Tribunal Criminal Tribunal for the Former Yugoslavia

Page 241

1 Thursday, 19 January 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 8.34 a.m.

5 JUDGE KWON: Good morning to everybody. The Chamber has advanced

6 the start of trial for today by half an hour to 8.30 in order to have more

7 time for Defence case, if any; but however, first of all I'd like to hear

8 from the Defence adds to their position in relation to their case.

9 MR. KRSNIK: [Interpretation] Good morning, Your Honour. Very

10 briefly and quickly I shall present the position of the Defence. The

11 joint position at that, so I'm speaking on behalf of Mr. Ivanovic and in

12 my own name.

13 JUDGE KWON: Thank you.

14 MR. KRSNIK: [Interpretation] Continuing in the spirit in which we

15 started this hearing and after consultations with our clients and after

16 having heard the evidence called by the Prosecution, the Defence came to

17 the conclusion that there is no need to call any further witnesses

18 because, in relation to the witness, Mr. Tomljanovich, we actually have

19 nothing to elaborate on. We consider it superfluous, this particular

20 evidence, unnecessary; and, in fact, we have nothing to oppose.

21 As for the evidence given by Mr. Cameron, we consider it to be

22 useful and we think that this Prosecution witness actually confirmed, in

23 part of his testimony he even clarified, what the Defence possibly wanted

24 to prove through its own witnesses. So basically these are the main

25 reasons why we consider it unnecessary to call further evidence in the

Page 242

1 spirit of flexibility, in terms of calling new witnesses on our side, that

2 is.

3 On the other hand, in line with your decisions on admitting

4 evidence without witnesses - I'm talking about documents now - I would

5 kindly ask you to admit these documents because they are actually court

6 documents. In actual fact, these are two decisions of the Blaskic Trial

7 Chamber, the President of that Chamber was His Honour Judge Claude Jorda.

8 These are two orders on protective measures, and through them we wish to

9 show clearly what the Trial Chamber was guided by, very clearly, and they

10 set the rules. This has to do with the evidence of General Morillon, the

11 former UNPROFOR commander; and Messr Jean Pierre Thebault, the high

12 representative of the United Nations; they both testified in the Blaskic

13 case. The Court clearly reached its decision to have a closed session,

14 but the Court also set the clear-cut rules in terms of protecting the

15 content and that neither the Prosecution nor Defence -- nor the Defence

16 can ever disclose any of this evidence, but there's no need for me to go

17 on about this at length.

18 In contrast, their names were not protected, that is to say it is

19 a matter of public knowledge that they testify, but the content of their

20 testimony is protected. We are showing this because the testimony of

21 Mr. Van Kuijk never had this kind of supporting decision on protective

22 measures. Had this been necessary, the Chamber certainly would have

23 issued this kind of separate order. Therefore, we assert, we assert - and

24 that is clearly based on these documents which I kindly ask you to admit -

25 that protective measures in the case of Witness van Kuijk actually never

Page 243

1 existed. I have copies for all the parties involved and for yourselves,

2 Your Honours, so please kindly have a look at this and could you please

3 have this admitted into evidence. This is all I had to say and I thank

4 you for your patience.

5 JUDGE KWON: Could those two documents be handed over to the

6 Bench, and in the meanwhile we would like to hear from the Prosecution.

7 MR. AKERSON: No objection to the admission of these documents

8 whatsoever.

9 [Trial Chamber confers]

10 JUDGE KWON: Very well. We'll admit them. Those will be given

11 numbers.

12 THE REGISTRAR: Yes. Thank you, Your Honour. The first decision

13 dated 12th of May, 1999, will be allocated the reference number D1. The

14 second decision dated 30th of May, 1990, will be given the reference D2.

15 Thank you, Your Honour.

16 JUDGE KWON: Then shall we go into closing arguments, starting

17 from the Prosecution.

18 MR. KRSNIK: I'm so sorry.

19 JUDGE KWON: Mr. Krsnik.

20 MR. KRSNIK: [Interpretation] I'm very sorry. I can't see the

21 transcript on this screen, so if the gentleman could assist me. I have no

22 transcript, so perhaps it's a technical error. Thank you.

23 JUDGE KWON: Yes, Mr. Akerson, you can start.

24 MR. AKERSON: May it please the Court. On November 18th, 2004,

25 Hrvatski List published two articles which sensationally and dramatically

Page 244

1 exposed the identity of an ICTY witness as well as the content of his

2 closed-session testimony. The articles brazenly challenged the authority

3 of this Tribunal and its ability to protect the confidentiality of its

4 witnesses, and in so doing it interfered with its administration of

5 justice and its contempt of Court.

6 I just want to remind Your Honours that we are going to be showing

7 slides, so if you could have your monitors turned on to computer evidence.

8 The facts of this case are largely undisputed or I should say are

9 undisputed. In December of 1997, Johannes van Kuijk, a Dutch peacekeeper,

10 testified in the Blaskic case in closed session and his identity was never

11 publicly revealed --

12 JUDGE BONOMY: When you say the facts are not in dispute, I have

13 to make reference to a point which seems fundamental and you could perhaps

14 at an early stage clarify it for me. You produced a document yesterday

15 which is samples of common evidence between the closed-session testimony

16 and the ICTY witness statement. How much of this material is actually in

17 the article?

18 MR. AKERSON: The article publishes most of the witness statement

19 and -- I think I discussed this in the closing argument and I will address

20 this issue, but the witness statement merely in its entirety is published

21 in the Hrvatski list article.

22 JUDGE BONOMY: Thank you.

23 MR. AKERSON: Marijacic was the editor-in-chief of Hrvatski List,

24 and he was the author of the articles in question. In the main article he

25 published the identity of van Kuijk by name. He published his statement

Page 245

1 which is flagrantly touted on the cover of the issue as a secret document

2 in bold, large, and red font. He referred to the fact that the witness

3 had testified secretly, and the words "secret document" are peppered

4 throughout this issue. In the accompanying document Markac identifies

5 Markica Rebic, and Rebic states that he provided Hrvatski List with both

6 the transcript and statement of van Kuijk. He states that he knew the

7 documents were protected. If you look on your screen you can see that

8 clause.

9 "Are these protected documents and what do they represent?"

10 "They are protected documents and I am aware of the possible

11 consequences of them being revealed to the public. Such documents have

12 occasionally appeared previously, but their publication might be regarded

13 as obstructing the work of the Office of the Prosecutor or the Court,"

14 which is almost exactly tracking the language of interfering with the

15 administration of justice, obstructing the work of the Office of the

16 Prosecutor or the Court.

17 In April, Marijacic and Rebic are indicted and a short time after

18 that they both defiantly repeat their admissions. On March 7th, Marijacic

19 gives an interview to the Croatian press agency HINA and in this article

20 he reaffirms that he knew he was disclosing a protected ICTY witness

21 statement and a witness. And if you can see the slide. A short time

22 later on May 5, 2005, Marijacic dedicates an entire issue of Hrvatski List

23 to this indictment.

24 JUDGE BONOMY: I've lost your timing there. You say in April they

25 were indicted and then in March Marijacic gave the interview to HINA. Are

Page 246

1 these dates accurate?

2 MR. AKERSON: The indictment is issued in April. Shortly

3 thereafter Mr. Rebic gives an interview to the HINA news agency. In May

4 about a week after that, an issue of Hrvatski List is dedicated to the

5 indictment.

6 MR. AKERSON: Right, the transcript says "March 7," it should

7 say --

8 JUDGE BONOMY: It also says "Marijacic," and it was Rebic.

9 MR. AKERSON: Yes, that is correct. It's -- Rebic on April 27th

10 gave an interview to HINA.

11 In the May 5th issue of Hrvatski List Marijacic states that --

12 when handing us the document to read at Hrvatski List in November last

13 year, Mr. Rebic said that he knew it concerned a protected witness and

14 testimony "Having pondered at length the pros cons of publishing it, we

15 opted for the latter, publishing the document at this time," and then it

16 goes on.

17 The next quote Marijacic adds: "In addition, in Croatia -- in

18 addition, in Croatia, we have earlier been getting away with revealing

19 protected witnesses. For example, immediately after," and then they,

20 Marijacic lists another protected witness in the Blaskic

21 trial. "Immediately after that protected witness had testified in secret

22 in The Hague against Croatia and General Blaskic, many in the Croatian

23 media had published his identity and also the content of his testimony."

24 These basic facts form the crux of its case. Now, in order to

25 enter a conviction against Marijacic and Rebic, this Chamber must find

Page 247

1 that the Prosecution has proved under Rule 77(A)(ii) three things: One,

2 that Rebic and Marijacic knowingly and willfully interfered with the

3 administration of justice by disclosing information relating to those

4 proceedings, in knowing violation of a court order. And I'll take each of

5 these three elements in turn.

6 First, the Prosecution must establish beyond a reasonable doubt

7 that Rebic and Marijacic knowingly and willfully interfered with the

8 administration of justice. Now, by intentionally violating a court order,

9 which they admit they do, Rebic and Marijacic interfered with the

10 administration of justice. The Prosecution would submit it's a per se

11 interference with the administration of justice when they intentionally

12 interfere or intentionally violate a court order. Now, the public and

13 defiant nature of their challenge to try and --

14 JUDGE BONOMY: And you -- sorry, Mr. Akerson. You say that that

15 applies even though the order is serving no useful purpose.

16 MR. AKERSON: I don't believe the order is serving no useful

17 purpose. I would contest that.

18 JUDGE BONOMY: Were you unable to say what that purpose was?

19 MR. AKERSON: I will get to that in my closing -- I mean, I can

20 address it right now. The purpose is that we have a trial dealing with

21 Croatian witnesses and a newspaper that brazenly and defiantly challenges

22 our witness protections. In this case, the most serious protection we can

23 afford a witness undermines our ability and your ability for us to bring

24 in witnesses and ensure them that their confidentiality will be respected.

25 JUDGE BONOMY: That's a different matter. That argument I

Page 248

1 understand. My question to you is: What useful purpose was this order

2 actually serving at the time the publication took place?

3 MR. AKERSON: Are you referring to the oral order to move into

4 closed session testimony?


6 MR. AKERSON: That order was decided by the court based on the

7 arguments of the parties. I think at this point you can't second-guess

8 that order --

9 JUDGE BONOMY: The publication is seven years later. I want to

10 know what useful purpose at the time of publication that order was

11 actually playing or had it just been left there and everyone had forgotten

12 about it?

13 MR. AKERSON: But the issue at stake is are you --

14 JUDGE BONOMY: Not seven, four years later. Sorry.

15 MR. AKERSON: Clearly the content of his testimony was protected

16 and they published the content of his testimony; that's undisputable.

17 Now, the question is, was his identity protected? And I think --

18 JUDGE BONOMY: No, no, no, no, no. That's not the -- the question

19 is -- it goes further than that. The identity issue's a separate one.

20 What purpose was being served at that stage by protecting the content of

21 the evidence?

22 MR. AKERSON: In 1997?

23 JUDGE BONOMY: No, in 2004 when the alleged breach takes place.

24 MR. AKERSON: Well, the Prosecution would submit that it doesn't

25 matter -- even if it did matter --

Page 249

1 JUDGE BONOMY: That's a separate argument. Tell me what useful

2 purpose the order was actually fulfilling as at the date on which the

3 publication took place. Why was it still in force? Or indeed was it

4 still in force?

5 MR. AKERSON: It has to be enforced until the -- nobody can

6 lift -- it would be our submission that no one except for a Trial Court

7 can modify that Trial Court's order. I mean, what -- I think the argument

8 that you're raising, Your Honour, is that Trial Chamber orders can be

9 second-guessed by anyone if they can look at a transcript and determine

10 for themselves that they think the order was wrong. Let's presume the

11 order was entirely wrong from the beginning in this particular case, does

12 that mean that newspapers can look at it and say: That order of the Trial

13 Chamber was wrong, therefore we don't have to obey it. I mean, I think

14 that's the principle at stake that you're suggesting.

15 JUDGE BONOMY: That's a separate matter. What I would like --

16 still would like an answer to is the question: What useful purpose that

17 order actually was serving as at November 2004? Or would -- if the

18 Prosecution had seriously reviewed the position, would they have had it

19 revoked by then?

