1 Thursday, 29 September 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Mr. Registrar, please call the case.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is case IT-04-84bis-T, the Prosecutor versus
10 Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
12 Can we have the appearances for the day, please, starting with
13 the Prosecution.
14 MS. KRAVETZ: Good morning, Your Honours. Daniela Kravetz for
15 the Prosecution, with Aditya Menon, our Case Manager Line Pedersen, and
16 our legal intern Thomas Dutton. Thank you.
17 JUDGE MOLOTO: Thank you so much.
18 The Defence, starting with Mr. Haradinaj.
19 MR. EMMERSON: Good morning, Your Honours. Ben Emmerson for
20 Ramush Haradinaj, together with Rod Dixon, Annie O'Reilly, Andrew Strong,
21 and Kerry Rowan.
22 JUDGE MOLOTO: Thank you so much, Mr. Emmerson.
23 For Mr. Balaj.
24 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith on
25 behalf of Mr. Balaj, with Colleen Rohan, Chad Mair, and Holly Buchanan.
1 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
2 And for Mr. Brahimaj.
3 MR. HARVEY: Good morning, Your Honours. Richard Harvey for
4 Lahi Brahimaj, assisted by Mr. Luke Boenisch and Ms. Rudina Jasini.
5 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
6 Yes, Madam Kravetz.
7 MS. KRAVETZ: Your Honour, I just wanted to give the parties and
8 the Chamber an update regarding the next witness that was to follow
9 Witness 77. That is, Witness 3.
10 Fifteen minutes before coming into court today I received an
11 update from VWS and I have been informed that the -- they do not have
12 confirmation yet as to whether the travel document has been issued. So
13 it's looking unlikely that the witness will be able to travel in time to
14 testify for next week.
15 What we propose to do -- we could wait until this afternoon to
16 see if that situation has changed, but the other option is simply to
17 reschedule him for the next sitting period.
18 JUDGE MOLOTO: Okay. Thank you so --
19 MS. KRAVETZ: And I just wish to point out I was asked by my
20 learned colleague this morning about what the position was. We were
21 meant to notify the parties yesterday afternoon, but we had no
22 information yesterday to send out. And I just preferred, rather than
23 inform them informally, to put this on the record what the situation was
24 just so there wouldn't be any confusion or possibility of the position
25 being not represented correctly.
1 Thank you.
2 JUDGE MOLOTO: Thank you so much.
3 And the Chamber might just -- before we go on, may the record
4 show that the Chamber is sitting pursuant to 15 bis -- Rule 15 bis today,
5 in the absence of Judge Delvoie who is indisposed for the day.
6 Then, having said that - and I see you, Mr. Emmerson - the
7 Chamber just wants to also say, to respond to the parties' request
8 yesterday to reconsider whether the Chamber does wanted to hear Witness 3
9 or not. The Chamber feels it does want to Witness 3.
10 MR. EMMERSON: Your Honour, in those circumstances, can we then
11 return to the position just identified by Ms. Kravetz, namely the choices
12 between rescheduling the witness or leaving the position in limbo.
13 Certainly we would submit that the right course is to have
14 clarity as to what is to take place in relation to Witness 3. Because a
15 situation where, for example, the decision is taken at some point in the
16 middle of next week that he may be able to come by Thursday of next week
17 is going to create logistical problems for everybody, I think, in terms
18 of returning to the jurisdiction in sufficient time to hear his
20 So if the reality of the position is - and I see Ms. Kravetz
21 nodding - if the reality of the position is that he's not going to be
22 here next week, then obviously from his point of view, as well as from
23 the Prosecution's point of view and the Defence point of view, and no
24 doubt from the Trial Chamber's point of view as well, it would be
25 practical and sensible if we were to grasp the nettle and to reschedule
2 JUDGE MOLOTO: Well, I guess the Prosecution will reschedule him
3 at whatever time that they realize that it is necessary to reschedule
4 him. Because at least they will know that it is still the Chamber's view
5 that the Chamber does want to hear him --
6 MR. EMMERSON: Yes.
7 JUDGE MOLOTO: -- he must come at one stage or another, and it's
8 up to the Prosecution to reschedule their witnesses.
9 MS. KRAVETZ: Your Honour, if I may just respond to that.
10 I understand my colleagues from the Defence do have commitments
11 next week and are -- and would like to know what is going to happen. We
12 are happy to reschedule the witness. We were trying our best just not to
13 lose Court time next week and that is why we were trying our best to make
14 sure he got his -- through VWS, that he got this travel document. But
15 we're happy to just simply reschedule him for the next sitting period and
16 that way I think that will just resolve the matter and no one else is
17 running around trying to get this travel document issued.
