to those
15 documents. No, those documents were not public, and we were aware of the
16 fact that those documents were not public. I knew that it was important
17 for those documents to be made public, and that is why I always --
18 whenever I appear in the media, I always said how important it was for
19 the Serbian authorities to disclose those documents.
20 When I took the stand last time, I mentioned that at a roundtable
21 gathering in connection with the judgment of International Court of
22 Justice of the 29th of June, 2007, Professor Rade Stojanovic, the leader
23 of the defence team of Serbia
24 he thought that the seal should be lifted from those documents, that they
25 should be made public, that those documents should be disclosed. He,
1 himself, said so.
2 But specifically to answer your question, of course, I always
3 spoke on the basis of what was very symptomatic. Documents were hidden.
4 Why would the Republic of Serbia
5 access to them? First of all, because, on the one hand, Milosevic, and
6 later the new authorities, accepted Milosevic's position and Milosevic's
7 explanation to the effect that Serbia
8 authorities be hiding documents about the cooperation between the
9 Republic of Serbia
10 evidence which can actually bring to light some new facts about that
11 cooperation, pertinent to the indictment -- to the charges of the ICTY
12 against Milosevic or against some other people charged with genocide, for
13 the genocide committed in Bosnia and Herzegovina and Srebrenica?
14 Q. Thank you, Ms. Kandic. I'd like to return back to my question to
15 you, and that has to do with the nature of the discussions that we're
16 going on, the nature of the debate.
17 From what you've said, it seems to me that what we're talking
18 about is people making comments based on assumptions and speculation. Is
19 that accurate?
20 A. We constantly advanced a request for the redacted portions of
21 military documents to be disclosed, that that was important for Serbia
22 that it was important for relations between Serbia and Bosnia
24 normal democratic future in the territory of the former Yugoslavia. We
25 thought that to be the most important and that every state -- in this
1 particular case, Serbia
2 society, the obligation being to disclose all facts having to do with
4 case for the genocide committed in Srebrenica. That was not our comment;
5 in other words, it was my request and the request advanced by other human
6 rights organisations, as well as by numerous jurists, and actually not
7 those who were part of the authorities, for the secret documents to be
8 disclosed, primarily the transcripts of the Supreme Defence Council, but
9 also other documents in respect of which the Republic of Serbia
10 requested the granting of protective measures.
11 JUDGE MOLOTO: Mr. MacFarlane, please control your witness. That
12 long speech doesn't answer your question --
13 MR. MacFARLANE: Yes, thank you, Your Honour.
14 Q. Perhaps my initial question might shed some light on this.
15 Ms. Kandic, in some of the original documents filed in these proceedings,
16 you were described as a high-profile militant for human rights. My
17 question to you is: Do you agree with that characterisation of you, and
18 if so, what does that mean?
19 A. Well, I'm sorry, I think this is an inappropriate question, for
20 you to ask me whether I believe that I'm a high-profile militant. Please
21 put that question to some other people, not to me.
22 Q. You are declining to answer that question?
23 A. Well, I don't think that it is courteous. That is as if somebody
24 asks you at this moment, Do you believe yourself to be a good amicus
25 prosecution at this moment? It is just not a decent question. There's
1 always other people that one asks about their opinions of other people,
2 especially about some public activists or human rights champions, or you
3 should ask the victims.
4 Q. No, I'm asking you, and my question is this: That, Ms. Hartmann,
5 through her counsel, has suggested that you're a high-profile militant.
6 And my question is: Do you agree with that?
7 A. I, in fact, don't know what "militant" exactly means. I'm very
8 committed to facts, the truth, and justice. And whatever I do, I do in a
9 very dedicated way, by spending three weeks, a month, in court
10 representing -- the fact that I do that, that I represent victims for
11 three weeks per month in court, speaks something about my commitment and
12 my dedication, I believe.
13 Q. Maybe I can suggest this to you, then, to see if you agree with
14 this or not. You have been characterized by Ms. Hartmann, through her
15 counsel, as a high-profile militant. Does that then mean that in coming
16 to testify, you want to make sure that your message is conveyed,
17 regardless of the questions that are being posed to you?
18 A. I apologise. I fail to comprehend your question.
19 Q. I'm suggesting to you that in coming to these proceedings, your
20 main objective is to bring a message, and you want to convey that message
21 to the Chamber almost regardless of what --
22 MR. METTRAUX: Your Honour, we object to that question. And I
23 apologise for interrupting my colleague. But before he can put such a
24 proposition to the witness, Your Honour, he has to establish a
25 foundation, a basis for that proposition. The qualification that was
1 given of Ms. Kandic was, as the Prosecutor pointed out quite rightly,
2 that of counsel, not that of Ms. Kandic, so he can put questions. But I
3 think putting such a suggestion without any foundation for it is, in our
4 view, inappropriate, Your Honour.
5 MR. MacFARLANE: If I might respond.
6 JUDGE MOLOTO: Yes.
7 MR. MacFARLANE: Foundation has been laid, in my respectful
8 submission. Two points. Number 1, the characterisation comes from my
9 learned friend directly and from the accused, through counsel. Number 2,
10 we have heard a number of speeches this morning. And I'm endeavouring to
11 determine if those speeches, which were non-responsive to my questions,
12 were simply messages that are being delivered to this Chamber by a
13 militant human rights activist. That is the objective.
14 MR. METTRAUX: Well, Your Honour, if we may, we believe of the
15 Chamber, we'll just add one thing.
16 If the Prosecutor were putting his questions more precisely and
17 not in the broad, general, and non-precise way which he has, I believe
18 that Ms. Kandic would be able to answer the questions.
19 JUDGE MOLOTO: Thank you. Objection overruled.
20 MR. MacFARLANE:
21 Q. Let me go back to my question, then, Ms. Kandic. I'm suggesting
22 to you that you are a militant human rights activist and your main
23 objective today is to convey a message to the Chamber and to the Tribunal
24 and to the world. Is that accurate?
25 A. Well, the way I see my role is that I am to say -- present what
1 I've been saying over the past years in connection with the case in which
2 Florence Hartmann is charged. I am only speaking and adducing facts
3 about what I've been saying in the past few years and about what other
4 human rights activists have been saying, and also how the Defence team of
6 of the transcript of the military Supreme Defence Council. And just like
7 I have been saying throughout these years, I repeat today, I always
8 consider that the redacted portions of the transcript should be disclosed
9 and made accessible to the public, and that is all. In earlier years and
10 today, that is all that I am saying.
11 And of course my question in that connection is the following:
12 Why is Florence Hartmann on trial if I and scores of other human rights
13 activists, jurists, experts on international humanitarian law, experts on
14 freedom of expression, and great champions of the spreading of
15 international justice have been demanding for years for those documents
16 to be made public, and for Serbia
18 Rules of Procedure of the ICTY and to hide away important documents from
19 the eyes of the public?
20 Q. Thank you, Ms. Kandic. I believe that you've essentially
21 answered my question. Almost regardless of what I pose to you, you'll be
22 giving a speech. My question to you is whether or not --
23 MR. METTRAUX: Your Honour, we object to that sort of comment.
24 MR. MacFARLANE: The record will be clear on that.
25 MR. METTRAUX: Well, the record can be made in final submission.
1 JUDGE MOLOTO: Sorry, sir. If you do object, please give a basis
2 for your objection.
3 MR. METTRAUX: Well, Your Honour, we object to Mr. MacFarlane
4 making comments about the evidence that is being given. If he were to
5 ask his question in a precise way, and if he wants to make anything he
6 wishes at the end of the case of the evidence that is given, the proper
7 form for that, Your Honour, in our submission, is the final brief and the
8 final arguments.
9 MR. MacFARLANE: That submission has already been made, and the
10 Chamber has ruled on it. I endeavour to pose specific questions to the
11 witness, and so far all I've received are speeches.
12 Q. I would like to move on to the next area to see if we can make
13 progress, and that is with respect to the discussion -- the public
14 discussion that you talked about concerning not the minutes and not the
15 notes and associated documents, but purported decisions of this Chamber
16 or this Tribunal. So my focused question is with respect to the
17 discussions and the debates concerning the decisions, as opposed to the
18 documents, and my question to you is: Had you seen and have you seen any
19 of these purported decisions?
20 A. I personally had not seen those decisions, but there was talk in
21 the public about those decisions. And, namely, what was said was the
22 Court had decided -- they used the term "decision," but just as when I
23 read this sentence uttered by Professor Vojin Dimitrijevic, he said it
24 was the Court that had decided that those documents or the portions of
25 those documents should be secret, so the Court -- the Tribunal was
1 referred to. The Court decided it was something that belonged to the
2 Court. There was no specific talk about the decision adopted in 2003 or
3 in some other year. It was not referred to in that way.
4 Q. Based on the discussions that were going on concerning these
5 decisions, what was your understanding on the number of decisions? Are
6 we speaking of one, or two, or three, or five? How many decisions are we
7 talking about?
8 A. I understood that two decisions were in question.
9 Q. How many people would you say you've spoken to about these
11 A. I must say that we discussed most the redacted portions, and
12 about the content and our suspicions as to what was the content of those
13 documents, and we also spoke how we could not understand why a decision
14 to the effect that those documents should be declared secret should have
15 been adopted. That is what was the gist of our discussions.
16 Q. [Previous translation continues]... the decisions, the
17 speculation was that there was two decisions. What further information
18 came --
19 A. There was reference to the existence of these decisions, but it
20 didn't matter to me and to the others how many of the decisions there
21 were. What mattered was that by those decisions, some important
22 documents have been hidden from the public. It turned out that also in
23 the case of the International Court of Justice, those documents were not
24 accessible either, and we thought - I am referring to myself and to other
25 human rights activists - thought that it was not good, that it was bad,
1 that this was not a proper relationship towards the past, that this was
2 not a proper relationship -- attitude towards victims. And we thought
3 that we were bound by the principles of Louis Joinet and
4 Diane Orentlicher, some experts, in other words, who in their line of
5 duty dealt with some very important issues which concern also the right
6 of individuals, of victims, and of societies to know, including their
7 right to be familiar with the evidence which is actually hidden by the
8 redacted portions of the transcript of the Supreme Defence Council.
9 Q. [Previous translation continues]... narrow one, and a very simple
10 one. I'd be grateful --
11 MR. KHAN: Your Honour, just one intervention that may assist my
12 learned friend. I do note that after he asks the question in English, he
13 takes his headphone off when the witness is answering, and I think this
14 is the reason why on a few occasions there has been an overlap between
15 the translation of the answer and then my friend's subsequent question.
16 So perhaps if there can be a pause, it would help, because we've missed
17 some translation of the answer that was being given.
18 JUDGE MOLOTO: Thank you for that intervention, Mr. Khan.
19 If you could -- I'm talking to both witness and counsel. If you
20 could pause between question and answer so that we give the translators
21 an opportunity to finish their translation.
22 MR. MacFARLANE: Thank you.
23 Q. Ms. Kandic, my question is a very focused and a simple one, and I
24 would be grateful if you could answer that question. The question is
25 this: How many people did you speak to about the decisions?
1 A. It is clear from all my answers that I cannot give you a specific
2 number of persons. Sometimes I spoke about it in some written text, in
3 an interview, the consequence of that being that many people read about
4 it. Those people who read about it talked about it with other people.