20 MR. AKERSON: But it -- from our perspective, Your Honour, it

21 doesn't matter because what is --

22 JUDGE BONOMY: So you can't answer the question. That's fine.

23 Carry on.

24 MR. AKERSON: The public and defiant nature of the challenge to

25 the Tribunal's ability to ensure witness confidentiality is a serious

Page 250

1 interference with the administration of justice. Witnesses face deadly

2 risks by coming in to give testimony at this Tribunal and often they can

3 only testify confidentially. Meaningful and enforced confidentiality

4 measures are critical. Hrvatski List publicly challenged these

5 protections, serving to undermine, one, the Croatian public's confidence,

6 and thus seriously interfered with the administration of justice and

7 seriously interfered with our ability -- in the period of time before a

8 large Croatian case is going to be tried at this Tribunal, our ability to

9 bring in witnesses and assure them that their confidentiality measures

10 will be protected and enforced --

11 JUDGE BONOMY: Do we simply have to take your word for that?

12 MR. AKERSON: On what -- on what issue?

13 JUDGE BONOMY: About the actual interference, you say this, or the

14 breach caused with the administration of justice? You're saying it

15 actually interfered with the conduct of a later case that was about to

16 start at that time.

17 MR. AKERSON: I --

18 JUDGE BONOMY: What's the basis -- where's the evidence for that?

19 MR. AKERSON: The evidence is the issue of the newspaper itself

20 which openly and brazenly challenges the authority of the witness

21 protection scheme and puts it into the marketplace of Croatia, in

22 newsstands all over Croatia. I think that is res ipso loquitur, it speaks

23 for itself.

24 The next element that the Prosecution has to prove is that Rebic

25 and Marijacic disclosed information relating to the proceedings. The

Page 251

1 proceedings in this case are the Blaskic proceedings, and I think that's

2 indisputable. Van Kuijk is a witness in the Blaskic case, the orders that

3 apply in this hearing are from the Blaskic case. Everything pertains to

4 the Blaskic case.

5 The last element is that the Prosecution must establish that Rebic

6 and Marijacic disclosed information knowingly violating a court order, and

7 I think that's where this case turns. There are two court orders: One is

8 the oral order to proceed under closed-session protections on December

9 16th, 1997; and a second written order on December 1st 2000. I'll take

10 those in turn.

11 You have in front of you on the screen the oral orders, and you

12 can see that it's repeated frequently and in fact on every page of the

13 transcript where it is in closed session. It repeats "this is closed

14 session testimony, closed session testimony."

15 Now, Rebic and Marijacic clearly knew about the oral order to

16 proceed in closed session. Rebic admits delivering the physical

17 transcript to Mr. Marijacic. Marijacic admits to receiving the

18 transcript. The transcript contains repeated references to the fact the

19 testimony was closed. Now, Rebic and Marijacic violated this order very

20 clearly by publishing van Kuijk's statement. As I've submitted --

21 JUDGE KWON: Mr. Akerson, for the sake of the Bench, if you could

22 wrap up your evidence for the fact that Mr. Rebic disclosed this

23 transcript to Mr. Marijacic. What evidence do you have? What evidence

24 has been tendered to the Court?

25 MR. AKERSON: That Mr. Rebic --

Page 252

1 JUDGE KWON: Disclosed the transcript to Mr. Marijacic.

2 MR. AKERSON: We have there, one, the article on November 18th,

3 2004, in which it's published and they admit that in an interview. If you

4 put that up on the screen. Interview of Mr. Rebic, he says: "What are

5 these two documents?" There is a witness statement of van Kuijk and his

6 testimony and I'm handing them to Hrvatski List. And then he goes on to

7 say -- or the interview goes on to say: "Are they protected?" And he

8 says, "Yes, they are protected. I know they're protected." And you've

9 seen the quote before where she says "is obstructing." And he says, "Yes,

10 it could be seen as obstructing the work of the Tribunal." So you had

11 that admission, first.

12 Now, if you want corroboration, they've actually published the

13 witness statement. So that corroborates his own admission, "I've turned

14 over these two documents and we've decided to publish the statement." So

15 it's corroborated by the fact they did publish his statement. Then on

16 April 27th, Mr. Marijacic -- I'm sorry, Mr. Rebic gives an interview to

17 HINA where he confirms: "Yes, I turned it over and I knew what I was

18 doing and I knew it was protected." What's important to note is that

19 Mr. Rebic at that point has gone from just being somebody who turns over a

20 transcript and a witness statement to somebody who is now employed by

21 Hrvatski List. So if it's the suggestion of this Chamber that it's not

22 reliable that this publication had printed their own admission that it was

23 turned over and they were in possession of it, you would think that

24 Mr. Rebic would not want to be associated with the publication that had

25 defamed him and made up false accusations about whether he turned these

Page 253

1 over. Mr. Marijacic also confirms, "Yes," this is on May 5th in a second

2 Hrvatski List, Mr. Marijacic confirms it and says: "Yes, it was turned

3 over to us by Mr. Rebic." There were no retractions issued by Hrvatski

4 List, no subsequent publications. So it's very clear on the face that it

5 was an honest and accurate statement, and I think that's the only logical

6 inference that can be made.

7 JUDGE KWON: So in sum, you are asking the Chamber to rely on

8 those newspaper articles to convict the accused, which the accused

9 themselves do not admit?

10 MR. AKERSON: I don't think there is any real challenge to the

11 authenticity of these articles, but, yes, the crux of this case is formed

12 on November 18th, the edition of Hrvatski List, then the HINA Article

13 that's on April 27th, the May 5th article, and the fact that there is no

14 retraction issued in each the subsequent editions of these articles.

15 JUDGE KWON: Thank you, Mr. Akerson, please go on.

16 JUDGE BONOMY: Where is the connection between Mr. Rebic and the

17 management of Hrvatski List?

18 MR. AKERSON: In the May 5th edition of Hrvatski List in the

19 header it now lists Mr. Rebic as, I think, editor-at-large.

20 JUDGE BONOMY: And just one other matter. Is there a principle in

21 a case involving two accused that a statement by one of them without the

22 presence of the other is not evidence against that other? In other words,

23 where you accuse Mr. Marijacic and the person he interviews and you base

24 that accusation on what Mr. Marijacic writes, can you actually use that as

25 evidence against Mr. Rebic?

Page 254

1 MR. AKERSON: I would submit that you can when it's adopted by

2 both parties in subsequent publications.

3 JUDGE BONOMY: Thank you.

4 JUDGE KWON: Yes --

5 MR. AKERSON: We were talking about the oral order and the fact

6 that Mr. Rebic and Mr. Marijacic knew that the oral order existed. It

7 protected the content of van Kuijk's testimony. They published his

8 witness statement, and so the issue for this Court is: Does publishing

9 the witness statement actually amount to publishing the content of the

10 testimony. And you've argument about this earlier in this trial, and the

11 question is: Does -- when you move into closed as a Chamber, are you

12 protecting just the literal transcript or are you protecting the content

13 of what that witness testifies to? And it would be the Prosecution's

14 submission that the only logical inference can be that the content of what

15 he's testifying to is protected. And I would say that if I was interested

16 as a newspaper in publishing protected witness information that he

17 testified to, a witness's testimony that was in closed session, it's a

18 much more effective vehicle to publish his statement when it mirrors his

19 testimony than the actual transcript. The transcript is long, it's filled

20 with objections, there's lots of side-bars, it doesn't follow in a logical

21 sequence. The witness statement, on the other hand, is short, it's dense,

22 and it contains all of the key areas that the witness is going to testify

23 to or what is relevant about that witness.

24 And Your Honours are well aware that many examinations, direct

25 examinations, the witness statement is actually used as the template for

Page 255

1 examining the witness, so they often mirror each other. And certainly you

2 have evidence in front of you in this case that are largely similar and

3 you have evidence in front of you that the intent, that the intent of

4 Mr. Rebic and Mr. Marijacic was to publish his protected testimony because

5 they say that. And they did it by publishing his witness statement which

6 is a much more effective vehicle than publishing his transcript in this

7 case. But the bottom-line principle is that: When you move into closed

8 session with a witness, what he testifies to is protected, no matter what

9 form it occurs in, whether it is a summary or a statement which they know

10 to contain the same information. So by publishing his witness statement

11 in this case --

12 JUDGE ROBINSON: Why do you say it's a more effective vehicle?

13 MR. AKERSON: I'm sorry, I didn't hear that part.

14 JUDGE ROBINSON: Why do you say publishing the witness statement

15 is a more effective vehicle than publishing the transcript?

16 MR. AKERSON: In a statement, a witness may say: I saw a

17 particular event. When he testifies, he might get asked a question, there

18 may be an objection, and so the transcript will then have two pages of

19 argument about the objection. The witness then, when he's refreshed about

20 the question, may say: I don't remember the question, can you rephrase?

21 The transcript may go on for pages before the witness answers. So what

22 you have oftentimes, and I would say most often, is many more pages of a

23 transcript to cover the same information, whereas the witness statement,

24 it's down to one paragraph usually, or a very short, concise detail of

25 that information.

Page 256

1 JUDGE ROBINSON: Perhaps I was misled by the epithet "effective."

2 Please proceed.

3 MR. AKERSON: Well, based on what I just said, I think it's very

4 clear when they published his statement they violated the oral order of --

5 oral order on Mr. Van Kuijk that he proceed in closed session.

6 The last issue about the oral order is whether or not they

7 violated the oral order by disclosing his identity, and that's an issue

8 that Defence counsel has just raised. The question is: Do -- when

9 there's an oral or a written order to proceed in closed session, does that

10 automatically guarantee the witness's -- or does that automatically

11 protect the witness's identity? And I think the case cited by Defence

12 counsel supports our proposition. It automatically supports the content

13 of his testimony. It usually protects his identity, but not always. In

14 the case of General Morillon, the Trial Chamber listed him as a witness.

15 First they listed a number of witnesses, including General Morillon, by

16 name and said: "If you would like protective measures, please apply to

17 the Court." So his identity was revealed first and the request of the

18 witnesses to seek protection measures was later. So in that particular

19 case, it's very, very clear that the only thing that was protected was the

20 content of General Morillon's testimony, not his identity.

21 Very different from the factual situation you have. In this case,

22 Mr. Van Kuijk's identity is never revealed in open session, not on one

23 occasion his identity revealed in open session. The attorney and Judges

24 do not use his name and they're very careful to refer to him as "witness"

25 when arguing whether or not he should testify in closed session. Then

Page 257

1 when they proceed to and they are in closed session, they then use his

2 name. So it's very clear they are intending to protect his identity. So

3 on these facts with this transcript that was in the possession of

4 Mr. Rebic and Mr. Marijacic, it was very clear that the identity of

5 Mr. Van Kuijk was protected and it was protected for the seven years after

6 that until Hrvatski List published it. They knew it, they state it,

7 admit -- they admit it in their publications, the first and second

8 publications. You also have evidence introduced by Mr. Tomljanovich that

9 back as far as 1997, 1998, Mr. Rebic was advising others that with these

10 closed-session witnesses the identities are protected as a general rule.

11 I'm just saying this: Your Honours are far more familiar with

12 closed-session procedures than I am, but closed session is the most

13 extreme form of protection that a witness can get. The screen is pulled

14 down, the public is precluded from seeing anything about a witness. So

15 the general rule has to be that closed session -- the intent of closed

16 session is to protect the witness's identity, unless it is clear that the

17 contrary is intended.

18 JUDGE BONOMY: One -- there is one peculiarity, though, that

19 perhaps you can deal with. How was the witness listed? How was he

20 identified in any list of witnesses?

21 MR. AKERSON: The witness was not listed in the original witness

22 list; he was brought up as an addition to the witness list in open court

23 on the record. And he was always referred to in that context as "this

24 sensitive witness."

25 JUDGE BONOMY: But you know that that in itself may be an

Page 258

1 exceptional circumstance, that witnesses who are protected -- whose

2 identities are protected are usually given pseudonyms.

3 MR. AKERSON: I think in this case he was later given a pseudonym,

4 but at this time he did not have a pseudonym and the record doesn't have

5 any record of a pseudonym. He was always referred to as a "sensitive

6 witness" or a witness, until they moved into closed session and then he

7 was referred to by name.