18 JUDGE MOLOTO: Very well --
19 MS. KRAVETZ: [Overlapping speakers] ... sufficient time to just
20 get things done and arranged.
21 JUDGE MOLOTO: Very well, Madam Kravetz. Reschedule if have you
22 to reschedule, but that's all in your hands. We are all in your hands on
23 that one. Okay?
24 Thank you so much.
25 May the Chamber please move into closed session.
1 [Trial Chamber confers]
2 [Closed session]
3 [Open session]
4 THE REGISTRAR: Your Honours, we are in open session. Thank you.
5 JUDGE MOLOTO: Thank you so much.
6 Yes, Mr. Emmerson.
7 MR. EMMERSON:
8 Q. Witness 77, I have a few more questions to ask you. But can I
9 just pause for a moment and just to recall with you the -- the general
10 topics on which I've been asking you some questions as the background to
11 the questions that I'm going to ask you this morning.
12 You will appreciate, I think, you already know this, that the
13 Prosecution allege that there was an agreement to which Mr. Haradinaj was
14 a party to exclude FARK forces from Western Kosovo.
15 You understand that that's what's being alleged here?
16 A. Can you please repeat the question.
17 Q. You know, don't you, that the Prosecution here in this trial are
18 alleging that Mr. Haradinaj tried to exclude FARK forces from
19 Western Kosovo.
20 MS. KRAVETZ: Your Honour, the witness is being asked to comment
21 on the Prosecution position. He should be asked simply questions based
22 on his own knowledge of the evidence. Why should he be commenting on
23 what the Prosecution position is in this case.
24 MR. EMMERSON: Well, because he's called to express an opinion on
25 that very question.
1 MS. KRAVETZ: Well --
2 MR. EMMERSON: And indeed the Prosecution led it in-chief.
3 MS. KRAVETZ: Well, then the question should be phrased
4 differently and the witness should be asked about matters that are within
5 his personal knowledge, not the Prosecution position on the matter.
6 MR. EMMERSON: I didn't ask him to comment on the Prosecution
7 position. What I asked him was to confirm that he knows that that is
8 what the Prosecution are alleging, as a background to the questions that
9 I'm about to ask about what he did and didn't know.
10 JUDGE MOLOTO: I'm not quite sure whether you're going to get an
11 answer to that one. It's a very difficult one, but it's -- [Overlapping
12 speakers] ...
13 MR. EMMERSON: Let -- let -- let --
14 JUDGE MOLOTO: [Overlapping speakers] ... it's not objectionable,
15 but it's -- [Overlapping speakers] ...
16 MR. EMMERSON: Very well. Let -- let -- it may now be helpful,
17 perhaps -- perhaps, if I put it a different way.
18 Q. Witness 77, is it your evidence to this Tribunal that
19 Mr. Haradinaj was trying to exclude the FARK forces from Kosovo?
20 A. I think so. It was.
21 Q. But you accept that you --
22 A. In the beginning.
23 Q. Ah, in the beginning. You accept, though, that you knew nothing
24 of the detail of the conversations that had taken place at the beginning.
25 That's right, isn't it?
1 A. I know only what I said at the beginning. I don't know anything
3 Q. Yes. And when I told you on the last occasion that the senior
4 FARK commander had described Mr. Haradinaj as helpful and constructive in
5 an attempt to find an agreed resolution whereby the FARK forces could
6 enter and be distributed and that the meeting was controlled and
7 constructive on both sides, you're not in a position to contradict that,
8 are you?
9 A. I wasn't there. I couldn't say either yes or no. My knowledge
10 are those of a foot soldier. I cannot confirm something that I don't
11 know anything about.
12 Q. Precisely. But you did try to suggest to us that, even as late
13 as the swearing-in ceremony on the 20th of July, it was your
14 understanding that these remained two separate forces. That was what you
15 told the Tribunal two days ago. That's right, isn't it?
16 A. Yes, this is how I saw it. To this day, I think that this is how
17 it was.
18 Q. Well, we'll look at some of the other material. We've already
19 looked, as you remember, at the orders that make it clear that that is,
20 in fact, not correct, do you agree, the orders that you've seen?