5 So when the public airing of comments and views is in question, it is
6 hard to tell what the number of persons with whom I spoke was. Perhaps
7 with 50 people, either human rights champions or experts --
8 international, regional, national experts. Perhaps I talked with them
9 about our suspicions as to what could be contained in these documents of
10 the military defence council. We talked so as to devise a way in which
11 we could bring pressure to bear for those documents to be disclosed.
12 But I repeat, I spoke about it publicly, I also spoke about it
14 JUDGE MOLOTO: Mr. MacFarlane, we've got to finish. Please
15 control your witness.
16 MR. MacFARLANE: Thank you.
17 Q. I'll pose one further question in this area, Ms. Kandic, and I
18 would urge you to provide me with an answer which is responsive to my
20 My question is this: I'm suggesting to you that a large number
21 of people were discussing these decisions, virtually none of whom had
22 actually seen the decisions, so what we're talking about is a series of
23 assumptions and speculation as to these decisions. Is that a fair
24 assessment of what was going on?
25 A. I and the other human rights activists talked about what those
1 decisions had done. By those decisions were hidden from the public
2 important documents. That is what was the subject of our talks. Mind
3 you, the fact that it was a decision is the form -- that is what formally
4 actually led to the substance. The substance was that there existed
5 secret documents. We wanted a secret document disclosed. That was the
6 essence of our public demand, for the disclosure of those documents.
7 JUDGE GUNEY: [Interpretation] Madam Kandic, you have just told us
8 that there were references to the existence of the decisions. Would you
9 be kind enough to provide more explanation as to the contents of the
10 references? Thank you.
11 THE WITNESS: [Interpretation] The way I understood it was that
12 the Judges had handed down decisions on the basis of which Serbia
13 request was accepted to the effect that certain parts of the transcript
14 of the military Supreme Defence Council should be confidential, should be
15 secret; namely, documents that we doubted -- that we suspected were
16 pertinent to the period when the genocide in Srebrenica was committed.
17 That's what we talked about. We did not talk about nor was our request
18 focused on the decisions, themselves. All we asked for was for those
19 documents which became confidential by virtue of some decisions, for
20 those documents to be disclosed. That's was what was important for us,
21 for those documents to become public and for the public to gain access to
22 the redacted parts of the transcript.
23 We always talked about the content of the document, what was
24 behind the redacted parts of the document. That was what we were talking
25 about, that was what mattered to us.
1 MR. MacFARLANE: Thank you, Ms. Kandic.
2 Q. I'd like to move on to another issue, and that is the conference
3 that you assisted in organising in Belgrade, and you talked about that on
4 your last occasion here, which was held on the 29th of June of 2007. Do
5 you recall that discussion?
6 A. Excuse me. Which roundtable -- which talk? There's nothing
7 associated with the 12th of June.
8 MR. METTRAUX: Twenty-nine, Your Honour.
9 JUDGE MOLOTO: Thank you. The 29th, I'm told it is.
10 MR. MacFARLANE: Yes, that's correct. I apologise, it is the
11 29th of June.
12 Q. Let me read the heading of the document that was discussed last
13 week -- on the last occasion to see if that assists. It is "Humanitarian
14 Law Centre in Belgrade
15 the International Court of Justice on Genocide." Do you recall that
17 A. Of course. Of course, I recall it.
18 Q. I'd like you to give us a sense of the format of that conference,
19 and in particular the discussion on the minutes and the notes that we've
20 been talking about. Was it a panel discussion? Was it a large group
21 discussion? Was it individual presentations? Can you give us a sense
22 and a flavour of the format.
23 A. It was a roundtable discussion with participants from the Defence
24 team of Serbia
25 other participants were jurists from all the states of the former
2 entire region. This was a regional specialist gathering. There were
3 about 40 participants.
4 Q. And it's my understanding that a number of people spoke to the
5 question of protected documents and decisions, and they were expressing
6 their own views on that; is that correct?
7 A. Yes, this was very much on the agenda.
8 Q. There were being different views that were being expressed. On
9 occasion, one or more of the participants noted the need for care in
10 discussing these matters because they were confidential; is that not
12 A. I cannot recall anything of the kind having been said by anyone.
13 I do believe that Sasa Obradovic did, but it wasn't important because all
14 the other participants, including the Serbian Defence team leader,
15 Radoslav Stojanovic, were in favour of those documents being disclosed,
16 so that we actually again discussed the essence -- the content of those
17 documents. He said that he would very much like to have those
18 transcripts disclosed because then it would be seen that they contained
19 nothing important, that there was no important evidence in them at all.
20 And I expected that something would really happen, because if someone who
21 was the leader of the Defence team of the Republic of Serbia
22 advocating the disclosure of the transcripts at such a gathering, that
23 that would indeed happen, and I supported his position strongly that they
24 be disclosed, because when he said that it will then be seen that there
25 is nothing in them to the effect of what was being publicly said, I said,
1 Of course, then do disclose them. Let us have access to those documents
2 to see what it is that they are hiding from the public, what is hidden in
3 those documents.
4 What impressed me most was about Professor Rade Stojanovic, just
5 like myself and other human rights activists, and he was the Defence team
6 leader, demanded the opening, the disclosure of these confidential and
7 redacted portions of these documents.
8 JUDGE MOLOTO: Yes, Mr. Mettraux.
9 MR. METTRAUX: Your Honour, before we proceed, I wanted to give a
10 chance to the witness to give her answer to the question, but we object
11 to the manner and the unfairness, in our submission, in which the
12 question is posed to the witness.
13 The amicus asked whether a participant, or participants, he said,
14 noted the need for care in discussing this matter because they were
15 confidential. In our submission, Your Honour, and we will readdress the
16 matter in re-examination, if Mr. MacFarlane wishes to put to the witness
17 that a participant or several participants gave a warning to that effect,
18 he should specify what the warning pertained to. As I mentioned,
19 Your Honour, we will address that --
20 JUDGE MOLOTO: He just said it pertained to the confidentiality
21 of the document.
22 MR. METTRAUX: Well, the problem, Your Honour, is it doesn't.
23 The transcript will reveal what it refers to, and we'll deal to that in a
24 moment. But Mr. MacFarlane should be careful, when he puts the question,
25 to specify that it was, in fact, the content of the SDC minutes that were
1 referred to by the parties in question, not the decisions.
2 JUDGE MOLOTO: Mr. Mettraux, if you prefer to advise
3 Mr. MacFarlane how to put his questions, maybe you can do that later. I
4 just am not going to interfere in Mr. MacFarlane's manner of asking
5 questions, unless what he does is irregular in terms of the Rules.
6 MR. METTRAUX: Your Honour, obviously this is the Chamber's
7 ruling, and I'm not trying to interfere with it, but if Mr. MacFarlane
8 wishes to --
9 JUDGE MOLOTO: Then if you accept that it is the Chamber's
10 ruling, then unless you disagree with it and you want to take it on
11 appeal, you can take it on appeal, you don't have to comment on it any
12 further. Thank you.
13 MR. MacFARLANE: Thank you.
14 Q. Ms. Kandic, you indicated that you weren't sure if anyone had
15 expressed concerns about being careful concerning confidential documents
16 or confidential decisions. Let me see if I can refresh your memory on
18 At page 93 and 94 of the book that you had on the last occasion,
19 the following is attributed to Sasa Obradovic as follows:
20 "I shan't go into this issue here, but it's as simple as that if
21 you come by a document which has been protected from public eye by
22 The Hague Tribunal, then you are committing an offence of disrespecting
23 the Tribunal. You know, some journalists from Croatia have answered for
24 something like this."
25 Do you recall hearing that during the discussion, and do you
1 recall seeing that in your book?
2 A. Yes. Let me remind you, I did say a moment ago that
3 Sasa Obradovic said something like that, but that was a completely minor
4 comment relative to countless other speeches and comments concerning the
5 redacted portions of those documents.
6 Q. Are you saying that it was a minor comment, that someone with the
7 Serbian Embassy was cautioning people about the prospects of committing
8 an offence and the need for care? That was a minor comment, in your
10 A. Sasa Obradovic was an employee of the embassy, and next to him
11 stood Professor Stojanovic, who had led Serbia's Defence team. And he
12 was saying that he was in favour of those documents that had been
13 proclaimed confidential by the Judges of the ICTY being made public. And
14 in my eyes, it was much more important, what Professor Stojanovic was
15 saying, than a simple employee, Sasa Obradovic.
16 Q. Is it not true that that simple employee, Sasa Obradovic, was
17 also a lawyer employed with the embassy?
18 A. I really don't know who and what Sasa Obradovic is. Embassies
19 have large staffs. And as far as I understood, he was helping the
20 Defence team, but he had no high-profile role. Professor Stojanovic was
21 very well known, on the contrary. He was a professor at our university's
22 law school, he was a prominent participant of that roundtable panel of
23 29th June 2007
24 legal team was to defend Serbia
25 legal team succeeded in that.
1 Now, the effect of that was that I and the others asked questions
2 later. Did they succeed because certain documents were not accessible;
3 namely, the transcripts of the Supreme Defence Council?
4 Q. Ms. Kandic, my questions at this point focus entirely on the role
5 that Sasa Obradovic played at this conference. You indicated that, in
6 your view, his comment, which was a cautionary one, was a minor comment,
7 but later on in that same excerpt that you have in your book, that same
8 individual, Mr. Obradovic, said this:
9 "I'm talking here exclusively as a lawyer, and I was invited here
10 as one, as the representative of Serbia and Montenegro
11 Is that not true? Do you not recall that?
12 A. I can only repeat what I said earlier. We invited
13 Professor Stojanovic, and I know we had invited Vladimir Djeric because
14 he was well known to the public. Before 2004, he was a very good lawyer,
15 employed by the foreign ministry, and the public knew him very well as
16 someone who was dealing with issues connected with the case of Bosnia
18 figure. It was probably Professor Stojanovic who had suggested that he
19 take part in the panel. I don't think we invited Sasa Obradovic,
20 ourselves. He might have been a member of the team or perhaps a
21 technical assistant to the team, but he was a civil servant, a civil
22 servant whose job it was to defend the positions, the demands, and the
23 decisions of his state.
24 I don't think anything is controversial here. I can just say
25 what I said before, that at that meeting Sasa Obradovic's role was to
1 defend. When I said that there is a lot of evidence that members of the
2 Serbian police and army had taken part in the slaughter of Srebrenica, he
3 said, yes, but there exists such a thing as the Nicaragua test.
4 Q. I want to be clear, then, on what you're saying to the Chamber.
5 You're saying that Mr. Obradovic intervened, his comment was a minor one,
6 in your opinion it was insignificant because he was a civil servant, even
7 though he was employed as a lawyer at the Serbian Embassy and had
8 appeared before the ICJ on behalf of Serbia? Is that what you're saying
9 to this Chamber?