8 JUDGE ROBINSON: You say that you think that later in the case he

9 was given -- he might have been given a pseudonym.

10 MR. AKERSON: Yes, I --

11 JUDGE ROBINSON: That would be very helpful to me if that were so.

12 MR. AKERSON: Later on he was assigned a pseudonym, yeah, that's

13 my understanding.

14 JUDGE KWON: Do we have that evidence?

15 MR. AKERSON: No, but I would have no problem with that -- it's a

16 court record.

17 JUDGE ROBINSON: Yes, but then you must show us.

18 MR. AKERSON: I only saw it yesterday when the Court had asked

19 whether there were additional protective measures. I -- what I --

20 yesterday I had spoken to the senior trial attorney that had been involved

21 in that case, and this was a very brief conversation that took place on a

22 break, but it seemed that the pseudonyms in the Blaskic case were for the

23 purpose of the submissions at the end of the case so that you could refer

24 to the testimony because there wasn't the pseudonym structure in place

25 during the time of his testimony.

Page 259

1 JUDGE ROBINSON: I -- speaking for myself, I would like to have

2 that clarified.

3 MR. AKERSON: I will be happy to provide that to --

4 JUDGE ROBINSON: I would be very interested in seeing that,

5 because it would help me to decide whether the -- there was an intention

6 to protect the identity of the witness.

7 MR. AKERSON: I'll be happy to provide that, but -- we would

8 submit that the record, the oral order in the transcript is very clear

9 that the intent of the parties was to protect his identity, and that's

10 what was in the possession of Mr. Rebic and Mr. Marijacic. That's what

11 they had.

12 JUDGE BONOMY: At the moment, I have to say it's not as clear to

13 me as it obviously is to you. This seems to me to be a rush job that was

14 done without much thought at the time, unlike the way in which the orders

15 in relation to Morillon and Thebault were handled. And then I wonder if

16 you are going to suggest that there are other examples of witnesses who

17 are public officials out with -- residing only out with the former

18 Yugoslavia through which this sort of order would normally be regarded as

19 covering identity.

20 MR. AKERSON: Your Honour, when you say, "this seems to be a rush

21 job," are you referring to the decision --

22 JUDGE BONOMY: Yeah --

23 MR. AKERSON: -- to award Mr. Van Kuijk protection measures?

24 JUDGE BONOMY: He seemed to arrive without warning. Is that

25 wrong? Is that ...

Page 260

1 MR. AKERSON: He was discovered by the Prosecution in 1997 at a

2 late stage and was added -- the argument that takes place --

3 JUDGE BONOMY: How was he added -- if he didn't have an identity,

4 how was he added?

5 MR. AKERSON: What happened is that the Prosecution said: We have

6 a sensitive matter we would like to discuss in closed session. There was

7 argument that was conducted in closed session. His name at that time --

8 this was before the date that Mr. Van Kuijk testified. His name was never

9 revealed in that discussion, and in fact the argument centred on providing

10 the Defence with a redacted witness statement of the sensitive material in

11 that particular case. But he was added on the fly as a newly discovered

12 witness. Within a few days he was testifying. All the argument that took

13 place referred to him as: "Witness protecting his identity." And the

14 only time his identity was ever revealed was when they went into open

15 session when he actually testified.

16 JUDGE KWON: Just a second, Mr. Akerson.

17 [Trial Chamber confers]

18 JUDGE ROBINSON: Mr. Akerson, you are fairly well-resourced. I

19 would suggest that you have one of your assistants investigate the matter

20 as to whether they -- the witness was later given a pseudonym so that you

21 can bring that so our attention.

22 MR. AKERSON: Yes, Your Honour, we can do that at the break.


24 MR. AKERSON: Shall I proceed?

25 JUDGE KWON: Please go on, Mr. Akerson.

Page 261

1 MR. AKERSON: So I just discussed the evidence regarding the oral

2 order, so I'm now going to move to the written order of December 1st,

3 2000.

4 Now, if you can place the order of December 1, 2000, on the

5 screen, please. The operative order in this case was issued against two

6 newspapers where -- one of which is where Marijacic worked at the time.

7 And the order, the operative order, states that "the publication of

8 statements or testimonies of the witness concerned and of any protected

9 witness shall cease immediately and states that any publication of these

10 statements or testimonies shall expose its authors and those responsible

11 to be found in contempt of the Tribunal."

12 So under Rule 77(A)(ii), the Prosecution has to prove knowing

13 violation of this order. So the first question is: Does this apply to

14 Mr. Van Kuijk because it applies to protected witnesses. Now, the Appeals

15 Chamber has recently ruled that he was a protected witness; so that's not

16 an issue. And we know that Mr. Marijacic published Mr. Van Kuijk --

17 JUDGE KWON: Did the Appeals Chamber say so? There were

18 protective measures, but I don't think it said Mr. Van Kuijk was a

19 protected witness.

20 MR. AKERSON: I'll have to review the exact wording of that. It

21 would be our submission anyways when they say "a protected witness,"

22 they -- it's inclusive anyways, and the clear intent was a broad

23 expression to try and stop the leak of information that was occurring at

24 the time with the two newspapers.

25 Mr. Marijacic published the statement, so that's clear. Mr. Rebic

Page 262

1 admits delivering the material to a newspaper. Clearly we knows that --

2 and they state that they deliberate about publishing the material. So he

3 is collaborating in the process of the publication. So he would fit into

4 the last phrase "those responsible for publication."

5 So the only legitimate issue the Prosecution would argue that

6 could be raised by Rebic and Marijacic is whether they had knowledge of

7 this order --

8 JUDGE KWON: But, Mr. Akerson, Mr. Rebic was not indicted for

9 having collaborated in publication of these statements. He was indicted

10 for disclosing these materials. So how then you can say that Mr. Rebic

11 has violated the third order of 1st of December, 2000, in terms of --

12 consider -- given the context of the indictment?

13 MR. AKERSON: Yes. In the indictment he's charged with disclosing

14 information, which violates this order. Now, this order says: "Those

15 responsible for the publication of statements or testimony," so you have

16 the publisher plus those responsible. By him disclosing to a newspaper

17 and the clear evidence that you have from their own statements in the

18 newspaper is that the intent of him providing this to a newspaper is that

19 it's going to be published. So he is, in effect, he is publishing by

20 disclosing. So he disclosed the information to a publisher which invokes

21 this order. That's the submission of the Prosecution on that point.

22 So the question becomes: Did Mr. Marijacic and Mr. Rebic have

23 knowledge of this order? Now, we know that Mr. Marijacic worked Slobodna

24 Dalmacija in December 2000 as an editor. You've heard evidence of Terry

25 Cameron and you've seen issues that are in front of you, the issues of

Page 263

1 Slobodna Dalmacija, that the cease and desist order, this very order, this

2 one of December 2000 was directed on and served on Slobodna Dalmacija

3 after they had published over four days the witness statement of a

4 protected witness, a different protected witness. Now, Slobodna Dalmacija

5 then published the order in its entirety in an issue and then dramatically

6 pronounced that they were defying that order and ran a series of articles

7 until the end of December. So this starts on November 26th and goes until

8 the end of December.

9 In addition to publishing the order in its entirety, they

10 repeatedly refer on the cover of Slobodna Dalmacija to the existence of

11 the order that's been served on them. Articles inside the editions, 22

12 editions in all, reference the order and the protection and the issue of

13 the Tribunal issuing a cease and desist order against this paper. So the

14 only reasonable inference the Prosecution would submit that can be drawn

15 is that Mr. Marijacic read the paper he worked for and he was aware of the

16 prominent story which centred on a cease and desist order served on that

17 paper. And moreover, Mr. Marijacic contributes, as you have a table in

18 front of you, many articles that are related and oftentimes are in

19 juxtaposition to the published, protected transcript. So he's

20 participating in this series of articles.

21 So Mr. Marijacic's knowledge of this December 1 order, the

22 Prosecution would submit --

23 MR. KRSNIK: [Interpretation] I don't know if it is civil to

24 interrupt a closing argument, but I do have to, if you allow me.

25 JUDGE ROBINSON: Only if you think the evidence is being

Page 264

1 misstated, otherwise I would suggest you wait for your closing remarks.

2 MR. KRSNIK: [Interpretation] Yes, Your Honour. I will wait then.

3 MR. IVANOVIC: [Interpretation] I would like to say that a

4 conclusion was wrongly drawn that Mr. Marijacic wrote anything about that

5 testimony. You have all the material in front of you and you can see that

6 not a single text written by Mr. Marijacic refers to the testimony of that

7 other witness.

8 JUDGE KWON: I think the Defence will have time to rebut that

9 allegation.

10 So Mr. Akerson, please proceed.

11 MR. AKERSON: So the inference, the only logical inference, the

12 Prosecution would submit, that this huge story that runs over six weeks in

13 this newspaper centred around the disclosure of protected witness and

14 his -- and the publication of his protected testimony. And Mr. Marijacic

15 worked for that newspaper; he would have clearly known of this order.

16 And I would just also point the Court towards the Appeals Chamber

17 judgement in the Aleksovski contempt case, that even if this Court -- if

18 you want to draw the inference that he was working for a paper and he was

19 writing articles that -- they weren't directly commenting on the

20 testimony, but they were related to the protected witness and they were

21 clearly in a position that showed that he was participating in the series

22 of articles. But if you only want to infer that he was aware generally of

23 this order - and it's hard to make any other inference but that because

24 this story runs for six weeks, this is a huge paper -- this is a huge

25 story and a huge paper - the willful blindness issue in the Aleksovski

Page 265

1 case says: If a person chooses to blind himself of an order, he cannot

2 escape its provisions. So either -- I mean, the Prosecution would submit

3 it's clear that the logical inference is that he's got actual knowledge of

4 this order but, in addition to that, even if he has only a general

5 knowledge or a general memory of this order, he can't blind himself to

6 that fact in 2004 when they're considering whether to publish the

7 protected witness testimony. And he knows generally of this order. He's

8 charged with having actual knowledge of it under the willful blindness

9 doctrine if he chooses just not to refresh his memory. And it's easy for

10 him to refresh his memory because he worked for the paper. He knows how

11 to get a copy of the edition that has the order printed in its entirety.

12 JUDGE ROBINSON: What do you say was his precise work for the

13 newspaper?

14 MR. AKERSON: He was an author. He was writing articles --

15 JUDGE ROBINSON: He was a contributor?

16 MR. AKERSON: He was contributing articles. He contributed 11

17 articles during that series. And as I said, the articles were articles

18 about the witness who is a protected witness, and they are oftentimes

19 right next to -- you can look at the editions and see because the position

20 of these articles is, I think --

21 JUDGE ROBINSON: Was he a part of the management of the newspaper?

22 MR. AKERSON: We don't have any evidence that the banner of the

23 newspaper does not indicate that he was part of management. All we know

24 is that he was authoring articles, and in fact he stipulated that he was

25 employed by Slobodna Dalmacija at the time. What his official title was,

Page 266

1 I don't know. I do know -- I don't think it's really relevant because he

2 was writing articles. He is a journalist. He was writing articles at the

3 time. In a series of articles about an order -- and what's important is:

4 Did he have knowledge of the order? And no matter what capacity he's

5 working in -- if he's a journalist and his paper is focussed on this court

6 order, I think the logical inference is that he's reading his own paper,

7 especially with a huge story like this, a dramatic story where the paper

8 is challenging the Tribunal's very authority publicly. Here's the order

9 they served on us. We're not respecting it. We don't think they have the

10 authority to -- to tell us to stop publishing protected witness

11 information. I mean, it is a big story for them. I think the only

12 reasonable inference can be that he was reading -- he was reading and

13 following that story in his own paper.

14 JUDGE ROBINSON: And he was himself writing articles about the

15 order, you say, Mr. Akerson?