10 A. Let me be even more specific. In my eyes, he was a civil servant
11 who had orders, instructions, to read the transcript, see what's bad for
13 believe that he and other lawyers in various state agencies were
14 instructed to read these documents and see what would be a bad thing to
15 be seen by the International Criminal Tribunal and the ICJ, be it in the
16 case before the ICJ or indictments by the ICTY. There's no dispute about
18 Sasa Obradovic did not dominate over this round-panel discussion.
19 What was dominant was the discussion whether this judgement by the ICJ
20 had brought justice, and some participants, including me, said that the
21 judgement did not bring justice, primarily because it did not have access
22 to documents that we believed contained evidence about Serbia
23 involvement in Srebrenica. And I also quoted many other documents from
24 which it is obvious that Serbia
25 prisoners in Srebrenica, and Sasa Obradovic responded to that by saying
1 that we should take into account the Nicaragua test and what the Judges
2 of the ICJ had decided.
3 Q. Ms. Kandic --
4 A. Well, first you ask me a question, and then you don't want to
5 hear the answer. You ask me one thing, and when I tell you what was
6 relevant about Sasa Obradovic's arguments, you don't want to hear it.
7 Yes, the Nicaragua
8 and those of other participants that there is concrete evidence about the
9 cooperation between the Republic of Serbia
10 Q. Ms. Kandic, in these proceedings it's very important for you to
11 listen to the question that I pose and be responsive to that question.
12 I'm not asking for speeches. I don't think there is any point in
13 proceeding further on that particular point.
14 What I'd like to now move to is some recent speeches which have
15 been provided by the Prosecutor in this Tribunal and by the President of
16 this Tribunal, and I'm going to be focusing on the question of the
17 cooperation of states.
18 [Prosecution counsel confer]
19 MR. MacFARLANE: I'm going to ask that the -- I'm going to ask
20 that the two statements that I'll be drawing to the attention of the
21 witness be distributed.
22 THE INTERPRETER: Interpreters would also appreciate a copy of
23 the two relevant statements.
24 JUDGE MOLOTO: Mr. MacFarlane, do you have sufficient copies for
25 the interpreters?
1 MR. MacFARLANE: Yes, we do.
2 JUDGE MOLOTO: Thank you so much.
3 MR. KHAN: Just to caution my learned friend that their
4 microphone is on.
5 MR. MacFARLANE:
6 Q. Ms. Kandic, I'd like you to look, first of all, at the document
7 headed "Statement" on the front page, and address of Serge Brammertz, and
8 I will read the relevant parts to you so that you can understand it in
9 your preferred language. But for everyone else in the proceedings, I'll
10 be describing the nature of the document and then proceeding to page 2.
11 JUDGE MOLOTO: Mr. MacFarlane, without wanting to interfere, we
12 are going to be going for a break in a minute's time. Do you think you
13 want to start this new topic now?
14 MR. MacFARLANE: No, I think it would be best after the break.
15 It's a whole new area.
16 JUDGE MOLOTO: Shall we then take the break at this stage?
17 MR. MacFARLANE: That's fine, thank you.
18 JUDGE MOLOTO: We'll take a break and come back at quarter to
20 Court adjourned.
21 --- Recess taken at 10.16 a.m.
22 --- On resuming at 10.46 a.m.
23 JUDGE MOLOTO: Yes, Mr. MacFarlane.
24 MR. MacFARLANE: Thank you, Your Honours.
25 I did take the opportunity during the break to review my notes,
1 and I'm pleased to say that I've been able to reduce the areas that I
2 intend to pursue, and my best estimate is that the balance of my
3 cross-examination will be in the vicinity of half an hour, maybe a little
4 bit more, but in that range.
5 JUDGE MOLOTO: Okay. Thank you, sir.
6 MR. MacFARLANE:
7 Q. Ms. Kandic, do you have the document headed "Statement Address of
8 Serge Brammertz..." before you?
9 A. Yes, I do.
10 Q. And just so that the record is complete, I'm referring to a
11 document which has been marked as tab 2 for these proceedings, headed
12 "Statement Address of Serge Brammertz, Prosecutor of the International
13 Criminal Tribunal for the former Yugoslavia
14 June 2009," directed to Mr. President, Mr. Prime Minister, Excellencies,
15 and it's dated at the top, the 4th of June, 2009.
16 This is then a statement to the Security Council just a matter of
17 three or three and a half weeks ago. And I am asking you to turn to
18 page 2, and I will read it to you so that you can consider it in your
19 language. I'm going to direct your attention only to the first two
20 paragraphs, actually, after the little stars at the top, the two
21 paragraphs immediately after that. And the first one reads as follows:
22 "The cooperation of states with my office remains critical to the
23 successful completion of our trials and appeals work."
24 Do you see that, and did you hear me read that into the record?
25 A. Yes, yes, I see it.
1 Q. The Prosecutor was, therefore, emphasising that the cooperation
2 of states was important to the work of the OTP. You see that emphasis in
3 that statement?
4 A. Yes, I do.
5 Q. Do you agree with the Prosecutor when he says that?
6 A. Yes, yes.
7 Q. Moving to the second paragraph, it reads as follows:
8 "We continue to request the assistance from Bosnia and
10 provision of documents, access to archives, ensuring that witnesses can
11 testify before the Tribunal, and assisting in locating and arresting
13 Do you see that portion of it, and did you hear me read it into
14 the record in your language?
15 A. Yes, I see it, I heard it.
16 Q. Do you agree with that statement as well?
17 A. Yes, yes.
18 Q. I take it that on the basis of those two statements, that you do
19 recognise that state cooperation with the Tribunal is very important.
20 A. Yes.
21 Q. Important to bring offenders to justice, and it's important to
22 ensure that witnesses are treated properly, and victims; is that correct?
23 A. Yes.
24 Q. My question to you is this: Given the importance of the
25 cooperation of states -- sorry. Before I get to that question, before I
1 get to the question: Are you familiar with the concept of protective
2 measures, particularly as regards victims?
3 A. Yes, I am.
4 Q. Are you familiar with the concept of protective measures on the
5 application of a state?
6 A. Yes; not in detail, not in every detail, but I know that under
7 the Rules of Procedure and Evidence of the ICTY, states are entitled to
8 seek protective measures when national security is concerned.
9 Q. Thank you. My question to you is this, Ms. Kandic: Would it
10 surprise you if, in the event of routine breaches of protective measures
11 sought and received by states, that a state might start to reconsider its
12 cooperation with the Tribunal?
13 A. Well, this question of yours is really speculative. I don't know
14 of any example of a state seeking a reconsideration of protective
15 measures. At no time did Serbia
16 statement of Professor Rade Stojanovic that he believed the transcripts
17 of the SDC
18 that, In that case, we would no longer provide documents under protective
19 measures, because these were states, parties to the conflict, and they
20 must not blackmail the Tribunal.
21 Q. Let me put my question slightly differently, and I'd like to get
22 your reaction to it. I suggest to you that it is important to enforce
23 protective measures sought by a state and received by a state in order to
24 ensure their continuing cooperation with the Tribunal, including, for
25 instance, Serbia
1 A. It is my opinion, that is shared by many experts in freedom of
2 expression and experts for justice following armed conflicts, that
3 protective measures must not prejudice justice. Protective measures for
4 witnesses are extremely important, but it has turned out that the
5 Tribunal imposes protective measures here while witnesses testify, but
6 these measures and protection do not continue after the witnesses return
7 to their home country.
8 I repeat, protective measures must correspond to the need for
9 courts to establish facts, and, in criminal trials, to establish the
10 responsibility of the accused, and, when we speak about the ICJ, to
11 establish state responsibility.
12 Q. Let's move in a little bit more closely, then, to the point. I
13 take it from what you've said so far that you do support protective
14 measures in connection with witnesses and victims.
15 A. Yes, I support them, because there are witnesses who are in
16 danger, and unless they are relocated, their life would be in danger,
17 because if they talk about crimes in which members of the police and the
18 army of their home country were involved, then their life would be in
19 danger in that country. Therefore, I strongly support very precise and
20 very broad protective measures for such witnesses.
21 Q. Turning now to the question of protective measures for states, do
22 you similarly support the ability of states to seek protective measures
23 and have them evaluated by the Tribunal?
24 A. I will stick with the example of the former Yugoslavia. What is
25 in issue there was a war that did not -- that was not contained in the
1 territory of one state. It took place in the territories of a number of
2 states, excepting Serbia
3 trials arising from that conflict, and if proceedings are held before the
4 ICJ to establish the responsibility of individual states for such crimes,
5 then if there is evidence, relevant evidence that one state claims
6 involves its national security interests, then the Court has to balance
7 these requests for protective measures with a need to administer justice.
8 If a large number of such evidence and documents are not accessible, then
9 it might happen that the Court fails to administer justice in such a way
10 as to guarantee that such conflicts would not be repeated.
11 Q. Ms. Kandic, where a state has sought and obtained protective
12 measures, do you support its enforcement in the event of a breach?
13 A. I, as a champion of human rights, in this case and before - I
14 don't know exactly when these decisions were adopted - always advocated
15 that there should be no confidential documents when war crimes trials
16 arising from crimes in the former Yugoslavia
17 advocated that all documents concerning crimes in the states of the
18 former Yugoslavia
19 facts in a public way, so that we are able to see what Milosevic and his
20 regime exactly did when they brought our people and our country into a
21 situation when they are under sanctions, when they were later accused of
22 involvement in genocide, and the whole country was accused of involvement
23 in numerous crimes that led to the death of thousands and thousands.
24 Independently of that, I always advocated that there should be no
25 confidential documents.
1 Q. Are you then saying that you do not have confidence in the
2 ability of this Tribunal to properly analyse an application and do the
3 balancing that's required on the application of a state for protective
5 A. First of all, I should like to say that I am a champion of human
6 rights, and my basic task is to advocate what are the principles on which
7 respect for fundamental human rights are based and the rights of
8 societies to the truth, the right to have facts established on the basis
9 of which the accountability of either individuals or states shall be
10 established. Along those lines, I always and on every occasion have to
11 work for the families of the victims and for society to be made available
12 facts and for all facts to be publicly disclosed, facts which can help
13 establish why things happened and why war crimes happened. That is the
14 only way in which we can come up with guarantees for the kind of crime
15 that has happened to be never repeated. This is something that I have
16 learned. I learned this from the top experts on transitional justice.
17 This is something I read while reading Joinet, Bassiouni, or Orentlicher.
18 Apart from that, I also appreciate the fact that both the
19 Prosecution's and Tribunal's courts have to ensure sufficient guarantees,
20 after international trials, that there will be no repetition of crimes.
21 But if documents are hidden, there will never be peace. They will always
22 keep saying that Serbia
23 exact truth. On the other hand, we have countless individuals saying
24 that they know that through its police and army, Serbia directly
25 participated in the commission of genocide in Srebrenica.
1 I've talked to many people who would never say so publicly, who
2 are afraid to do so, but it is, in a way, common knowledge; namely,
3 irrespective of these decisions on confidential documents and the hiding
4 of these documents, it is necessary for the truth to be known, but for
5 the truth to be known, it has to be publicly recognised as such. If
6 documents are hidden, the truth will never be publicly demonstrated,
7 publicised, and therefore it will be never recognised.
8 Q. Ms. Kandic, I have one question left on this particular point.
9 It's a focused question. I would ask you to simply indicate whether you
10 agree or disagree with me. And the question is this: You seem to be
11 saying that you agree with the concept of protective measures for victims
12 and support that, but that you don't have the same sort of support for
13 protective measures at the instance of a state. Is that accurate or not?