16 MR. AKERSON: He did not write an article about the order; he

17 wrote articles about the witness that was the subject of the order. And

18 if you look at your screen, you can see his name as the author of the

19 article. This is the protected witness, and so what you have is one

20 article that has the transcript of the testimony of the protected witness,

21 which is done each day because the paper has said: Until we publish the

22 entire transcript, we're going to continue to publish on a daily basis the

23 transcript of this witness because we don't recognise the cease and desist

24 order served on us by the Tribunal. And here Mr. Marijacic is writing an

25 article about that same witness in the same pages right next to the

Page 267

1 transcript. So it's clear -- I mean, the inference you can make, I think

2 the easy inference you can make is that he would have read and known about

3 the order, and that's the only thing that we're trying to draw out of

4 this. The only inference we need to make is that he's aware of this

5 witness, this witness is the subject of this series of articles, he would

6 have been aware of the article served on the paper.

7 JUDGE BONOMY: Mr. Akerson, were proceedings taken against these

8 newspapers at the time for contempt of court?

9 MR. AKERSON: Can I go into closed session -- or private session

10 on that particular question, Your Honour?

11 JUDGE KWON: Yes. We will go into private session briefly.

12 [Private session]

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 268

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 JUDGE KWON: Yes. We are now in open session.

23 MR. KRSNIK: [Interpretation] Your Honours, the indictment was

24 brought. It is public, exclusively against Mr. Jovic, whose lead counsel

25 I am myself. Mr. Marijacic was not mentioned, neither in the

Page 269

1 investigation or the indictment. What kind of internal investigation are

2 we talking about --

3 JUDGE BONOMY: That's all I think needs to be explored on that at

4 the moment.

5 The other question I have for you, Mr. Akerson, is this: Even

6 assuming this order did apply to Mr. Marijacic, what does it add to the

7 closed session order?

8 MR. AKERSON: It's totally independent. It is not a cumulative

9 order that -- each order stands on its own and a violation of each of

10 these orders would constitute contempt. One is an oral order, one is a

11 written order. They occur at very different times.

12 JUDGE BONOMY: And why was it the Appeals Chamber thought there

13 was no need to revoke that order.

14 MR. AKERSON: Can you place the order back on the screen, please.

15 Your Honour, what you're referring to is that the Prosecution for

16 the ease of this trial had asked the Appeals Chamber to lift the

17 protections on Mr. Van Kuijk so that we could refer to him by name. So

18 they had to determine what protections were in place and what they needed

19 to do to lift those protections. Now, when we looked at this December 1

20 order, they saw that this order pertains to protected witnesses. When

21 they determined that by lifting the protections of the closed session

22 order he thus is no longer protected, this order no longer applies and

23 they don't have to change the terms of this order on its face in order to

24 lift those protections. Those protections are lifted automatically.

25 JUDGE BONOMY: That's not what the order says.

Page 270

1 MR. AKERSON: I -- if -- we are referring to, Your Honour, on page

2 4 of the order, the first paragraph that starts with "noting." I think

3 that's what Your Honour is referring to. And then the next provision

4 starting with "finding." And the finding paragraph, I think, is where the

5 Court is annunciating this principle, that there are no protective

6 measures granted under the order that may be varied pursuant to the

7 Prosecution's request in its motion because it's just a standing order

8 applying for protected witnesses. So if the status of protection is

9 lifted off a witness, that order does not need to be varied.

10 JUDGE BONOMY: Mr. Akerson, you surely should have said that and

11 made it clear to a simple-minded person like me that that was the

12 rationale for the decision. All it says is that there were no additional

13 protective measures granted under the order of the 1st of December, 2000,

14 that may be varied. So for some reason, they seem to think that that

15 order did not grant a protective measure that could be varied.

16 MR. AKERSON: I would respectfully disagree with Your Honour. I

17 think that's not the -- my interpretation of this is that they were

18 deciding what they needed to change on the face of the order, and they

19 decided they didn't need to change anything because once his status as a

20 protected witness was lifted, that order can remain intact and yet the

21 protections on that order were lifted. It's not -- it could be phrased as

22 tightly as it could, but I think that's what they're saying.

23 JUDGE BONOMY: It would be so simple to say that finding that --

24 now that we have determined that the witness is no longer protected or

25 that his testimony transcripts may be referred to publicly and in open

Page 271

1 session. There's no need to vary this, but that's not what it says,

2 Mr. Akerson.

3 MR. AKERSON: I agree it would have been preferable if they had

4 used that simple language. But they did not. I don't think it's clear

5 either way, Your Honour. I think if you wanted to draw the inference of

6 the interpretation that you're suggesting, I don't think that's clear

7 either from the language. I think just the language of the order doesn't

8 lend itself to an absolute interpretation either way, but I think the best

9 conclusion that could be drawn from that provision is the one that I'm

10 suggesting here today.

11 JUDGE KWON: Proceed, Mr. Akerson.

12 MR. AKERSON: I have just discussed the knowledge that

13 Mr. Marijacic had of the December 1, 2000, order and how it applies to

14 him. I'm going to very briefly talk about Mr. Rebic's knowledge. You

15 have in evidence three articles in front of you, November 18th, 2004, May

16 5th, 2005, and the HINA article of April 27th, and they all very clearly

17 point to the fact that there was a deliberate discussion and collaboration

18 between Mr. Rebic and Mr. Marijacic about the application of these

19 protection orders and whether or not to go ahead and publish.

20 Mr. Marijacic in particular states that we had a discussion and we decided

21 to go ahead and publish. And in the original article they said they opted

22 to publish as well, so there's a clear indication that they had discussed

23 and then decided to go ahead and publish, in defiance of the court order.

24 JUDGE BONOMY: Well, which order? Do you say that they mentioned

25 a third order in that discussion?

Page 272

1 MR. AKERSON: My argument -- my submission to you, Your Honour, is

2 that because Marijacic clearly knew of the December 1, 2000, order, that,

3 when they had a discussion about a singular topic, which is what orders

4 apply to this and should we go ahead and publish in defiance of those

5 orders, of course they would have discussed the December 1, 2000, order.

6 It's the only thing that was the topic of their discussion. And so Mr.

7 Rebic would have been participating in a discussion about that order.

8 JUDGE BONOMY: That's a serious submission, is it, that we can

9 infer from the fact that -- that they discussed the fact that the evidence

10 was protected and that they would be publishing in defiance of court

11 orders, that we must read into that that the third order was specifically

12 discussed.

13 MR. AKERSON: That's a serious submission, and I think that's a

14 logical inference that can be drawn from that. And if you look at the

15 screen, Your Honour, they not only state that they've delivered it, but

16 they say they've pondered at length the pros and cons of publishing it.

17 They had to have included the only two -- the order that they had specific

18 knowledge of, which is the oral order and the transcript they possessed

19 and the written order of December 1.

20 So I will conclude -- I have discussed now the written order and

21 the oral order and the clear publication of the statement of Mr. Van Kuijk

22 and his identity, how it violates both of these orders. One of the

23 issues --

24 JUDGE BONOMY: Is it -- sorry. Is it arguable that the third

25 order applies only to the two newspapers named in it? I recollect -- now,

Page 273

1 I can't identify the number of it at the moment, but one of the exhibits

2 includes the notification that the Tribunal sent to the Republic of

3 Croatia to intimate the orders on the two newspapers, Globus and Slobodna,

4 and that says that this order relates to these two particular newspapers.


6 JUDGE BONOMY: Now, is it arguable that the order only applied to

7 these two newspapers?

8 MR. AKERSON: I don't think that's a reasonable inference. I

9 think the principle of law is that if someone has knowledge of an order

10 that has a broad provision like this, which expresses a Court's clear

11 intent to protect information, when they have knowledge of that order and

12 their intent is to violate that order by publishing the protected

13 information, that that order then applies to them. It has to apply to

14 them, we would submit.

15 And my final point is --

16 JUDGE KWON: Before you resume, can I clarify this issue. It

17 seems to me that you are arguing on the basis of the closed session order

18 and the 1st of December, 2000, order.

19 MR. AKERSON: Correct.

20 JUDGE KWON: I wonder if this means that you are not any longer

21 seeking to argue on the basis of the first order, that is the first -- the

22 6th of June, 1997 order. So can I take it to be a kind of concession?

23 MR. AKERSON: You can.

24 JUDGE KWON: Thank you. Thank you very much.

25 MR. AKERSON: The issue was raised yesterday about: Is this a

Page 274

1 serious interference, and I think that's the last point that I want to

2 address here today. As I've said, closed session is the most severe --

3 the most serious form of protection this Tribunal can give to a witness.

4 It's where a witness's identity -- everything about that witness is

5 protected. We draw a curtain down so the audience can't see anything

6 about that witness. The public is totally excluded, so its very nature

7 is, in most circumstances, to protect everything about that witness,

8 including his identity.

9 And I want to read a quote from the Aleksovski contempt decision,

10 page 8. This is the Appeals Chamber, which says: "A decision of the

11 Trial Chamber relating to the protection of witnesses, which may be

12 written or oral," that's their language, "may be written or oral is of the

13 utmost importance, not only for the lives of the witnesses, but also for

14 the operations of the Tribunal.

15 "On November 18th, the accused knowingly published the identity

16 and statement of a witness who had received the Tribunal's strongest

17 protections."

18 They openly challenged those protections, and the OTP considers

19 this to be a serious interference with our ability to convince witnesses

20 who are being asked to testify in Croatian cases, in particular, that when

21 they come and we promise them that they will have confidentiality, that

22 that means something, that this Court stands behind it, and we protect

23 those witnesses with every ounce of our ability to do so, and this clearly

24 shows an interference with the Tribunal's administration of justice, and

25 we would therefore ask you to find Mr. Rebic and Mr. Marijacic guilty of

Page 275

1 contempt of court. Thank you.

2 JUDGE KWON: Thank you, Mr. Akerson.

3 Shall we adjourn sometime before we hear from the Defence closing

4 arguments? Do you have anything to clarify? I wonder whether your

5 colleague has brought something to tell us?

6 MR. AKERSON: And I haven't seen it yet, so I will --

7 JUDGE KWON: We'll adjourn for half an hour.

8 --- Recess taken at 9.45 a.m.

9 --- On resuming at 10.20 a.m.

10 JUDGE KWON: Mr. Akerson.

11 MR. AKERSON: Your Honour, I, thanks to the help of the Registry,

12 was able to obtain final list of witnesses in the Blaskic case, which

13 includes pseudonym for Mr. Van Kuijk, and I will distribute these.

14 There's a confidential and a public version, and his identity is protected

15 in both of these lists.

16 JUDGE KWON: Who made the list?

17 MR. AKERSON: This is the final registry list of witnesses in the

18 case.

19 JUDGE KWON: Made by the Registry?

20 MR. AKERSON: Correct. And his -- the pseudonym that was assigned

21 to Mr. Van Kuijk was EE and we've searched the trial transcripts. There's

22 only one reference to Witness EE in the trial, and that's in the Defence

23 closing argument which takes place on July 30th, 1999, and we've searched

24 the judgement of the Blaskic case, and there's no reference to either van

25 Kuijk or EE, just to confirm what's been previously stated.

Page 276

1 And I want to remind the Court that there's already in evidence

2 which is Exhibit P13, which is the Prosecution's ex parte, in camera

3 motion, request for a hearing in respect of the evidence of newly

4 discovered evidence, and that it was a motion by the Prosecution to

5 support its request that Mr. Van Kuijk be added as a witness; he was not

6 previously known to the Defence. That's P13.

7 JUDGE KWON: What's the OTP number?

8 MR. AKERSON: 4, I believe.

9 JUDGE BONOMY: Which tab --

10 MR. AKERSON: Tab 13 would be 2, I think --

11 JUDGE ROBINSON: Would there be anything --

12 MR. AKERSON: Tab 13, volume 2.

13 JUDGE ROBINSON: Would there be anything to indicate that the

14 designation of Mr. Van Kuijk as Witness EE was anything more than

15 administrative action taken by the Registry? Is there anything to suggest

16 that this was confirmed by the Trial Chamber?

17 JUDGE KWON: Or ordered by the Chamber.

18 MR. AKERSON: The fact, Your Honour, that the Defence referred to

19 the witness by the name -- the pseudonym is evidence that it was being

20 used in the trial. It was used in the closing argument. They refer to

21 him not by name but by his pseudonym.

22 JUDGE BONOMY: Can you draw my attention, please, to where on the

23 list of witnesses there is reference to Morillon and Thebault.