14 A. It is not accurate. It stems from what I have said, that I do
15 not agree for protective measures, vis-a-vis states, participants in
16 armed conflicts in respect of which there are serious indications that
17 they might be accountable for the commission of the gravest crimes,
18 including genocide; namely, states, participants in armed conflicts, are
19 excluded by me from that.
20 Q. So certain types of protective measures at the instance of a
21 state you would support, others you would not; is that right?
22 A. What I'm saying and what is extremely important for me is that
23 there should be no confidential documents where states, participants in
24 armed conflicts, are concerned. I never referred to protective measures
25 in respect of states that have nothing to do with either war crimes or
1 armed conflicts, armed conflicts which are the subject of trials. And
2 I'm not quite certain that I can competently give you the rationale for
3 that at this point in time. I would require some time to read through a
4 lot of material in order to come up with a meritorious position. What
5 I'm referring to, in regard of this position, is that it refers to states
6 which are not directly associated with an armed conflict. They have some
7 documents that can be of assistance to shed light on facts, but they have
8 some reasons that they are guided by because of their national security
9 concerns. But when we are talking about states, participants in armed
10 conflicts, my position is quite clear on that score. I'm against their
11 invoking of their vital national interest and national security being
12 actually accepted if, in that way, they hide some documents. I proceed
13 from the fact that after armed conflicts are finished, like was the case
14 in Serbia
16 under his control, did. They absolutely must adopt a different approach,
17 and that means that they have to adduce all facts which will shed light
18 on what that state -- what that system did and the way in which it
19 contributed, i.e., participated in the commission of the gravest crimes.
20 Q. The final question in this area, Ms. Kandic is: So that, in
21 essence, what you're saying is that Serbia
22 right to ask for protective measures; is that correct?
23 A. I believe that a state charged with the gravest crimes, such as
24 genocide, as Serbia
25 have the right to hide important documents, any documents, because no
1 invoking of national security interest can make up for -- substitute the
2 need to establish the truth, the facts.
3 Representatives of Serbia
4 why defence by all available means is important. They sought to frighten
5 the citizens of Serbia
6 reparations. But I feel once the authorities changed, as was the case in
8 committed to the need to establish facts; that they should adopt the
9 proper attitude to the crimes that were committed and to the role of its
10 institutions in those events. What I mean is that a so-charged state
11 should not be allowed to maintain documents confidential, because in that
12 case it actually is keeping secret documents which actually give the
13 right to the victims and to all injured parties to suspect that it is
14 precisely that state that is accountable, that the state is indeed
15 accountable for what it is being charged with, for the genocide that it
16 is being charged with.
17 Q. Ms. Kandic, I'd like to move on to a new area. This will be the
18 second-last area I'd like to talk to you about. It's completely
19 different from what we've been talking about in the past. This has to do
20 with the decision-making process within the Humanitarian Law Centre.
21 You mentioned earlier that there is a board of management within
22 the centre?
23 A. Yes.
24 Q. And Ms. Hartmann, amongst others, is on that board?
25 A. Yes, she is.
1 Q. How many persons, in total, are a part of the board of management
2 of the centre?
3 A. Seven.
4 Q. In terms of the decision-making process within the centre, would
5 it be accurate to say that on key issues, on key positions, that there is
6 a consensus-building, there is a collective decision-making process, as
7 opposed to simply one person making the decision? Would that be fair to
9 A. Yes, a consensus.
10 Q. Over the years, you have had occasion to deal with governments in
11 different parts of this area of the world?
12 A. Well, yes, but our contacts with governments were mainly linked
13 to war crimes trials and the need to establish facts. We do not have any
14 political context with governments because we are not a political party.
15 Our context exclusively have to do with our basic activity, which is the
16 establishment of justice following armed conflicts, and it is pursuant to
17 that that we maintain our contacts with the governments in the region.
18 Q. Would it be fair to say that governments, being a large
19 organisation, and indeed any large organisation, have the same sort of
20 decision-making process, that is, a collective decision-making process,
21 similar to your centre?
22 A. I, frankly, do not know how governments are organized, and I do
23 not have that many contacts with governments in the region. We
24 exclusively established such contacts when there is a pronounced need for
25 us to help in war crimes trials. For instance, in the year 2004, the
1 Ministry of Justice of the Republic of Croatia
2 in connection with war crimes trials in Belgrade because the trials
3 started with the massive case of the liquidation of Croatian prisoners,
4 so I addressed the Ministry of Justice of the Republic of Croatia
5 requesting them to assist us in encouraging the witnesses, the injured
6 parties, to come and testify. This is the extent of my liaising with
7 governments, apart from the fact that as a citizen, I follow the speed
8 with which the process of the democratic-building of society is evolving
9 or is inhibited. Otherwise, I have no reason to seek any additional
10 contact or explanations from government or to familiarise myself with the
11 way in which they adopt their decisions.
12 I follow the work of parliaments and the way in which they adopt
13 their decisions, the agenda of the parliaments in Bosnia and Herzegovina
15 JUDGE MOLOTO: Slow down. The interpreter is struggling to keep
16 pace with you, ma'am.
17 MR. MacFARLANE:
18 Q. Ms. Kandic, I want to move into the last area of my questions,
19 and this has to do with your connection with Ms. Hartmann, the accused in
20 these proceedings.
21 At the beginning of your testimony, you outlined the nature of
22 the relationship and your contact with her going back a number of years.
23 When was the last time you spoke to Ms. Hartmann?
24 A. At the end of May this year.
25 Q. You indicated that you were sorry to see her charged?
1 A. Not in the sense that I was sorry in that way. I thought that it
2 was unjust, and I've been saying for years -- I've been protesting
3 against this and the way in which the disclosure of these documents was
4 prevented. And not only I, myself, but many other people, too. And it
5 seemed unjust to me that she should be charged with this, and I was there
6 actually advocating the disclosure of these documents, not speaking about
7 myself only. There are countless other human rights champions,
8 journalists, jurists. Also the president of the board of management of
9 the Humanitarian Law Centre is a renowned jurist, Professor Pajic. He,
10 too, has been advocating this, and many other jurists, international
11 jurists, those dealing with international law, namely. They all have
12 been strongly raising their voices in favour of the fact that the
13 transparency of court trials should actually rule out decisions which
14 will declare confidential many important pieces of evidence and declare
15 them confidential documents.
16 Q. I'm not speaking now of other persons, and I'm not speaking of
17 documents, but I'm rather focusing on how you feel about these
18 proceedings. And my suggestion to you, and I want to get your reaction,
19 is that you think that it was unfair for Ms. Hartmann to be charged.
20 A. This is not about feelings, you know. This is my principled
21 attitude. It is not that I am sorry for her, irrespective of what she's
22 been charged with, that I feel sorry for her and that that is why I've
23 been saying what I've been saying for years. This is not about that.
24 This is not about friendship, about emotions. This is about a
25 highly-important professional issue, and that is my position, vis-a-vis
1 that issue, regardless of whether Florence Hartmann is in question or
2 somebody else.
3 Q. My final question is this: I take it, from what you've said,
4 that you would not want to see the accused convicted.
5 A. Well, I again have to correct that expression of yours. You say
6 that I would not want to see her convicted. I profoundly believe that
7 there is not a single real reason - I'm referring to the realm of truth
8 and justice - for her to be convicted. In my view, this trial should
9 serve to reconsider -- re-examine the decision -- the adoption of a
10 decision for those transcripts to be at long last disclosed so that we
11 might eliminate all these doubts, dispel all these suspicions, in terms
12 of the evidence about the crimes in Srebrenica and all the other things
13 which happened in 1992 and 1993. For us, the citizens of the countries
14 of the states formed in the territory of the former Yugoslavia, it is
15 very important to actually be confronted with that past. Now, the fact
16 that we do not have the best of authorities, the democratic authorities
17 that we need to have, that is why, inter alia, this issue is so
18 important. We need to stop supporting something which still belongs to
19 the old authorities, which is the ownership of Milosevic's regime. I
20 believe it is very important for us not to have any secret in respect of
21 that state, in respect of Milosevic, that we stop creating myths and
22 compel today's authorities to act in accordance with facts, no matter how
23 embarrassing, how difficult, those facts might be. But what Milosevic's
24 state did is something that we need to know the truth about.
25 Q. Ms. Kandic, based on what you've said, I suggest that you
1 perceive these proceedings as a vehicle to achieve your agenda and your
2 objective, and that is the disclosure of the documents. Is that
4 A. I avail myself of every opportunity to say that we should not
5 have secrets, that we should exert pressure on the authorities for them
6 to renounce that tool of theirs, that of manipulating and of hiding. We
7 need guarantees that there will be no more crimes, and one of such
8 guarantees is that what has been declared a secret should be disclosed.
9 Now, the fact that you are interpreting this in this way, namely,
10 you keep accusing me that I'm some sort of an orator, a politician, that
11 I'm using this for promoting my personal objectives, I have no personal
12 objectives. All my objectives are based on what I have learned since the
13 beginning of this war, which is that the truth and facts are the most
14 important of all. Please, I have no private objectives. I have no
15 power. I am just a mere human rights activist who has learned, after all
16 these years -- who has come to understand the facts. The disclosure of
17 facts can be of the greatest assistance to us.
18 I live there. You don't live there. I want our future to be
19 brighter. I want us to force these authorities to make available to us
20 all facts concerning the past. I want them to tell us the facts, to tell
21 us where the graves are, mass graves are, to show us the transcripts of
22 this army. The army is not innocent at all. The generals are at large,
23 and thousands of people have been killed. I want us to actually lift the
24 veil of mystery from the police and from the army and to give priority to
25 what is professional, and nothing is professional if documents are hidden
1 behind it.
2 MR. MacFARLANE: Thank you, Your Honours. I have no further
3 questions of this witness.
4 JUDGE MOLOTO: Thank you, Mr. --
5 THE WITNESS: [No interpretation]
6 JUDGE MOLOTO: Sorry, ma'am. You have not been asked a question.
7 The Prosecutor said he has finished.
8 Mr. Mettraux, do you have any re-examination?
9 MR. METTRAUX: Yes, thank you, Your Honour.
10 And perhaps before we start, we have a bundle of document for the
11 witness, the Chamber, and the Prosecutor.
12 Re-examination by Mr. Mettraux:
13 Q. Good morning, Ms. Kandic.
14 Do you recall being asked a number of questions by the
15 Prosecutor, both two weeks ago, when you first came, and earlier this
16 morning, about a comment, or I think it was called a warning, that
17 Sasa Obradovic gave to Ms. Hadzovic? Do you remember those questions?
18 A. Yes, I do recall it.
19 Q. Can I ask you to turn to what is tab number 1 of the series of
20 document that I've given to you. You will see, sir, a number of it's
21 extracts from the transcript of the 29th of June, 2007, conference in
23 page 40, 4-0, please.
24 Can you see here, at the --
25 A. No, I cannot. Page 40, you say?
1 Q. Yes, please.
2 A. Yes.
3 Q. Can you see that towards the bottom of the page, there is a
4 comment or statement attributed to Mr. Sasa Obradovic? Can you see that?
5 A. I can.
6 Q. And if you turn the page over to page 41, you will see the
7 statement of Mr. Obradovic continues. Can you see that?