24 MR. AKERSON: If you will -- if you can give me one moment,

25 Your Honour.

Page 277

1 [Prosecution counsel confer]

2 MR. AKERSON: Your Honour, what you have in front of you is just

3 the Prosecution witness list. The two witnesses you referred to are

4 Chamber witnesses, and so we'll have to get that list. I have here,

5 Your Honour, the Chamber witness list, but we don't have copies. So we'll

6 have to ask the Registry to make copies for us.

7 JUDGE BONOMY: Does it specifically name both of them?


9 JUDGE BONOMY: Thank you.

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Mr. Akerson, do you know whether this list was

12 made up before the closing arguments?

13 MR. AKERSON: Well, I -- I can't say with a certainty that the

14 list was made before the closing arguments but the pseudonym clearly

15 existed before the closing argument because it could not have been used

16 unless it was in existence.

17 JUDGE ROBINSON: And do you have anything to clarify how that

18 pseudonym came into existence, whether -- with judicial authority or

19 whether it was just an administrative action by the Registry?

20 MR. AKERSON: I think the official court record ultimately was the

21 list of witnesses, as you have it in front of you. I don't have any

22 document which shows how these pseudonyms were assigned. I don't have

23 that in my possession to provide to the Court. But it would be very

24 surprising to me that it was an informal arrangement between the parties

25 and the Defence counsel, just by agreement with Prosecution, had decided

Page 278

1 to assign a pseudonym and used it, because the Court wouldn't have had an

2 idea of who that witness was. There had to have been an official

3 agreement, we just don't have that document in front of us. But we do

4 have -- I mean, it's -- there's almost incontrovertible evidence that if

5 they're using it in the closing argument and everyone understands who that

6 witness is, everyone had to have had the list.

7 JUDGE ROBINSON: Well, what is clear is that during testimony he

8 was not called EE. Am I right?

9 MR. AKERSON: Correct. When Mr. Van Kuijk testified, when they

10 argued in favour of him being allowed to testify in closed session, they

11 just referred to him as "the witness." In closed session they referred to

12 him with his name, but they never used EE at that time. I have copies of

13 the page where he's referenced, and it also further clarifies that it's a

14 Dutch -- it says here: "This was the testimony of Witness EE. It's a

15 Dutch name that I cannot pronounce well," and this is at transcript page

16 5531, so they're referring back to this witness. So it's very clear

17 that's who it is. If I could have this contributed, please. It's very

18 clear that this is van Kuijk, he is van Kuijk, which corroborates the list

19 that you have in front of you, the registry list.

20 JUDGE BONOMY: Was that submission made in closed session?

21 MR. AKERSON: Private session.

22 JUDGE BONOMY: Private session.

23 [Trial Chamber confers]

24 MR. KRSNIK: [Interpretation] Your Honour.

25 JUDGE KWON: Mr. Krsnik.

Page 279

1 MR. KRSNIK: [Interpretation] In the meantime, I have also tried to

2 gather some information, but it's absolutely clear to me now. As you can

3 see, on the secret list from the Prosecution, it is written clearly for

4 the first time in the upper right-hand corner when that was distributed,

5 and that was just before closing arguments. On the 18th September, 1998,

6 it says, and it's absolutely clear to me that before that time there was

7 no use of pseudonym, because it was only received on that date. It is

8 confirmed also by the transcripts --

9 JUDGE KWON: Well, do you have --

10 MR. KRSNIK: [Interpretation] Because --

11 JUDGE KWON: Do you have that date?

12 MR. KRSNIK: Yes, I have here, what the Prosecutor gave to me.

13 MR. AKERSON: If I can clarify.


15 We don't have it --

16 MR. AKERSON: You don't have this document; I'm happy to provide

17 it to you. I went to the senior trial attorney to ask about this list.

18 He provided his own personal copy, and he's got a note in the upper

19 right-hand corner with the date of September 18th, 1998. Now, the closing

20 argument was July 30th, 1999. So it's ten months -- this document in our

21 internal file is handwritten with a date that's ten months before the

22 closing argument. So it would suggest -- I was not going to provide this

23 because it's handwritten. I don't know who wrote this date; it's just

24 from our internal file. But as long as Defence counsel is introducing it,

25 this tends to suggest that this existed at least ten months before the

Page 280

1 closing argument. But I will add, I have never asserted here that at the

2 time that Mr. Van Kuijk testified that he testified with a pseudonym.

3 That's never been our argument. We've never asserted any written or oral

4 pleading.

5 JUDGE KWON: I regret the Prosecution was not able to produce this

6 document during the Prosecution's case, but I'll hear from Mr. Krsnik.

7 Do you have anything further in relation to this?

8 MR. KRSNIK: [Interpretation] Your Honour, if you look at this

9 transcript that was just provided by our learned friend, I've read it - of

10 course my English is not perfect - but it follows very clearly that

11 Defence counsel has trouble with pronunciation, and that's the only reason

12 he's using "EE." That's the first and the last time that EE was used.

13 There is no evidence that this -- these initials were used before or

14 after, at least that's how I understood the English text.

15 And of course, in my closing arguments I will provide you with

16 this copy. I think it would be fair and just for you to see for

17 yourselves what is written in the right-hand upper corner.

18 Another point, Your Honour. I was working at the Tribunal even

19 then. The closing argument took six months to prepare. That was the time

20 allowed, and I am sure that this was purely an administrative measure by

21 the Registry.

22 JUDGE KWON: Mr. Akerson, how do you like the Chamber to treat

23 these documents? What is your position?

24 MR. AKERSON: We would ask that these be moved into evidence,

25 Your Honour.

Page 281

1 JUDGE KWON: At this time?

2 MR. AKERSON: Yes, at this time. They're self-authenticating

3 court records and we think that they assist the court in making a

4 determination in this case.

5 In response to what the Defence just submitted, that Witness EE

6 was just used spontaneously, the record is very clear that if -- in

7 closing argument in an important trial, if this was not agreed upon as a

8 pseudonym that all parties recognised, the Court and/or the Prosecution

9 would have objected to the use of the name. Everyone knew what was going

10 on; it's very clear from the record. I think it's an implausible

11 suggestion to suggest that this was a spontaneous utterance of the

12 witness's name. So I will -- that's my submission on that. I think it's

13 very clear from the record that this Registry list reflected what was

14 known by the parties at the time they made the closing arguments, and you

15 have the date, the informal date, on the Prosecution's file. You can give

16 that whatever weight you want. I was not intending to tender that, but I

17 think the Court should see it because the Defence has raised it and I'll

18 as that this be admitted into evidence as well.

19 But all the evidence you have in front of you suggests very

20 clearly that this is an official pseudonym that was recognised by

21 everybody, including the Court.

22 JUDGE KWON: Mr. Krsnik.

23 MR. KRSNIK: [Interpretation] Your Honour, I think the only thing

24 that can be relevant is the decision of the Trial Chamber. Why didn't the

25 OTP provide it? Because they don't have it. In that case, I submit that

Page 282

1 we should adjourn in order to obtain their decision. That is the only

2 thing that can be relevant, but we are now at the stage of closing

3 arguments. I don't think that new evidence can be even presented for

4 admission at this stage. But if there is any evidence that is relevant is

5 that decision of the Trial Chamber. I don't think it's a problem to find

6 it. If they found this one, why couldn't they find it? They are well

7 resourced. Of course they have even the software necessary. It must be

8 in the computer. What is clear is that that decision does not exist.

9 [Trial Chamber confers]

10 JUDGE KWON: Yes. We'll hear from Mr. Akerson, if any.

11 MR. AKERSON: Your Honour, these documents were obtained from the

12 Registry at the request of Your Honours, who had asked us to retrieve

13 these documents. So we provided this at your request, and if you would

14 feel more comfortable then it seems more appropriate that it is given a

15 Trial Court Exhibit Number, because these documents were requested by you

16 and provided to you at your request.

17 Secondly, the Defence, their objection that we can't add new

18 evidence at this stage. Yesterday, despite the fact that this case has

19 been litigated without any new issues, it's been pending for six months.

20 It's a very simple case. They, yesterday, said that they may list - I

21 can't remember the exact phrase - but it was a lot of witnesses. They

22 can't at the one hand say, Well, we may need to list a lot of new

23 witnesses and on the other hand say, Well, we can't respond to the Court's

24 request to retrieve official court documents that you've requested. These

25 are documents that are relevant to this case, you've requested that we

Page 283

1 provide them to you. They are completely self-authenticating and the most

2 important principle here is that they help you decide on facts, the guilt

3 or innocence of the parties in this case. And by -- on that standard,

4 especially on the standard of relevance, they should be admitted, given

5 whatever weight you deem necessary, and then used in this case.

6 JUDGE KWON: And do you concede that there was no court order

7 preceding these -- at least the closing arguments.

8 MR. AKERSON: I will concede that I'm not aware of a court order.

9 We've searched, but there's material --

10 JUDGE KWON: So you can't find any order?

11 MR. AKERSON: Yes, we haven't been able to find any order

12 preceding this. Obviously we would have provided it because we ran

13 searches and we would have provided it if we found it. That being been

14 said, the record-keeping is not always stellar at the Tribunal, and it's

15 not to say it doesn't exist, but we've made searches, good-faith searches

16 to find it and have not been able to do so.

17 [Trial Chamber confers]

18 MR. AKERSON: Your Honours, I have just one additional point that

19 I think is relevant, which is that we -- in a contempt case, we are

20 actually prosecuting this on your behalf. This is not our own

21 Prosecution. We were given an order directing the Prosecutor to

22 investigate contempt, but this is really your prosecution of contempt

23 because you're enforcing your own inherent power. So there is no

24 limitation of what you receive into evidence, because this is not a

25 classic adversarial proceeding, this is your enforcement of your own

Page 284

1 inherent power and you should not limit yourself, I would submit, to what

2 evidence is useful in making a determination of whether or not Mr. Rebic

3 and Mr. Marijacic committed contempt. That is the only thing that

4 matters, is the evidence relevant.

5 JUDGE KWON: Do you have still anything --

6 MR. KRSNIK: [Interpretation] Yes, yes. I have something to say.

7 I simply can't help saying it. I've tried to learn something about

8 rhetorics and the common law systems, although I'm trying not to get on my

9 feet and object to every comment. But what the Prosecutor just said is

10 not correct, simply not correct. It was an initiative from the OTP; they

11 did not have an order from the Trial Chamber, especially not the Trial

12 Chamber presided by Judge Jorda. They wanted an investigation and they

13 submitted an indictment to the Judge on duty. And they invoked Article --

14 Rule 75. The Trial Chamber did not initiate this investigation.

15 Moreover, the Trial Chamber didn't want that investigation.

16 JUDGE KWON: Mr. Krsnik, the Chamber is all aware -- aware of all

17 the situation. The Chamber will make a ruling.

18 [Trial Chamber confers]

19 JUDGE KWON: The Chamber, by a majority, will admit these

20 documents into evidence pursuant to 98, Rule 98, as a Chamber exhibit.

21 That does not necessarily mean that the Chamber admits there was a

22 protected -- there was an order granting that kind of pseudonym. The

23 Chamber will leave it as an open question whether there was an order from

24 the Trial Chamber or whether the identity of the witness was protected

25 as -- via pseudonym. So those exhibits will be given a Chamber exhibit

Page 285

1 number. There are several of them. Why don't we admit them all as well

2 as the transcript.

3 THE REGISTRAR: Yes. Thank you, Your Honour, for the

4 clarification. So the bundle of exhibits is comprised of the list of the

5 Registry officially provided to OTP today, confidential and public. This

6 also is comprised of the list of pseudonym of witnesses, as provided by

7 OTP to Your Honour. And finally, the transcript. Thank you, Your Honour.

8 And this will be given the exhibit number C1.

9 JUDGE KWON: So why don't we deal with the transcript separately

10 and giving it a separate number for C2. And Judge Bonomy will pronounce

11 his position briefly.

12 JUDGE BONOMY: I wish to explain briefly why I would not permit

13 these documents to be exhibited at this stage. I'm extremely grateful to

14 Mr. Akerson for giving us the full picture and indicating what is

15 available in relation to a pseudonym, but the only way in which the

16 pseudonym could be of any relevance in this case, in my opinion, would be

17 if it was applied as a result of a court order. This case is about the

18 breach of court orders; there's no evidence of such an order, and

19 therefore all these documents, in my opinion, irrelevant.