8 A. Yes, I can see that.
9 Q. And I'll direct you towards the -- it's slightly below the middle
10 of the page. There is a sentence starting with the words: "Finally, on
11 the censored parts of the document ..." Can you see that? I will read
12 the sentence to you. It says this --
13 JUDGE MOLOTO: Sorry. Can you just direct us exactly where to
14 read, sir.
15 MR. METTRAUX: Yes, Your Honour, it's 16 lines from the bottom,
16 if you wish to count it, or it's slightly under -- three or four lines
17 under the highlighted part. It starts with the words: "Finally, on the
18 censored parts of the documents ..."
19 JUDGE MOLOTO: Thank you.
20 MR. METTRAUX:
21 Q. Ms. Kandic, it says this:
22 "Finally, on the censored parts of the documents, I should like
23 to tell you two things, which is that the accused Milosevic completely
24 agreed with the opinion of Ms. Skare Ozbolt, that everything has to be
25 made public, not only on closed but also open sessions."
1 Can you see that?
2 A. Yes.
3 Q. And what Mr. Obradovic referred to on that point, was it the
4 redacted or censored parts of the documents, or the confidential
5 decisions that had been rendered by the Tribunal?
6 A. Excuse me. Would you be so kind as to repeat your question.
7 Q. Yes. What Mr. Obradovic said Mr. Milosevic agreed should be made
8 public, was it the confidential decisions of this Tribunal or the
9 censored parts of the documents?
10 A. I think that he referred to the censored portions of the
12 Q. Thank you. And if you go down approximately seven line from the
13 point that I've just read, there's a sentence. Your Honour, it's nine
14 lines starting from the bottom of the page. It starts with the words:
15 "On the Hayat TV ...," and I will read the sentence to you. It says
17 "On the Hayat TV -- thank you very much. On Television Hayat,
18 journalist Senka Hadzovic displayed the censored parts of one of the
19 documents in question, and there was no inquest into this criminal act of
20 violating the Tribunal."
21 Now, can you tell us perhaps what Ms. Hadzovic had shown -- or
22 let me take one step back. Can you please tell this Chamber who
23 Ms. Hadzovic is?
24 A. Ms. Hadzovic is a journalist from Bosnia and Herzegovina
25 that's -- that's all.
1 Q. And could you briefly explain what Ms. Hadzovic had shown on
2 Hayat TV and which Mr. Obradovic is referring to.
3 A. She spoke about the content of some of the transcripts of the
4 military defence council, and he asked her at that moment if she knew
5 that those transcripts had been declared confidential pursuant to
6 decisions. And then he also added, in that connection, that as a civil
7 servant he was duty-bound to protect such decisions, regardless of who
8 had formulated the national security interest and why that interest was
9 defined and in what way. He also added that being a civil servant, he
10 would protect and defend any -- every policy of the state, irrespective
11 of its value, because he is -- he was a civil servant, and he says so
12 here in that gathering and in that transcript.
13 Q. We come back to the issue of this civil servant in a moment. But
14 staying on that page for the time being, if you look at the same page and
15 the next sentence, Mr. Obradovic comments on the content of that
16 document, or the purported content of that document. And he says this:
17 "This document was on the military intervention of the units of
18 the Yugoslav Army for which, from what I could see, I presume on the
19 Niksic Plateau, in which eight members of the Yugoslav Army were killed."
20 Ms. Kandic, is Mr. Obradovic, the civil servant of Serbia
21 referring to the content of those SDC
23 A. Obviously, he is not referring to the decision here. He is
24 talking about the content of documents.
25 Q. Thank you. Can I now ask you to turn to page 93 of this same
1 document, please, 93. And you will recall Mr. MacFarlane asked you a
2 number of questions about that part of the record, and I would like to
3 ask you a few more.
4 Let me -- have you found the page, Ms. Kandic?
5 A. Yes.
6 Q. If I can draw your attention to, again, the statement of
7 Mr. Obradovic, starting with the words: "No, I would not ..." It's the
8 beginning of his statement, and he says this:
9 "No, I would not like to give an answer, as I've simply only just
10 learned from Ms. Hadzovic that she had 40 pages. I think I'm right in my
11 memory, if my memory serves me right, that the document must have been
12 still longer and that it further referred to something else. You have
13 given an explanation, and if things stand the way you've said it, I have
14 nothing to add. You only fail to tell us how you obtained this document.
15 I shan't go into this issue here, but it's as simple as that if you come
16 by a document which has been protected from public eye by The Hague
17 Tribunal, then you are committing an offence of disrespecting the
18 Tribunal, you know."
19 Can you see that?
20 A. Yes.
21 Q. And then a bit further down, approximately five line down from
22 where I've finished, or seven line down, he continues and says this:
23 "If there is something that was protecting in the interests of
24 the states, well, in our interest, my interest as a civil servant, as I
25 rightly named a while ago as I am a civil servant, is to protect this
1 interest, irrespective of who they were defined by and how. This is
2 simply my duty."
3 Now, I think that's the passage you were referring to before, but
4 just to be clear on this, what Mr. -- what Mr. Obradovic was giving a
5 warning to Ms. Hadzovic, what was it, to have disclosed one of the
6 documents that was protected by the protective measures or the existence
7 of decisions of this Tribunal? What was it that he was warning her
9 A. He's talking about the protected documents.
10 Q. And if you can turn, then, to the previous page, please, of this
11 document; it's page 92. And you will see there's a statement attributed
12 to this journalist, Ms. Senka Hadzovic, and this is what she said and
13 what later triggered the warning by Mr. Obradovic. She said this:
14 "I am Senka Hadzovic, journalist of Television Hayat, which
15 Mr. Obradovic called that earlier on, for, as I understood, a
16 manipulation with the short-hand minutes, I came by first and aired on
17 our programme. I should only briefly like to say what I said then. I
18 had extract from those minutes which were some 40 pages long. Please
19 note that I did not have the complete material, for a number of pages
20 were missing, and none of the bits were censored."
21 So perhaps to clarify matters once again, Ms. Kandic, what
22 Ms. Hadzovic had shown on Hayat Television, was it the uncensored part of
23 one of the protected documents, or was it a decision from this Tribunal?
24 A. I did not see what she showed on television, but here she's
25 referring to the uncensored transcript document. She's not referring to
1 the decision.
2 Q. And do you know if Ms. Hadzovic has ever been prosecuted for a
3 contempt of court for what she's believed to have done?
4 A. No, never. I never heard that she had, and I don't think that
5 she had.
6 Q. And do you know of any complaint or request made by
7 Serbian-Montenegro to this Tribunal or to any other judicial authorities
8 to the effect that Ms. Hadzovic should be prosecuted for disclosing a
9 confidential document?
10 A. There never was anything said. Not a word was publicly said
11 about that. Not even the civil servant, as he calls himself,
12 Sasa Obradovic, said on that occasion that he, as a civil servant, would
13 initiate some proceedings or report the lady journalist, Hadzovic, on
14 that account. No one reacted, no one initiated any kind of proceedings.
15 Q. And perhaps it's clear from the date of the conference itself,
16 but I'd like to confirm that or infirm it, is: Was this information that
17 I've been discussing for some time now with you, the information that
18 Ms. Hadzovic put in the public domain, was that available prior to the
19 publication of Ms. Hartmann's book?
20 A. The very date when this conference was held, and what
21 journalist Hadzovic also says herself, obviously attests to the fact that
22 this was much before the publication of that book.
23 Q. Thank you for that. I'd like to move to something slightly
24 different, but still in the context of this conference that you organised
25 in Belgrade
1 Mr. MacFarlane some days ago, 12 or so days ago. It's at page 416 of the
2 transcript, where he suggested to you that the views expressed by
3 Mr. Stojanovic, Professor Stojanovic, the ambassador of Serbia, and
4 Mr. Obradovic, the civil servant, were, in fact, private or personal
5 views and not official positions. Do you remember that suggestions from
6 Mr. MacFarlane?
7 A. Yes.
8 Q. And do you recall taking the opposite view at page 416-417 and
9 saying that, in fact, they represented their official position? Do you
10 remember that?
11 A. Yes. We invited Professor Stojanovic in his capacity of Defence
12 team leader of Serbia
13 he designated, on behalf of the Defence team, Sasa Obradovic to also
14 participate, and then Sasa Obradovic later said that he was also an agent
15 of the Republic of Serbia
16 they were there in their official capacities, and they were advancing
17 official positions, their official positions, throughout the gathering,
18 apart from the fact that Professor Stojanovic said at a certain point
19 that he advocated the disclosure of these secret documents. In view of
20 the fact that he was participating --
21 Q. Let's take that one step at a time, Ms. Kandic. We will get
22 there. I'll ask you first, perhaps, to turn to page 16 of the same
23 document, please, the transcript of the conference.
24 Is it correct, Ms. Kandic, and I think there's no dispute about
25 that, that the first time any of the participants took the floor during
1 that conference, their capacity, the capacity in which they had been
2 invited and appeared, was mentioned after their names? Is that about
4 A. Yes, that's correct.
5 Q. And here on this page, page 16, there is Mr. Radoslav
6 Dimitrijevic -- Stojanovic, I apologise, who is introduced as ambassador
7 of Serbia
8 Mr. Stojanovic, Professor Stojanovic, was invited to the conference?
9 A. No. At that time, he was ambassador of Serbia to the
11 over, the judgement had been made, and it was normal for him to be
12 introduced as ambassador. But throughout the proceedings, because we
13 were discussing the judgement that had been made before the panel
14 discussion, and we were discussing the facts related to the work of
16 the leader of Serbia
17 himself, just like Sasa Obradovic introduced himself as one of the
18 representatives of the Republic of Serbia
19 of Justice. And Professor Rade Stojanovic says, quote, "We defended the
20 Republic of Serbia
21 ambassador. It's not up to an ambassador to defend his state from
22 criminal charges. He was speaking as the leader of the Defence team. He
23 was saying that they performed their task, their mission, successfully.
24 Q. Well, can I ask you to turn to page 84 of that same document,
25 please, Ms. Kandic. And if I may ask you to look at your own statement
1 towards the end of the page, after the middle of the page.
2 Can you see that, page 84?
3 A. Yes.
4 Q. And if I may ask you to look at the second sentence in that
5 paragraph. You said this:
6 "I do have a remark to make as to the behaviours of the members
7 of the Defence team, Ambassador Stojanovic and his assistant,
8 Sasa Obradovic."
9 Is it the case, Ms. Kandic, that as you pointed out a moment ago,
10 you were addressing these two individuals as -- or in their capacity as
11 members of Serbia Defence team, is that the way you approached them, or
12 was it any different?
13 A. Well, you see, what I am saying there, I'm saying
14 Ambassador Stojanovic and his assistant, Sasa Obradovic. That was said
15 in a casual way. Sasa Obradovic was no assistant to
16 Ambassador Stojanovic, but it is customary, when somebody is an
17 ambassador, regardless of his other titles and positions, that he be
18 addressed as an ambassador. It's a matter of courtesy and custom.