20 JUDGE KWON: Having done that, we'll hear from the Defence their

21 closing arguments, starting from Mr. Ivanovic for Mr. Ivica Marijacic.

22 MR. IVANOVIC: [Interpretation] Your Honours, allow me to address

23 you. Here when we are talking about the indictment against Ivica

24 Marijacic, we have to bear in mind that Ivica Marijacic is a professional

25 journalist. His job includes the right to inform the public. It is his

Page 286

1 duty, in fact, that while performing his job he should inform the public

2 about hearings before this Tribunal. The right to a public trial is a

3 right guaranteed by Article 21 of the Statute of this Tribunal itself, and

4 it stipulates clearly that everything that is not explicitly designated as

5 secret or confidential should be accessible to the public so that the

6 public should have an insight into the workings of this Tribunal. Ivica

7 Marijacic could never have known or checked whether the witness statement

8 is secret.

9 Let me remind you of what a Prosecution witness we had has said.

10 On the witness statement itself, there is no mark of confidentiality.

11 Therefore, this Trial Chamber, following the request of the OTP,

12 should be the first Trial Chamber of this Tribunal that would find

13 criminally liable a journalist who was only doing his job. Do the facts

14 that we have heard in the past two days support this? In our submission,

15 Your Honour, no. What was Ivica Marijacic charged with? Strictly with

16 violation of a court order of this Tribunal. Under the order of the

17 Tribunal of the 16th of January, 2006, not the 6th of July -- June, sorry,

18 1997, it is very clear that there is no violation, even of the order of

19 the 1st December, 2000. The order of the 1st December invokes the order

20 of the 6th of June, 1997. Why cannot the order of the 1st December apply

21 to Ivica Marijacic? It cannot because the Appeals Chamber itself in its

22 findings of the 16th of January says that there is nothing to vary in that

23 order because nothing new was added. The decision of the 6th of June

24 clearly defines that protective measures are granted to witnesses residing

25 in the former Yugoslavia. The Appeals Chamber found that Witness van

Page 287

1 Kuijk did not reside in the former Yugoslavia.

2 For all those reasons, it is clear that neither the order of the

3 1st December nor the others can apply to Mr. Marijacic because that order

4 gives no particular protection to Witness van Kuijk.

5 There remains outstanding the question of the order to proceed in

6 closed session on the 19th of December. The first thing I would like to

7 stress is the following: Ivica Marijacic or the Hrvatski List newspaper

8 did not publish a single word from the closed session. This was also

9 confirmed by a Prosecution witness here. Furthermore, the Prosecution

10 claims that the principle is at stake, namely, not to allow anyone to

11 second-guess decisions of the Tribunal. As a human being, I absolutely

12 agree with this, but those decisions must be clear and clearly defined,

13 not only for lawyers but also for the public. This decision to proceed in

14 closed session unfortunately does not meet that standard. Not a single

15 part of that decision reflects the previous decision dating back four

16 months earlier. It does not explicitly proclaim the contents secret or

17 protected, neither for the parties or the Trial Chamber. Whose duty is it

18 to see to it? The party that seeks protective measures, in this case the

19 Prosecution. It could also be the duty of the Trial Chamber, maybe

20 someone else as well; but it is certainly not the duty of a professional

21 journalist to see to it that court decisions are clearly defined and

22 understandable to everyone.

23 JUDGE BONOMY: Mr. Ivanovic, surely one issue that is clear in

24 this case is that whether or not the identity of a witness is protected by

25 a closed session order, his evidence is protected by the order. Can there

Page 288

1 really be any argument to the contrary?

2 MR. IVANOVIC: [Interpretation] Absolutely, Your Honour, and I am

3 continuing to say so in my closing remarks. His testimony in closed

4 session is protected. But Ivica Marijacic and Hrvatski List did not

5 publish a single word from the closed session.

6 JUDGE BONOMY: Just take it stage by stage. Mr. Marijacic, in

7 writing his article, clearly knew that he was breaching the order. It's

8 clear from the article that that's what he was deliberately setting out to

9 do, and your submission must be consistent, obviously, with that position

10 or you must indicate to us, I would suggest, some basis for thinking that

11 he made some mistake. Is that what you're suggesting, that he had made a

12 mistake about the effect of the order or what? I don't understand it.

13 The evidence is clear about what he thought he was doing, and it's rather

14 technical to suggest: Well, he didn't provide the transcript

15 word-for-word because he provided, by using the statement, the same

16 information and then he's called it the transcript. It all looks very

17 devious on the face of it.

18 MR. IVANOVIC: [Interpretation] No, Your Honour. With your leave I

19 will explain. Ivica Marijacic published parts of the statement that bears

20 no mark of confidentiality. Ivica Marijacic is not somebody who sat

21 before this Trial Chamber. He couldn't have been familiar with the order

22 of the Trial Chamber made in closed session. Ivica Marijacic received and

23 published what was published as a fax transmission --

24 JUDGE BONOMY: What order was he talking about then that made

25 his -- this secret evidence? What on earth was he talking about in the

Page 289

1 article?

2 MR. IVANOVIC: [Interpretation] As far as I understood that

3 article, Your Honour, Ivica Marijacic did not mention a single specific

4 order of this Tribunal. Ivica Marijacic probably, checking things on the

5 Internet, saw that there was a --

6 JUDGE BONOMY: It's not for you to speculate. I want you to

7 concentrate on the evidence. On the basis of the evidence, what on earth

8 can this Trial Chamber conclude other than that this publication was meant

9 to defy a court order here that made this secret testimony?

10 MR. IVANOVIC: [Interpretation] Your Honour, I have to repeat.

11 Ivica Marijacic and Hrvatski List did not publish a single word from a

12 material clearly designated as protected or secret. What is marked as

13 protected, namely closed session material, is the transcript of the

14 testimony. Of that, Ivica Marijacic did not publish a single word.

15 JUDGE BONOMY: Well, I hear what you say. Carry on.

16 MR. IVANOVIC: [Interpretation] That means that there are no marks

17 of confidentiality on the statement itself, and we heard that from a

18 person who knows about these things, from a witness from the Prosecution.

19 That conclusion, therefore, that this would allow anyone to second-guess

20 court orders is unjustified, especially with regard to journalists. Let

21 me remind you again, my client never received a single direct order. All

22 other parties have been cautioned, but not my client. And now the

23 Prosecution asks you, Your Honours, to find my client guilty of contempt.

24 Is that fair?

25 This case is very clear. The Office of the Prosecutor did not

Page 290

1 provide any evidence to support the claim that my client violated any

2 direct order of this Tribunal for the simple reason that there was no such

3 direct order issued to him. Why shouldn't he be subjected to measures

4 that are applied to all the other journalists?

5 Your Honour, this begs the question: How did the Trial Chamber in

6 the Blaskic case react in other cases? I believe the spirit of the

7 decision of the Court is clearly expressed in their decisions regarding

8 witnesses Thebault and Morillon. In their cases, the Trial Chamber very

9 clearly decided that those witnesses would be testifying in closed

10 session, that all prior statements of those witnesses should be regarded

11 as confidential. But is their identity secret? No. Where is such a

12 decision in the case of Witness van Kuijk? There is no such decision.

13 The Prosecution invokes the decision to proceed in closed session. I

14 repeat, Ivica Marijacic did not violate their decision, but nothing, no

15 part of that closed session, was published in Hrvatski List.

16 This further brings us to another question: How could Ivica

17 Marijacic, a professional journalist, know that nine years later the

18 Prosecution will assume the stance that such a statement, a witness

19 statement, that is in no way marked as secret, given by a witness who

20 never asked for any protective measures, as admitted by the Prosecution

21 itself, would become secret only by virtue of a later decision that this

22 witness should testify in closed session? How could Ivica Marijacic have

23 known that the Prosecution will take this position? There was no way he

24 could have known. Why did the Trial Chamber proceed in closed session in

25 the first place --

Page 291

1 JUDGE BONOMY: He wrote, Mr. Ivanovic, that Mr. Rebic gave him the

2 two documents. He asked him: "Are these protected documents?"

3 And the answer was: "These are protected documents and I am aware

4 of the possible consequences of making them public."

5 So whatever might be said about whether that's evidence against

6 Mr. Rebic, it's undoubtedly evidence against Mr. Marijacic. I'm fully

7 aware that they were protected documents. Now, he's chosen not to answer

8 that by not giving evidence, and therefore what other conclusion can one

9 draw but that he knew they were protected documents?

10 MR. IVANOVIC: [Interpretation] Your Honour, in response to this

11 question of yours, I would just like to say the following: Mr. Marijacic

12 knows that Mr. Rebic also had not been involved in proceedings before this

13 Tribunal.

14 JUDGE KWON: Yes, proceed, Mr. Ivanovic.

15 MR. IVANOVIC: [Interpretation] The Blaskic Trial Chamber is very

16 clear on that. The decision was passed because of the sensitivity of the

17 evidence in respect of the Kingdom of the Netherlands. So the state

18 expressed its interest, its concern, that some statement could affect the

19 national interests of that country. The said state intervenes and seeks

20 protective measures. The high officer was not present on the 1st and 2nd

21 of August, 1997, when testimony was given, but he was present at the

22 closed session in December the same year. In my opinion, this clearly

23 shows the attitude of the Kingdom of the Netherlands, that the statement

24 itself did not jeopardise the interest of the Kingdom of the Netherlands.

25 It was also possible that perhaps in broader evidence in session,

Page 292

1 the interests of the Kingdom of the Netherlands could be affected, but

2 never mind.

3 There's only one thing that's certain, and it was also heard from

4 the Prosecution witnesses and from the Prosecutor himself. Not a single

5 one of the reasons for which the session was closed existed when the text

6 was published in Hrvatski List.

7 There is just one more additional question. As for van Kuijk's

8 testimony, why did the Trial Chamber not reach a clear-cut decision, as in

9 the case of General Morillon and Mr. Thebault? Why were things left this

10 ambiguous? We don't know that and we also don't know who is responsible

11 for that; the only thing we do know for sure is that Ivica Marijacic is

12 not responsible for that. I call upon this Trial Chamber not to allow,

13 due to the omissions of others, to have my client proclaimed guilty. He

14 did his job, and he believed that modern democracy rests on the public

15 nature of many things, like this Tribunal. And that can be explained by

16 the following principle: That everything that is not marked as secret and

17 confidential is public. That is a lofty right and it is one of the

18 fundamental human rights. The Statute of this court guarantees it as a

19 foremost pattern of behaviour.

20 In my opinion, the Office of the Prosecutor cannot be allowed to

21 decide arbitrarily on something seven years after things have happened;

22 that has to be stated quite clearly at the moment when things are actually

23 done, when they happen, just like it was clearly marked in the case of

24 General Morillon and Mr. Thebault.

25 Finally, Your Honour, I would like to remind you once again of the

Page 293

1 key fact, perhaps, in these proceedings. Ivica Marijacic is the only

2 accused journalist before this Tribunal who never got an order to cease

3 doing what he was doing, especially not in the van Kuijk list and in the

4 case of Hrvatski List. All other journalists and newspapers got a direct

5 warning, and in spite of it continued to violate the rules of the

6 Tribunal. And I'm sure that the OTP will be able to prove that very

7 quickly before this Trial Chamber.

8 So, Your Honours, Ivica Marijacic did not violate the order of the

9 6th of June, 1997. He did not violate the order of the 1st of December,

10 2000. He did not violate the order of the closed session because he did

11 not publish anything from there. He jeopardised no one by his text, let

12 alone van Kuijk or the interests of the Kingdom of the Netherlands, and

13 Ivica Marijacic was the only journalist who was indicted here without

14 being given previous warning, as all other accused journalists were.

15 I am profoundly convinced that this Trial Chamber will protect the

16 human and professional rights as a journalist of Ivica Marijacic and will

17 not sacrifice them to the ambitions of the Office of the Prosecutor, that

18 arbitrarily decides on what is secret and what is not secret.