19 De jure at that time, he was ambassador, but de facto and in that panel
20 discussion, he was speaking and we were listening to him as somebody who
21 was leading the Defence team of Serbia
22 Q. And when you addressed Mr. Stojanovic or, for that matter,
23 Mr. Obradovic, as members of the Defence team, did either or both of them
24 protest and say, No, Ms. Kandic, we are here in a private, not an
25 official, capacity? Did either of them suggest that?
1 A. No, precisely because that matter was never in dispute. There
2 was no question about that. They were invited, and they participated as
3 members of Serbia
4 Q. And I think you've explained it already, but on one occasion, at
5 least, you remember that Mr. -- Professor Stojanovic expressed a personal
6 view, and he made it clear, when he expressed that view, that he was, on
7 that particular point, talking in his private capacity; is that correct?
8 A. Yes, once. But even then, you see, I think that when somebody
9 like Professor Stojanovic says, This is my personal view, it's not the
10 same as any private person says it. He was a professor of the
11 Law Faculty, he's one of the highest representatives of the state.
12 Ambassadors never have the right to express their personal views. And
13 Sasa Obradovic expressed it best when he said, I am a civil servant, and
14 it is my duty to serve the interests of the state, no matter who and how
15 defined them. If Milosevic had put him in that position, he would have
16 been formulating Milosevic's positions and defending his views. That's
17 what he was trying to say.
18 Now, the question is whether national security interests are a
19 sufficient reason and whether a state should seek, at all, protective
20 measures for such military documents. He did not even broach that topic.
21 If he had been asked to burn some of these documents, Sasa Obradovic
22 would have, I suppose.
23 Q. I'm going to take you to those passages. Could you turn to
24 page 33, please. And I'll ask you to focus on the statement of
25 Mr. Radoslav Stojanovic. He says this:
1 "I was directly prompted by the intervention on the opinion of" -
2 that would be Judge Al-Khasawneh - "by the associate of the Humanitarian
3 Law Centre, Ms. Orlovic about the bit that there are edited parts of the
4 documentation delivered to The Hague Tribunal and that the International
5 Court of Justice simply did not take this into considerations."
6 In this particular instance and in other parts of the conference,
7 Ms. Kandic, did Mr. Stojanovic in any way try to hide the existence of
8 confidential decisions rendered by this Tribunal in relation to the
9 documents we've been talking about, the SDC records?
10 A. No, no, not for a moment did he try to conceal that. Nobody ever
12 Q. And if you look at the next paragraph, it starts with the word:
13 "Personally ...," and it goes on to say:
14 "Personally, I can say this was unnecessary, but what is
15 important in this case and where Al-Khasawneh is not right is that these
16 parts were blacked out not to hide information from the International
17 Court of Justice, nor any other court, for that matter, but to hide from
18 the applicant, that is, Bosnia and Herzegovina, against which we were
19 preparing our defence."
20 Well, first let me ask you this: Was that the paragraph that
21 you -- or the statement that you referred to earlier today, where you
22 indicated that Mr. Stojanovic had specifically indicated that he was
23 speaking in a personal capacity? Is that the statement you were
24 referring to?
25 A. Well, this passage from his statement that you read out, I'm not
1 sure that he was saying that in his private capacity. He's debating the
2 dissenting opinion of Judge Khasawneh, and he's saying that he
3 personally, as a member of the team, holds such and such a view. But I
4 don't understand this as his opinion as a private person, unrelated to
5 his leadership of the team, the legal team. He was just saying what they
6 were guided by in seeking protective measures. They wanted to hold back
7 from Bosnia and Herzegovina certain things. And he did not say that in
8 so many words, but I understood him to mean that it was meant to be kept
9 not only from Bosnia and Herzegovina, but also from the public. He was
10 saying that they were not trying to keep it from the Court; just from
11 Bosnia and Herzegovina. But I believe that it was also meant to be kept
12 from the public.
13 Q. Can you move to page 36, please, of the same document. You'll
14 see there's a statement that is attributed to you. It starts on page 36,
15 and I'll ask you to turn to page 37 of this document. That's the next
16 page. And I'll ask you to look towards the bottom of the page. It's ten
17 lines from the bottom, there's a statement starting with the words: "I
18 cannot help looking back ..."
19 Your Honour, it's on the extreme left of the paragraph.
20 Have you located it, Ms. Kandic?
21 A. Yes.
22 Q. You said this, so that you have the translation in Serbian:
23 "I cannot help looking back at the censored parts of the minutes
24 of the Supreme Council of Defence sessions and the explanation of
25 Professor Rade Stojanovic that these censored parts of the minutes were
1 censored so that the other party, the applicant, could not be allowed to
2 see them."
3 Let me just stop there for a second.
4 Did Mr. Stojanovic in any way take issue with your suggestions
5 that some of the parts of these documents had been censored? Did he say,
6 That's not the case, or not?
7 A. Sorry, what was the question?
8 Q. Well, perhaps I'll ask you the question after I've read the next
9 sentence. It may assist you. You went on to say this:
10 "These documents had been edited. They had been partially
11 censored. Above all, they were hidden from the eyes of the public, and
12 this is a basic fact. And what was important for you from the Serbian
13 Defence team was to request for these papers to be unveiled and that we
14 can be sure and know for certain what is contained in these documents."
15 Well, first let me ask you what you were trying to communicate
16 from -- to Mr. Stojanovic, and I will ask you next about his reaction.
17 A. I told Professor Stojanovic that what he said, namely, that they
18 had only asked for the military documents to be kept from the applicant,
19 that is, Bosnia-Herzegovina, I said that by requesting that, they
20 practically also requested for these documents to be kept from the
21 public. And then I said they should have asked for these documents to be
22 made public. And in his reply, he said, Well, I did.
23 Q. Well, I will just read out the reply, since it's just below. He
24 said this:
25 "I did request this, asked those who stated to the contrary."
1 Let me ask you this as a question: Did Mr. Stojanovic in any
2 way contradict or take issue with the truth and accuracy of what you had
3 said in your own comment, in particular, about the fact that these
4 documents had been censored?
5 A. No, no.
6 Q. Did he give you any warning that you may be committing contempt
7 or that you should be careful about your statement?
8 A. No.
9 Q. Did he in any way seek to hide or deny the fact that Serbia
10 sought and obtained protective measures from this Tribunal in relation to
12 A. No, no.
13 Q. And this conference took place in June of 2007. Have -- has the
14 position of Serbian official changed, in the sense that, have they
15 suddenly or at any time started denying having sought and received those
16 measures from the Tribunal?
17 A. No. They were no longer discussing it, they were no longer
18 giving any statements. After the judgement, that was no longer a topic
19 for the authorities.
20 Q. And you've been asked questions about -- well, first let me ask
21 you whether they -- at any stage, whether any state official of Serbia
22 denied that these measures had been sought and granted by the Tribunal in
23 relation to the SDC
24 that this happened?
25 A. No, there was no denial by anyone.
1 Q. And you've also been asked a few questions about matters of
2 cooperation. Do you recall that, those questions, cooperation of states
3 with the Tribunal? Do you recall those questions, Ms. --
4 A. Yes, yes.
5 Q. From your interactions with Serbian authorities on these
6 occasions, or others, if you had any others, did you ever hear from any
7 state official a complaint on their part about the content of
8 Ms. Hartmann's book or article? Did you ever hear that?
9 A. No, never.
10 Q. Did you ever hear from any of them that they would reconsider
11 their position vis-a-vis the Tribunal because of Ms. Hartmann's book or
13 A. No.
14 Q. And I'll just ask you to take the bundle of documents that the
15 Prosecution has given to you a moment ago. It's a bundle of six
16 document. Do you still have that with you?
17 A. Yes.
18 JUDGE MOLOTO: Are you going to be long?
19 MR. METTRAUX: It may be perhaps a good time for the break,
20 Your Honour.
21 JUDGE MOLOTO: We'll take a break and come back at half past
23 Court adjourned.
24 --- Recess taken at 12.01 p.m.
25 --- On resuming at 12.31 p.m.
1 JUDGE MOLOTO: Yes, Mr. Mettraux.
2 MR. METTRAUX: Thank you, Your Honour.
3 Q. Ms. Kandic, will you recall that just before the break, we were
4 discussing about an area of cross-examination of cooperation by states
5 with this Tribunal, and you had indicated to my colleague - that's at
6 page 33 of the transcript of today - that you had a general sense about
7 those issues, but not a detailed one. And I would like to read to you a
8 particular provision that pertains to this matter of this Tribunal, and
9 then I'm going to ask you a few questions about that.
10 It's Article 29 of the Tribunal's Statute, and it's called
11 "Cooperation and Judicial Assistance," and there's a first paragraph that
13 "States shall cooperate with the International Tribunal in the
14 investigation and prosecution of persons accused of committing serious
15 violations of International Humanitarian Law."
16 And then there's a paragraph 2 which says:
17 "States shall comply, without any undue delay, with any request
18 for assistance or an order issued by a Trial Chamber."
19 And then it goes on to give examples.
20 Ms. Kandic, are you aware that under the statutory system of this
21 Tribunal, cooperation with the Tribunal is a matter of duty or
22 obligations of states to cooperate with the Tribunal, and were not a
23 matter of discretion? Are you aware of that fact?
24 A. Yes, I'm aware of that fact, but I also know that during
25 Milosevic, the state of Serbia
1 Q. Well, now if we can turn to tab number 2 of the Prosecutor's
2 bundle of document. If you can take that bundle; it's the one with the
3 pale-green numbering. I think it would be the one on your right,
4 Ms. Kandic, the one under your book, the one given to you by the
6 And the document I'm interested in is the document that is put to
7 you, in part. It's an address of Mr. Serge Brammertz, the Prosecutor of
8 this Tribunal. It's dated the 4th of June, 2009. And I'll ask you to
9 turn again to page 2. Do you have that page?
10 There's a paragraph just below those that were read to you by the
11 Prosecutor, and it reads like this:
12 "Since my last briefing of the Council, Serbia has made
13 additional progress in its cooperation with my office. The large
14 majority of requests for assistance have been complied with, including
15 requests for access to documents in archives. As senior leadership
16 trials ongoing, and others will start soon, we hope that this trend will
18 Is what the chief Prosecutor of this Tribunal saying there --
19 does it suggest that, in fact, cooperation on the part of Serbia
20 improved rather than deteriorated in the past year or so?
21 A. Yes. He says that there is additional progress.
22 Q. And you've also been asked about decisions, and you were asked
23 particularly the number of decisions rendered by this Tribunal, in
24 relation to confidential orders and so on and so forth, particularly at
25 page 18 of the transcript today, and I'd like you to look at another
1 bundle, if you may, the bundle of documents that I have given to you.
2 Can you turn to the other bundle, please. And I'll ask you to go under
3 tab number 5 of that bundle.
4 JUDGE MOLOTO: We don't have a tab number 5.
5 MR. METTRAUX: In yours, Your Honour, I apologise --
6 THE WITNESS: [Interpretation] Neither do I.
7 MR. METTRAUX: It would be number 4 in your binder, Your Honour.
8 Q. Ms. Kandic, do you have in front of you a decision? It's a
9 decision from the Milosevic trial. It's dated the 23rd of September,
10 2004, and it's called "Second Decision on Admissibility of Supreme
11 Defence Council Materials." Do you have that?
12 A. Yes.
13 Q. Can I ask you perhaps to turn to the next page, the page 2, and
14 I'll ask you to look under the sentence: "Noting the following ...," and
15 there's number 1. Can you see that? I'll read out to you so that you
16 have it in Serbian. It says this:
17 "The Trial Chamber ordered, in its confidential decision on
19 Rule 54 bis, issued on 30 July 2003
20 of Serbia
21 and, B, the Prosecution to maintain, on a confidential basis, the
22 portions of the minutes for which Serbia
23 protection, and to use them in proceedings before the Trial Chamber only
24 during closed session, transcripts of which were not to be sealed and not
25 disclosed to the public."
1 Does it seem from this public decision, Ms. Kandic, that the
2 Tribunal itself had publicised the fact that the Government of Serbia and
4 pursuant to Rule 54 bis in relation to portions of the minutes of the
6 A. Yes, it is, absolutely. That is the way I interpret it as well.
7 Q. And under letter B, if you can stay in the same paragraph, it
8 says that:
9 "The Prosecution to maintain on a confidential basis the portions
10 of the minutes for which Serbia
11 Can you tell me, in this particular order of the Chamber, what is
12 the Chamber ordering should remain confidential; is that the content of
13 the minutes or the existence of the decision which they've rendered?
14 A. The way I interpret it, it is that the content should remain
15 confidential and under protective measures.
16 Q. And when you say "the content," do you refer to the content of
17 the decision or the content of the SDC
18 A. I mean the transcript.
19 Q. Then if you can move to the paragraph 2 of that same document, it
20 goes on to say this:
21 "The Trial Chamber ordered, in its confidential ninth decision on
22 applications, pursuant to Rule 54 bis of Prosecution and Serbia and
25 B, the Prosecution to maintain, on a confidential basis, the portions of
1 the stenographic notes for which Serbia
2 protection, and to use them in proceedings before the Trial Chamber only
3 during closed session, transcripts of which were to be sealed and not
4 disclosed to the public."
5 Now, focusing again on the little letter B, what is the
6 Prosecution ordered to keep confidential; is it the portion of the
7 stenographic notes of the SDC
8 a decision by the Tribunal?
9 A. It is stated quite clearly what the Chamber is saying. It is the
10 stenographic notes for which Serbia
11 so stenographic notes.
12 Q. And if we can move on to the third paragraph of this short
13 decision, it says this:
14 "Confidential order regarding the Supreme Defence Council
15 materials, issued 16 July 2004
16 the Registry of the International Tribunal to furnish the accused, his
17 legal associates, the amicus curiae, and the Prosecution with copies of
18 the 'protected version' of the SDC
19 accused, his legal associates, the amicus curiae, and the Prosecution to
20 maintain on a confidential basis the portions of the SDC material that
21 had been granted protected motion and to use them," it goes over the
22 page, "in proceedings before the Trial Chamber only during closed
23 session, transcripts of which were to be sealed and not disclosed to the
25 Again, I have the same question here, but in relation to the
1 amicus curiae, the accused, the Registry, the legal associate, and the
2 Prosecution. What were they ordered by the Trial Chamber to keep
3 confidential in relation to those protective measures? Was that the
4 existence of Tribunal decisions or the content of the redacted portions
5 of the SDC
6 A. The decision refers to the content of the redacted records of the
7 supreme council of the military, i.e., the Supreme Defence Council.
8 MR. METTRAUX: Your Honour, perhaps to expedite things, we'll
9 simply indicate for the record there is a similar decision of the same
10 date, 23rd of September, 2004, called "First Decision on Admissibility of
11 Supreme Defence Council Materials."
12 THE WITNESS: [Interpretation] I apologise. My monitor no longer
13 displays -- displays the transcript, the proceedings of the --
14 MR. METTRAUX:
15 Q. Earlier today, and to some extent the first time you came to this
16 Tribunal, you were asked questions about what exactly was discussed in
17 the public, and I refer in particular to today's transcript of page 7 and
18 8 and page 22. Do you recall those questions, Ms. Kandic?
19 A. Yes, yes.
20 Q. Could you tell me if it was in the public domain that there were
21 confidential decisions from this Tribunal providing protective measures
22 in relation to the records or notes of the SDC and other military files?
23 Is it something that was in the public domain before the publication of
24 Ms. Hartmann's book?
25 A. People said, when the representatives of Serbia and Montenegro
1 went to The Hague
2 argumentation to corroborate their claim -- actually, why they were
3 asking for protective measures to be granted for specific documents.
4 Q. So perhaps -- I'm not sure you've answered the entire question,
5 but perhaps I put it -- my question was too long, and perhaps I can put
6 it that way. Was the fact that they were confidential decisions of this
7 Tribunal concerning the SDC
8 mean prior to the publication of Ms. Hartmann's book. Yes or no?
9 A. Of course, of course, it was known. This question did not open
10 up any new chapters or broach any new questions. I mean, this was all
11 well known.
12 Q. And was it also known in the public that the applicant or the
13 moving party that has sought those measures in relation to SDC records
14 and military files was Serbia
15 that in the public domain at that same time?
16 A. Yes, yes, it was in the public domain.
17 Q. Was it also in the public domain at that same time, prior to the
18 publication of Ms. Hartmann's book, that the measures had been granted to
19 protect Serbia
20 the public?
21 A. It was known in the public that Serbia had undertaken various
22 measures in order to protect herself before the International Court of
24 Q. And was it known to you or to others in the NGO or human rights
25 community in Serbia
1 national security? Is that something you knew at the time or not?
2 A. I believe that as of the year 2000, there was talk about it,
3 there had been texts about it, and that people started writing about the
4 need for Serbia
5 to pay heavy reparations to Bosnia and Herzegovina.
6 Q. And these public discussions that were going on at that time
7 about all those matters, were they solely limited to NGO types, human
8 rights people, or was there a broader public discussion in the media and
9 in other circles; academic circles, for example?
10 A. I remember these texts, written by those who had participated in
11 preparing the response or the defence of the Republic of Serbia
12 frequently adduced their arguments to show why it was so important for
14 so that Serbia
15 in that context, as one of the reasons why Serbia needed to be defended
16 using all available means, was -- one of the instruments was the
17 intimidation of the public by reparations, although in the application,
18 the applicant never asked for any reparations.
19 As far as NGOs are concerned, we focused on --
20 Q. Ms. Kandic, perhaps my question was not very precise, and I
21 apologise if that's the case. My question was a bit different.
22 You've indicated that there were, indeed, public discussions
23 among NGOs and members of victims group, human rights group. My question
24 is whether similar discussions were ongoing in other circles, and in
25 particular, for instance, whether there were similar discussion in the
1 public or, insofar as you know, in academic circles.
2 A. No, there were no debates in academic circles. There were
3 roundtables, panels, discussions -- no, there were no panels,
4 roundtables, and discussions. But occasionally one could read texts or
5 hear the views of individual jurists who were known to be very close to
6 the previous regime and maintained some links with the new authorities as
7 well. So one could hear some jurists, some faculty professors, who spoke
8 how Serbia
9 that could be heard, voices of jurists as well, but they were associated
10 with this new Defence team of Serbia
11 of humanitarian international law, experts who put forward their views
12 and positions, explaining why Serbia
13 defence secured by referring to the -- to the trial before the
14 International Court of Justice.
15 Q. And perhaps now focusing on the media, IWPR, "New York Times,"
16 Hayat Television, I think it was called, was there also references in the
17 media, discussions in the media, at the time about these matters, the
18 protective measures that were granted on the SDC and military file
19 records? Was that discussed in the press, insofar as you know and can
21 A. Well, yes. I remember an excellent journalist of ours,
22 Slobodan Kostic, who wrote about it -- about it, and on Radio Free Europe
23 there was frequent reference to it. The Institute for War Reporting from
25 citing numerous individuals and their opinions, starting with human
1 rights activists up to people who participated -- were involved in the
2 Defence of the Republic of Serbia
3 Bosnia-Herzegovina as well.
4 Q. And did that occur prior to the publication of Ms. Hartmann's
5 book, or after, or both, insofar as you know?
6 A. I am talking about what had happened, had been written, and was
7 being said prior to the publication of the book, and immediately after
8 the judgement was rendered, just as this panel on the 29th of June, 2007
9 which was held in Belgrade
10 Q. And you were asked by my colleague earlier today about your
11 acquaintance with the contents of certain documents. And there's one
12 particular document I'd like to ask you about. It's the personal file of
13 Mr. Ratko Mladic. Have you ever seen this document and its content?
14 A. No, I have never seen it.
15 Q. When you expressed views and opinions about your belief about the
16 content of these SDC
17 official of the Serbian government come to you to suggest that, in fact,
18 the documents that you were referring to were not what you believed them
19 to be?
20 A. Today, at the beginning, I quoted Professor Vojin Dimitrijevic,
21 who, although not asked by the lady journalist, said that, I thought --
22 namely, he was quite certain, that I was actually referring to the
23 records of the Supreme Defence Council when I said that the judgement of
24 the International Court of Justice had not brought justice. I also had
25 occasion to speak with Professor Rade Stojanovic, but he and others would
1 always say that the state had to defend itself. And Professor Stojanovic
2 would also say that the documents needed to be published.
3 I had occasion to speak with the former foreign minister of
5 them to tell me what the redacted portions of the record contained, but I
6 always said that I suspected that they contained facts, evidence, which
7 would indicate or reveal Serbia
8 primarily the commission of the genocide in Srebrenica. No one has told
9 me, Oh, come on, that is not correct, something else is there. No one
10 ever said anything of the kind. No one ever said that my suspicions were
12 Q. Thank you for that. And today again at page 42 and following,
13 you were asked a number of questions about your relationship with
14 Ms. Hartmann and her involvement in your centre. Do you know why
15 Ms. Hartmann left her job as a journalist to become a spokeswoman of the
16 Office of the Prosecutor? Do you know what her motivations were behind
17 this career choice?
18 A. Well, she was unable to work in Serbia, in Belgrade
19 leave the country. Now, why she worked less as a journalist is something
20 I really don't know. I consider her a brilliant, top journalist, and I
21 thought it only natural when -- that she should have been appointed a
22 spokesman of the OTP, because I thought that there was not a single
23 journalist more knowledgeable in terms of what was happening in the armed
24 conflict in the former Yugoslavia
25 assistance to the Prosecution, so that that didn't surprise me. But I do
1 not know what reasons she was guided by when she ceased to be a
2 journalist and accepted this position.
3 Q. Well, let me ask you this, then: Do you know if the success --
4 do you know if the success of this Tribunal was at all important to her
5 when she worked for this institution for approximately six years? Do you
6 know if that was relevant at all for her?
7 A. She's a person who had travelled a lot and visited all the crime
8 sites, a person who eye-witnessed many things. She had met with many
9 victims. She had great, great knowledge of what had transpired, and she
10 always wrote based on facts, on the basis of things she had seen,
11 herself, or had carefully researched on the ground. It is my deep
12 conviction, and there was no need for me to ever ask her in so many
13 words. She was somehow inseparable from what was going on. And what
14 seems particularly important to me, she was really the right person to
15 help in establishing the facts about what had happened. Many chose
16 careers in the ICTY because of the challenge. She worked at the Tribunal
17 because she was emotionally involved as well and sympathised with the
18 people in the former Yugoslavia
19 many of the victims. She is in some ways like me and other people who
20 are working in my field. It's very important for us to establish the
21 facts, because then there would be less room for lies and
22 misinterpretations. I think she was one of the most dedicated persons
23 ever to work in the Office of the Prosecutor of the ICTY, and the ICTY in
25 Q. And since you've continued to have personal contacts and
1 professional contacts with Ms. Hartmann since those days, do you know if
2 her views of the importance of this Tribunal, in particular, has ever
3 changed, or does she still have the same position as you've described a
4 moment ago?