19 Furthermore, I wish to believe that this Trial Chamber will take

20 into account the fact that in this case the evidence produced was not

21 sufficient for this Trial Chamber to reach a first precedent in the work

22 of the International Criminal Tribunal by proclaiming guilty a

23 professional who simply did his job. The OTP wishes to limit the rights

24 of a journalist, and in this way to impose restrictions on the rights of

25 the public.

Page 294

1 Please, Your Honours, on the basis of these facts, do not turn

2 Ivica Marijacic from a professional journalist into a criminal; that would

3 absolutely not be proper and fair. Thank you, Your Honour.

4 JUDGE KWON: Thank you, Mr. Ivanovic.

5 Mr. Krsnik.

6 MR. KRSNIK: [Interpretation] Your Honours, I'll try to be as brief

7 as possible, and I'll try to be as reasonable as possible. Actually, I

8 don't want to go into any big-time debate here. It doesn't involve some

9 kind of great wisdom. What this is all about is an ordinary, everyday

10 legal issue. The legal issue is whether my client committed the crime of

11 contempt of court and whether our learned friends of the Prosecution

12 submitted sufficient evidence of this because they bear the burden of

13 proof, and have they proven all this beyond a reasonable doubt?

14 As far as I can see and as far as I managed to feel on the basis

15 of these proceedings over the past two days, many arbitrary conclusions

16 were drawn and many arbitrary opinions were reached, apart from legal

17 arguments, if you wish. I have something to say that has to do with legal

18 arguments, and indeed I'm going to say that. The real reason for this

19 indictment is a show of force on the part of the Prosecution, especially

20 the Prosecutor himself repeated twice that this was due to the preparation

21 of two big cases. Imagine, that's supposed to be an argument for us, an

22 argument in terms of whether there was a violation of a Rule.

23 However, since the Prosecutor brought this up, I would like to

24 tell you that that is, in fact, what the Prosecution thinks. And you know

25 why? It's very simple. And now I'm going to give you an example of that.

Page 295

1 Please let us move into private session.


3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 296

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 JUDGE KWON: Yes. We are now in open session.

8 JUDGE BONOMY: As I understood the point the Prosecutor was making

9 was that if the protection of the protective measures that are granted by

10 the Tribunal are seen to be ineffective, then that will actively

11 discourage or at least raise the risk of discouraging potential witnesses

12 from committing themselves to come to the Tribunal.

13 MR. KRSNIK: [Interpretation] Your Honour, that was my

14 understanding, too. But I also understood in my own way the

15 interpretation of the gentleman of the Prosecution, that they do wish to

16 show force. Because if this were so, then they would have dealt with all

17 violations from the press from the former Yugoslavia in the same way, and

18 there were at least 100 such cases. However, not a single indictment was

19 issued.

20 Now that you're asking me, Your Honour. Judge Bonomy, I've been

21 listening very carefully to your wise comments, sensical remarks, and

22 please don't think that I'm trying to flatter you in any way. But why

23 would Hrvatski List be indicted and not Globos Vjesnik [phoen] who

24 violated or the editors of the newspapers were aware of the fact that they

25 were violating the Rules and they said they would go on doing that. It's

Page 297

1 only Novi List that was indicted, Hrvatski List and Slobodna Dalmacija; no

2 one else. Hundreds of newspapers.

3 What about Defence witnesses who are protected? In cases where I

4 was Defence counsel, practically all of my protected witnesses had their

5 names disclosed. And I wanted to have a debate on this and I was not

6 allowed to have one. We did not have any hearings on that. The

7 Prosecutor said no. And now the OTP is terribly worried. About what,

8 Your Honours? What are they worried about? They never sought protective

9 measures for this witness, but it was the Dutch government that did.

10 There is a valid judgement. In this case for years there has been no

11 Dutch Battalion in Bosnia, and the Dutch government is not asking for

12 anything now, but it was the Prosecutor who had to apply the same

13 standards and the same procedure like all the rest of us. They have to

14 observe the same rules.

15 So what does that mean, Your Honours? That no one on earth may

16 ever publish anything, if we are to apply what the Prosecutor said just

17 now. And what are students going to study in the future about this

18 Tribunal? And what will history write about? If something is not common

19 sensical, then it cannot be right, fair, and just. The law cannot move

20 against common sense. The question here is: Was this witness in jeopardy

21 or not? We all know that the witness was not jeopardised.

22 Your Honours, the OTP wants a precedent. They want to have your

23 ruling that they can wave in front of all. They certainly have their own

24 hidden intentions. Of course I'm engaging in guesswork now, I'm sorry, I

25 am convinced of that.

Page 298

1 JUDGE BONOMY: Yes, you are departing from your own norm of

2 presenting a simple, common sensical legal argument, or everyday legal

3 argument, as you said. That's only half of the issue, Mr. Krsnik, the

4 other half of the issue is whether the material itself was protected.

5 MR. KRSNIK: [Interpretation] Your Honour, I am defending

6 Mr. Rebic, and he's been indicted for two things, and you simplified

7 matters by making a single point on this: Disclosure of identity of a

8 protected witness and the transcript. I have a very simple answer to

9 that. I could have called Mr. Rebic to the stand, if this is what I

10 thought. He could have come to testify here in front of you and say: No,

11 I did not give the transcript. I am putting a concrete question to you.

12 Are you really going to take newspapers as evidence from a part of the

13 world that is still learning journalism and law and democracy? Hrvatski

14 List is not the Washington Post, you know, but the Washington Post was the

15 first one to carry the story about Cicko Bralo. You have to know the

16 background about all of this.

17 The distinguished lady, Ms. Carla del Ponte, threatened to turn to

18 the Security Council of the UN and accuse Croatia of hiding Cicko Bralo

19 and Mr. Rebic of doing that. And now when you see van Kuijk's statement,

20 you see that that was not true. There was a tempest. The Croatian media

21 reported on this for days, and Hrvatski List was one of the newspapers

22 that wrote an article on this. So that's the background.

23 But let me simplify matters even further. I think that the Office

24 of the Prosecutor did not prove in these proceedings, not with a shred of

25 evidence -- this is my position, Your Honours. Attorneys are usually

Page 299

1 prone to exaggeration and they like to impress their clients; that's not

2 the kind of person I am. And I am stating very clearly that the

3 Prosecution did not prove beyond a reasonable doubt that my client

4 disclosed any identity or the transcript, well, except for the newspapers.

5 If that is sufficient evidence for you, then I know what awaits me. But

6 if newspapers, newspaper articles, are not sufficient, I know what's in

7 store, again. But I know something else. I am asking for a precedent

8 from this Trial Chamber because this is a very sensitive matter. What is

9 at stake is the right of the public to information.

10 Your Honours, maybe you don't know this. You are sitting here,

11 vested with this great authority from the international community. But

12 the eyes of the public in the former Yugoslavia are directed at you,

13 awaiting your every word and decision. One of the proclaimed principles

14 is that this Tribunal should contribute to the restoration of peace in

15 that region. You can set a precedent and say that if an order does not

16 have clear enough wording, that there is no clear protection, then there

17 was no violation of those orders. And it is my position that Mr. Rebic

18 did not violate any of the said orders.

19 And third, we need a clearly expressed position from you as to

20 when there is and when there isn't contempt of court.

21 I have one more point to make, and that is the application of Rule

22 77. The Prosecutor keeps invoking it the way he understands it and I, of

23 course, understand that he has his own approach; that's his right. Rule

24 77 could not be any clearer, particularly in point (C). Of course I'm not

25 going to point it because you know it. But Rule 77(A)(ii) clearly says

Page 300

1 that: "Any person who discloses information relating to those proceedings

2 in knowing violation of an order of a Chamber," it is up to say whether

3 there was violation, whether it was violated by Mr. Rebic, and, if there

4 was violation, then of which order. It is my position that the fact alone

5 that the session was closed does not mean protection. That is a very

6 exclusive interpretation adopted by the Prosecution, but we will hear your

7 answers. If protection existed, then it would have been granted by an

8 order of the Trial Chamber. And if we had -- if we had that order, the

9 Prosecution would certainly be parading it.

10 JUDGE BONOMY: What then do you say, Mr. Krsnik, is the

11 alternative interpretation of going into closed session?

12 MR. KRSNIK: [Interpretation] Your Honour, I have spent a lot of

13 time in these courtrooms, as have you, and you know exactly how it happens

14 that closed sessions are used. What was at stake in our case was

15 protection of military secrets of the Kingdom of the Netherlands; there

16 was no other reasons, there was no other reason. If there had been, they

17 would have been clearly stated in a court order. And that is why the

18 Kingdom of the Netherlands, once the DutchBat came back, had to ask for

19 these measures to be lifted without leaving it in the hands of the

20 Prosecutor. Although it is, properly speaking, the job of the Prosecutor.

21 The Prosecution cannot hold the key as to who is in contempt and who

22 isn't, because if you decide that everything they say is secret, then you

23 give them the power --

24 JUDGE BONOMY: I didn't understand the point. It was left to the

25 Dutch government to ask for the measures to be lifted. And did they ask

Page 301

1 for the measures to be lifted?

2 MR. KRSNIK: [Interpretation] Yes. Yes, Mr. Cameron confirmed

3 that. The Dutch government asked for the protection to be lifted, and

4 this was confirmed by Mr. Cameron. It is also in the statement of

5 Mr. Cameron that I provided. I will give you the page, if necessary.

6 JUDGE BONOMY: I think that this may be a translation problem.

7 The Dutch government asked for the measures to be imposed. It's been

8 translated as "asked for them to be lifted."

9 MR. AKERSON: I can clarify --

10 MR. KRSNIK: [Interpretation] Just a minute. Just a minute. I

11 will explain. The question is directed at me, I think.

12 MR. AKERSON: Your Honour, during my closing argument he had made

13 several objections. He's misstating fact --

14 JUDGE BONOMY: No, no, no, let's -- I can clear it up with him,

15 and if it remains unclear then, when he's finished, you can say what you

16 wish to say in the matter.

17 MR. KRSNIK: [Interpretation] The point is: During the trial in

18 1997, the Dutch government asked for protective measures because of the

19 sensitivity of their military operations. In 2005, the Dutch government

20 asked the Office of the Prosecutor to list those measures because the

21 reason for their imposition no longer exists. And that is stated in the

22 witness statement and in the testimony of Witness Cameron. I questioned

23 him about it, and he confirmed it.

24 JUDGE BONOMY: Well, we have his statement, so we should be able

25 to check that. I have no recollection of that evidence.

Page 302

1 MR. KRSNIK: [Interpretation] That is the penultimate page in his

2 statement.

3 JUDGE KWON: I don't think we have that statement. If Mr. Akerson

4 can help us in this matter.

5 MR. AKERSON: You don't have the statement in evidence, but what

6 you do have is the motion for the lifting of protective measures, which

7 does clarify. Because the Dutch government did not ask the OTP to lift

8 the protective measures. We asked them, in light of this Trial Chamber,

9 if they would consent to lifting the protective measures, which was put in

10 the motion for lifting of protective measures.

11 JUDGE KWON: That's my recollection, but --

12 MR. KRSNIK: [Interpretation] No. No. I will find it. Just give

13 me a little time. I'll find the statement where it is clearly written.


15 [Defence counsel confer]

16 JUDGE KWON: In case of a -- Mr. Cameron's statement, only the

17 cover page was put on the ELMO and was not handed over to the Chamber. So

18 we received Tomljanovich's statement, but not Cameron's, Mr. Cameron's.

19 MR. KRSNIK: [Interpretation] I found it, Your Honour. I have the

20 Croatian version only; I don't have the English version. In the Croatia

21 version, it's page 4, paragraph 5. It reads -- I will read slowly, and I

22 will appreciate the help of the interpreters. I gave you the statement

23 yesterday but not today. I am reading from the statement prepared by

24 Mr. Cameron himself, and for the record we call it "statement given to the

25 OTP."

Page 303

1 It reads: "On the 27th October, 2005, I received an electronic

2 communication from the Dutch Ministry of Defence which authorised the

3 International Criminal Tribunal to have the record of Mr. Van Kuijk's

4 testimony placed in the public domain and to remove protective measures in

5 regard of Captain van Kuijk. Source: Terrence Cameron."

6 JUDGE KWON: Was that not in response to the Prosecution's request

7 whether they agree or object to the lifting of the protective measures?