5 A. I think that she has a great belief in the ability of the
6 international system of justice to do good, and between international
7 institutions of justice -- sorry, without international justice
8 institutions, there could be -- there could have been no progress on the
9 regional level, the kind of progress we are seeing today.
10 MR. METTRAUX: Your Honour, I have only one very short area of
11 re-examination left, and I would like to go into private session, if we
13 JUDGE MOLOTO: May the Chamber please move into private session.
14 [Private session]
11 Pages 495-496 redacted. Private session.
16 [Open session]
17 THE REGISTRAR: We are in public session, Your Honour.
18 JUDGE MOLOTO: Thank you.
19 Yes, Mr. Mettraux.
20 MR. METTRAUX: At this stage, Your Honour, I have no further
21 questions for the witness.
22 And I'm most grateful to you, Ms. Kandic.
23 There is be a number of housekeeping matters before we close the
24 case that will be raised by my colleague, Mr. Khan.
25 JUDGE MOLOTO: Thank you, Mr. Mettraux.
1 [Trial Chamber confers]
2 Questioned by the Court:
3 JUDGE GUNEY: [Interpretation] Ms. Kandic, you said that society
4 has the right to know the truth, and you said that is a sacred principle.
5 You said that society has the right to know the truth, but is that a
6 limitless right? Otherwise, the right that a society has to know the
7 truth, does it have -- does it also tally with a right for a protective
8 measure in order not to prevent justice from being administered?
9 A. When war crimes are at issue, when a state is concerned, a state
10 that had been publicly qualified as a criminal state, and I mean Serbia
11 under Milosevic, then I believe the right of citizens and the right of
12 victims to find out what exactly that state under Milosevic had done, had
13 undertaken, and all that it had been involved in, such as in Srebrenica,
14 when a genocide was committed, prevails, and that I believe that
15 protective measures over certain documents may be taken as measures if
16 they do not limit the right of individuals to find out about the actions
17 of those who led the state when it is accused of the gravest, most
18 heinous crimes.
19 I am following the LiveNote. When it says "do not limit the
20 right of individuals," it should also say "society," the right of the
22 JUDGE GUNEY: [Interpretation] Thank you very much.
23 JUDGE MOLOTO: Thank you.
24 Any questions arising, Mr. MacFarlane? Mr. Mettraux?
25 MR. METTRAUX: Not from our side, Your Honour.
1 JUDGE MOLOTO: Thank you so much.
2 Madam Kandic, thank you so much for coming to testify at the
3 Tribunal. This brings us to the end of your testimony.
4 You are excused, you may stand down, and please travel well back
6 THE WITNESS: [Interpretation] Thank you.
7 [The witness withdrew]
8 JUDGE MOLOTO: Mr. Mettraux, Mr. Khan.
9 MR. KHAN: Mr. President, we're grateful.
10 That almost concludes the case of the Defence, save just for a
11 few administrative matters.
12 Your Honours have been seized with an application to admit
13 documents from the Bar table. Your Honours kindly decided that
14 yesterday, and so I don't need to go into that issue.
15 JUDGE MOLOTO: Yes, but let's just -- has the Defence rested?
16 MR. KHAN: No, Your Honour. As I said, at the moment I will
17 close the case when I've dealt with these matters, with your leave.
18 Your Honour, the second matter is we have filed today, whilst you
19 were sitting in this last session, a response to the Prosecution's second
20 submission, and so of course that's part of the Court record and will
21 have to be determined, of course, before I close the case and before this
22 matter is finally concluded.
23 The third issue is that we have been notified by the CLSS that
24 they are in the throes of preparing a final transcript for Mr. Joinet's
25 testimony. And, Your Honour, in due course we would ask you to refer to
1 that, although the closing brief, when it's submitted, will refer to the
2 transcript that the parties have in their possession. But in due course,
3 when you're deciding this matter, we would ask that you have cognizance
4 and refer to the final transcript that CLSS is preparing.
5 The final point, which is the really germane issue, before I
6 formally close my case, the case for Ms. Hartmann, arises out of your
7 decision of the 19th of May.
8 Your Honours are, of course, aware that on numerous occasions,
9 the Defence has sought to go behind this prosecution and find out about
10 the investigations, and that led to an application to interview the then
11 amicus investigator, who is now robed as the amicus prosecutor, and that
12 was refused, as was the application to subpoena my learned friend in his
13 previous capacity as an investigator. Your Honours very kindly, in their
14 decision -- in Your Honours' decision on the 19th of May, at footnote 25,
15 put forward a proposal that may be a halfway house between what the
16 Defence wanted and the concerns put forward by the amicus prosecutor.
17 At footnote 25, addressing the Defence concerns, Your Honours
18 stated that the Defence could submit proposed questions for counsel to
19 the Chamber which could pose such questions to the Prosecutor. And,
20 Your Honours, we do have a list of questions which I'd ask to be
21 distributed to Your Honours and my learned friend, and I would ask, as
22 part of the court record, that you do review this and decide --
23 JUDGE MOLOTO: May I just interpose there.
24 MR. KHAN: Of course, of course.
25 JUDGE MOLOTO: You subsequently said the Defence is not going to
1 call Mr. MacFarlane.
2 MR. KHAN: Your Honour, what I was saying is there was an
3 application to subpoena Mr. MacFarlane. That was refused; that was
5 JUDGE MOLOTO: Yes.
6 MR. KHAN: In the course of Your Honours' determination
7 dismissing the Defence application to subpoena, Your Honours, at
8 footnote 25 --
9 JUDGE MOLOTO: I understand that, Mr. Khan. But subsequent to
10 that, the Defence notified the Chamber that it does not intend calling
11 any further witnesses beyond Madam Kandic.
12 MR. KHAN: Indeed, indeed.
13 JUDGE MOLOTO: So that excluded Mr. MacFarlane, didn't it?
14 MR. KHAN: Well, Your Honour, that was a natural corollary to
15 Your Honours' decision of the 19th of May, and we're fully respectful of
16 that. So we're not intending to call Mr. MacFarlane. What we're seeking
17 to do is to give effect to the option that Your Honours proposed, that
18 Your Honours would consider asking questions.
19 JUDGE MOLOTO: That was proposed as an alternative to you putting
20 him in the box as calling him, but now you decided when you wanted to
21 call him, and then when you said that you are not going to call him any
22 longer, that fell through.
23 MR. KHAN: No, Your Honour, we don't have a power to call him
24 because of the application's being rejected. He is counsel, and we had
25 sought to subpoena him. That was the coercive measure that we had resort
1 to when our invitation that he be interviewed was rejected. So --
2 JUDGE MOLOTO: That's not how it was put to the Chamber. What
3 was said to the Chamber was that the Defence --
4 [French interpretation on English channel]
5 JUDGE MOLOTO: Anyway, I'm not going to debate it. I've just
6 raised the point.
7 Carry on with your housekeeping.
8 MR. KHAN: Well, Your Honour, of course the record will speak for
9 itself in due course.
10 The position of the Defence, in my respectful submission, was
11 accurately put at the beginning of these proceedings, that we were not
12 seeking to call Mr. MacFarlane. That is not because we waive -- and
13 Your Honour's referred previously to the rights of appeal. It's not
14 because we waived our submission that he was critical and extremely
15 important, because he was the only means by which we could test the
16 focus, an accuracy, and legitimacy of the investigation. We simply
17 declined to call him because we didn't have the power to do so, absent a
18 subpoena. I can't haul him in the witness box. And Your Honours
19 declined that application.
20 And what I'm seeking to do now is the halfway house that
21 Your Honours, yourselves, have put forward; is that we hand up the
22 written questions that we would ask Your Honours, pursuant to your
23 decision of the 19th of May, to address to the amicus prosecutor.
24 Your Honour, we have been -- and, of course, we may well be
25 blamed, because it's never a joyous occasion for the Defence; it's not a
1 popularity contest. And when one has to vigorously and robustly defend a
2 client, of course, a whole raft of criticism can be addressed at counsel.
3 But it gave us no pleasure to make allegations that we are of the view
4 that the fault in this case lies not with this specially-appointed
5 Trial Chamber that issued the order in lieu of indictment; it lay with my
6 learned friend in his previous incarnation as amicus investigator, in
7 failing to properly investigate this manner and failing to properly put
8 the full information to the specially appointed Trial Chamber. Because
9 it is our position that that independent Chamber, if they were seized of
10 all the relevant information that hopefully has been put before
11 Your Honours now, would never have ordered -- given an order in lieu of
12 an indictment in this case.
13 We were not able to challenge this, because the only policemen --
14 the only investigating officer in this case is now robed in judicial
15 garb, and, Your Honour, that's the difficulty.
16 So, Your Honour, without further adieu, perhaps the written
17 questions could be put before Your Honours, and you can consider the
18 application to either grant it and ask that all of the questions or some
19 of the questions or, of course, reject the application, but I can do no
20 more than say that we are referring to the decision of Your Honours of
21 the 19th of May that very specifically put forward this proposal, and I
22 was seeking, with the greatest of respect, however in-artfully, to seek
23 to comply with that direction of Your Honours.
24 With the usher's assistance, perhaps the questions could be
25 distributed. And, Your Honours, there's no objection, of course, for
1 Mr. MacFarlane to be given a copy as well.
2 JUDGE MOLOTO: Thank you very much.
3 If you are done, then, Mr. Khan, the matter will stand adjourned
4 to Friday, the 3rd of July.
5 MR. KHAN: Well, Your Honour, before you do that, with your
6 leave, subject to the determination of the appropriateness of asking
7 these questions, then I do close the case for Ms. Hartmann. I'm
9 JUDGE MOLOTO: Thank you.
10 Sorry. Yes, Mr. MacFarlane.
11 MR. MacFARLANE: Thank you, Your Honours.
12 There were a few issues concerning matters of evidence that I
13 thought ought to be raised, in terms of marking exhibits and things of
14 that sort, so that as counsel finalise the written argument, tomorrow
15 we're in a position to deal with the final package of evidence. And I'm
16 wondering if I might run through a couple of those points to see if there
17 are further directions that are needed today, before we move into the
18 arguments. I'm thinking, in particular, of the 2007 decision of the --
19 I'm thinking, in particular, of a particular decision which I propose to
20 tender and which was the subject of rulings. We might need to move into
21 closed session on that.
22 JUDGE MOLOTO: May the Chamber please move into closed session.
23 You want closed or private?
24 MR. MacFARLANE: Private.
25 [Private session]
11 Pages 505-511 redacted. Private session.
2 --- Whereupon the hearing adjourned at 1.40 p.m.
3 to be reconvened on Friday, the 3rd day of July,
4 2009, at 9.00 a.m.