8 MR. KRSNIK: [Interpretation] I do not see that here. I see that

9 this is an initiative from the Ministry of Defence. It is not written

10 anywhere that this could be a reply to the request of the Office of the

11 Prosecutor.

12 JUDGE KWON: The Prosecution's motion to the Appeals Chamber

13 requesting a variation of protective measures, i.e., the lifting of the

14 protective measures in relation to Witness van Kuijk was filed on 2nd of

15 November in 2005. And I noticed from your reading of this, Mr. Cameron's

16 statement, he received the communication from Dutch Ministry of Defence on

17 27th of October. So one can assume that that communication was in

18 response to the question of the Prosecution. Am I correct? So --

19 MR. KRSNIK: [Interpretation] No, Your Honour --

20 JUDGE KWON: -- Prosecution filed this motion after receiving.

21 MR. KRSNIK: Yes, after the receiving.

22 JUDGE KWON: From the Dutch government.

23 MR. KRSNIK: Yes.

24 JUDGE KWON: According to you it is an open question --

25 MR. KRSNIK: [Interpretation] That is correct.

Page 304

1 JUDGE KWON: -- whether the Prosecution asked the Dutch government

2 whether they agree or not with the lifting of the protective measures?

3 Yes. Please proceed, Mr. Krsnik.

4 MR. KRSNIK: [Interpretation] I am glad we have clarified this. So

5 it was the initiative of the Kingdom of the Netherlands, not the OTP. And

6 that is the reason why I am asking this Court not to allow the Prosecution

7 to do this, but, on the contrary, to send them a message, to protect the

8 right to a fair and public trial. And that whenever we have measures that

9 are more than -- that go outside the scope of the reasonable, that they

10 should be the ones to ask for the lifting of such measures. Because the

11 OTP should not be allowed to have sole discretion in these matters.

12 What actually happened in this Tribunal? You know the original

13 order in 1996. The Court dismissed their motion to investigate and never

14 allowed an investigation. The Duty Judge considered this motion and

15 rejected it. I studied this, and I know from Rule 77 that it is the

16 exclusive right of the Trial Chamber to decide on contempt of court. And

17 I would be grateful if you would support it in your decision. I'm not

18 going to elaborate on the right of the media and the right to information,

19 especially information from this Tribunal, but doesn't it seem to you that

20 if we read carefully Rule 75(A), which does not even limit the rights of

21 the accused, it always takes care to protect the rights of the accused.

22 If we started interpreting it as the Prosecutor does, wouldn't that

23 jeopardise the rights of all parties, or at least considerably limit those

24 rights, including the rights of the media and the freedom of the media.

25 I'm stressing for the 15th time, from every common sensical point of view,

Page 305

1 the behaviour of my client did not put anyone in danger.

2 I do not wish to take anymore of your time. I don't wish to refer

3 to the testimony of Mr. Tomljanovich. I will just say that my client,

4 Mr. Rebic, until his retirement on the 26th of February, when he handed

5 over his duty, that was the 26th of February, 2000, and he has been

6 retired to date, but since unfortunately in Croatia retirement pensions

7 are not very high and he is, by primary occupation, professor of

8 philosophy with a Ph.D. in philosophy, he freelances as a journalist in

9 Hrvatski List as a writer, as a contributor. While he was assistant

10 minister of defence for security, he displayed a high level of awareness,

11 and I thank my colleagues from the OTP for giving us a chance to hear

12 Mr. Tomljanovich, that gave us a chance to compare various performances.

13 He closely protected every document he handled, always making sure to mark

14 them as confidential if they were confidential. The fact that the

15 Prosecution got hold of these documents - and I'm impressed with the job

16 they did in obtaining them from the Croatian state - in Croatia he would

17 be punished much more severely than here for allowing the disclosure of

18 such documents. And now imagine, for 15 years, from 1991 to 2004,

19 Mr. Markica Rebic did not disclose anything to anyone because he was

20 liable, both before the national legislation and the international

21 community, the international legislation. And the Prosecution has

22 suggested that he suddenly did in 2001.

23 But even if that was so - and if I am proven wrong, I will always

24 suffer from pangs of conscience for not doing my job well and not putting

25 him on the stand - I will never forgive myself if you find him guilty of

Page 306

1 contempt based on the evidence that I believe is clearly insufficient with

2 regard to my client. Through these days I have always been guided by one

3 thought: We have to be serious in our job. I always tried not to put my

4 clients on the stand or even to produce character witnesses. I think we

5 have learned the truth just by hearing the Prosecution case, which is

6 insufficient.

7 And now my eyes are upon you. I had the privilege and honour of

8 acting as Defence counsel before such a Trial Chamber as this that can

9 often be seen on Croatian television. And I thank you for your patience,

10 and I hope that my client will be acquitted. Thank you.

11 JUDGE KWON: Thank you, Mr. Krsnik.

12 I have to ask Mr. Akerson whether you have anything for rebuttal.

13 MR. AKERSON: I do, Your Honour, a few short comments. Do you

14 want to take a break first or would you like me to proceed right into

15 that?

16 JUDGE KWON: How long would it take?

17 MR. AKERSON: I -- five or ten minutes, not more.

18 JUDGE KWON: Yes. We'll hear from you right now.

19 MR. AKERSON: I just need a moment to get my podium set up.

20 [Trial Chamber confers]

21 MR. KRSNIK: [Interpretation] Your Honour.

22 JUDGE KWON: Yes, Mr. Krsnik.

23 MR. KRSNIK: [Interpretation] While my colleague is getting ready,

24 may I just say something? There's something I think the Trial Chamber has

25 to know. It is the clients who are paying themselves for these big

Page 307

1 expenses of appearing before this Court, the hotels, the plane tickets.

2 They are truly financially exhausted. They even had to get credits in

3 order to pay for all these costs because the registry turned them down.

4 I'm asking this Trial Chamber kindly: Could your ruling be -- well, I

5 don't know, perhaps I'm asking for something that is truly out of the

6 ordinary, but could you please rule today if at all possible? Or, when

7 you do rule, could we please hear the decision by videolink so that this

8 does not incur major expenses again? Of course you don't have to answer

9 me now, but I simply felt it necessary to say so.

10 JUDGE KWON: Speaking for myself, I don't think it is for the

11 Chamber to rule on any financial matters. It is for the Registry, and I

12 have to consult with my colleagues whether the accused can appear on

13 videolink. But I will let you know.

14 MR. KRSNIK: [Interpretation] Thank you, Your Honour.

15 MR. AKERSON: First, Your Honour, I just want to respond to a very

16 small point, but it's a misstatement of fact regarding the Dutch

17 government and who requested that protection measures be lifted. I will

18 turn your attention to what is the decision on the Prosecution's motion

19 for the variance of protection measures in this case, page 4, last

20 paragraph. It says in this motion that: "According to the Prosecution,

21 neither the witness van Kuijk nor the Dutch Ministry of Defence have any

22 objection to the relief requested in this motion."

23 Now, the timing of this is important because this -- the

24 allegation is here the Dutch government contacted us and asked to have the

25 protections lifted. This is right before trial. And either the Dutch

Page 308

1 government spontaneously of their own initiative somehow came to this

2 conclusion, or, as it's clear I think from this motion, that we asked them

3 to lift this so that we could conduct a trial in a reasonable way without

4 having to worry about witness protections.

5 JUDGE BONOMY: Well, if was it October 2004, it might have been

6 relevant, but I have to say I fail to see the relevance of any -- who did

7 what in October 2005.

8 MR. AKERSON: I totally agree. I totally agree it's irrelevant,

9 but I'll get to the main point that Mr. Marijacic said this is a case of

10 freedom of the press. It's not a case about freedom of the press. Clearly

11 that is a paramount principle; however, we also recognise that there are

12 limitations on freedoms in the press. There's the law of defamation, the

13 law of slander, the law of libel. But more importantly for us closed

14 session testimony is a limitation on the freedom of the press. We're

15 excluding, now, anybody who's not in this courtroom. There's a reason for

16 that. There's a balance to be weighed. The press has a right to cover

17 trials, and the trials should be public where possible, but Your Honours

18 should be aware of a need to protect certain witnesses from exposure to

19 the press.

20 Now, neither Mr. Marijacic or Mr. Rebic was able to address the

21 questions addressed to them about was content of closed session testimony

22 protected. Neither one could answer that. They also couldn't answer the

23 question -- their own admission is that they knew it was protected

24 information. Were they somehow disavowing those statements as inaccurate?

25 They never addressed that. What stand before you is that they both

Page 309

1 admitted that the material was protected. They haven't, in argument or in

2 evidence, put anything before the Court's that suggests anything other

3 than the obvious. They have admitted that these are protected -- they

4 knew this was protected, and they published it in knowing violation that

5 it was protected. The question is, for you, and I think it's an obvious

6 one and the implications are great: Does closed session protect the

7 content.

8 Mr. Rebic through his counsel now just said: It does not.

9 Page 58, line 16, at 11.22.55 in the transcript, page 58, line 16,

10 11.22.55. Judge Bonomy asked him, "Was this session -- was closed -- does

11 that mean protection?" He said, "It does not mean protection."

12 Now the implications of that I don't have to go into, but they are

13 profound for us, and that's what this case is about. The Prosecution is

14 interested in protecting the witness protective measures that exist. It's

15 not a case about interfering with Mr. Van Kuijk. That's never an

16 allegation that was made in any pleading, in any argument. It's an

17 interference with our ability to guarantee witnesses who come to us only

18 on the agreement that they will be confidential, that that means something

19 and it's going to be enforced. And when papers knowingly violate that,

20 that we step in and charge them with contempt and enforce it.

21 Now, Mr. Marijacic was -- he mentioned that the closed session

22 wasn't published. Another principle facing this Court, and I also think

23 it's indisputable, that the evidence of a witness is protected, not the

24 form of the evidence. A literal transcript. And he says: "Nowhere on

25 this transcript does it say 'secret.' It does not explicitly proclaim the

Page 310

1 contents secret." And if you follow that logic, that means every

2 transcript, every closed session -- every transcript containing closed

3 session testimony is public by their argument because it doesn't

4 say "secret." If closed session doesn't mean closed, closed from the

5 public, it's public. Their argument is it's public. And I think the

6 Court has to take the position that closed session testimony protects the

7 evidence of a witness in whatever form. There's no other reasonable

8 inference.

9 Mr. Marijacic also says there was no direct order issued to his

10 client. They admit they have possession of the transcript of the closed

11 session order, and that order has to protect the material. And they

12 knowingly violated that protection, and that's the essence of contempt.

13 I have no other issues to address.

14 JUDGE KWON: Rule 86 - just a second, Mr. Krsnik - (C) says: "The

15 parties shall also address matters of sentencing in closing arguments."

16 So you have nothing further in relation to sentencing issue?

17 MR. AKERSON: Only what's already on the record, Your Honour, that

18 we consider this to be a serious violation based on the flagrant and

19 sensational nature of how it was put in the paper and interfere with our

20 ability and due administration of justice.

21 JUDGE KWON: Thank you.

22 Mr. Krsnik.

23 MR. KRSNIK: [Interpretation] Just one sentence in response to the

24 Prosecutor. The Prosecutor never had a case from the very outset, and he

25 showed that. Why? The first order - and that's when all the orders

Page 311

1 started -- I don't want to be a burden to you and I don't want to bore

2 you, Your Honours. It only had to do with persons who resided in the

3 territory of the former Yugoslavia. We can now interpret this any way we

4 want. It does not pertain to van Kuijk. He never had protection. Thank

5 you.

6 JUDGE KWON: Yes, Mr. Ivanovic.

7 MR. IVANOVIC: [Interpretation] Your Honours, I would just like to

8 deal with one of the matters that our learned friend from the Prosecution

9 raised. We never said that the transcript was not marked as confidential;

10 I'm talking about the statement of Witness van Kuijk. That was not marked

11 as confidential in any way. Thank you, Your Honours.

12 [Trial Chamber confers]

13 JUDGE KWON: On behalf of the Chamber, I'd like to thank both

14 counsel for their helpful submission today, and the Chamber will make a

15 decision in due course and inform the parties in due course. The hearing

16 is now adjourned.

17 --- Whereupon the hearing adjourned at 11.55 a.m.