21 A. You mean the video or ...
22 Q. No. Witness 77, I showed you a series of orders post-dating the
23 10th of July which made it clear that Tahir Zemaj was requesting approval
24 from Ramush Haradinaj for the appointment of joint forces involving
25 officers from the former KLA and the FARK in joint brigades. We looked
1 at the documents. You remember those?
2 A. Yes.
3 Q. Your very own brigade was appointed under the hand of
4 Mr. Haradinaj. Do you remember seeing that document?
5 A. I saw the document. I saw it here. But I spoke about another
6 period and I don't know any document related to that period. There might
7 have been agreement, but I had no information about that.
8 Q. That's not my question, Witness 77. You told us just seconds ago
9 that it's still your understanding that these remained two separate
11 I showed you a document under the hand of Mr. Haradinaj dated the
12 12th of July, appointing Mr. Zemaj as the commander of the brigade in
13 which you served. And what I'm asking you is, do you now accept that
14 whatever you may have thought at the time your impression was wrong when
15 you said these remained two separate forces?
16 Faced with the documentary evidence, do you accept that you were
18 A. I can't say that I was wrong, insofar as I was not informed of
19 that. I had no knowledge about that.
20 Q. No, I'm not asking what your state of knowledge was at the time.
21 I'm asking you, sitting here now, seeing those documents, watching that
22 video, seeing the request from Mr. Zemaj to Mr. Haradinaj under the
23 signature of Mr. Zemaj which you yourself have identified, do you now
24 that accept that the impression that you say that you had at the time is
25 or was wrong? Do you now accept that that is the case?
1 A. No, I do not accept that it was wrong. As I said, to this day I
2 continue to think that things were as I thought they were.
3 MR. EMMERSON: Could we call up, please, 65 ter 00886.
4 Q. So that you understand what it is that we're about to look at,
5 this is the contemporaneous diary kept by the senior FARK commander.
6 Now, you remember from the last session who we're referring to
7 when I use the expression "the senior FARK commander," don't you?
8 A. Yes.
9 Q. This is his contemporaneous diary that he produced when he gave
10 evidence on the last occasion. You understand?
11 A. [No interpretation]
12 Q. Sorry, I didn't catch your answer. You understand what we're
13 looking at now?
14 A. Yes. I see it's like a diary. All the daily activities of the
15 senior officer.
16 MR. EMMERSON: Can we please turn to page 14 in the English text,
17 1-4. And we're looking, please, at the bottom section, not the top --
18 not the section that's currently being highlighted, but the one beneath
20 Q. And it's extremely difficult to find the equivalent passage in
21 the Albanian original. So what I -- and in any event, it's in
22 handwriting, but this is an agreed translation so I'm going to read out
23 the text in English and it can be translated to you?
24 If you see there's an entry there under 13.07.1998 in Bucan at
25 6.00 p.m. Now, the evidence is that this is a meeting --
1 JUDGE MOLOTO: Could we enlarge that --
2 MR. EMMERSON: Yes.
3 JUDGE MOLOTO: -- now that we are not even looking at --
4 MR. EMMERSON: No.
5 JUDGE MOLOTO: -- Albania version, maybe we can get the English
6 to occupy the entire screen --
7 MR. EMMERSON: Yes.
8 JUDGE MOLOTO: -- and get bigger. Thank you.
9 MR. EMMERSON: And if we can just enlarge the bottom half only,
10 for the time being.
11 JUDGE MOLOTO: Thanks.
12 MR. EMMERSON:
13 Q. So this is a -- the evidence is that this is a meeting in which
14 the senior FARK commander was addressing the villagers from a village of
15 Bucan. Now, you know Bucan is, do you?
16 A. Yes.
17 Q. And by the 13th of July we know that the orders had been given by
18 Mr. Haradinaj for the formation of joint brigades, because you've seen
19 those orders. But you tell us that it was your understanding that way
20 beyond this time these remained as separate forces. That's correct,
21 isn't it? Way -- even as late as the 20th of July they remained as
22 separate forces and beyond. Do you agree? That's your testimony.
23 A. This is how I knew and understood it.
24 Q. Well, here is the senior FARK commander recording what he
25 understood and what he explained to the villagers of Bucan.
1 He says:
2 "A meeting with the inhabitants of this village concerning the
3 problems of the village.
4 "I gave a briefing with regard to the formation of the 3rd
5 Brigade in Baran valley and co-ordination of all activities with the
6 population from this area. Mobilization of soldiers 18 to 35 years old
7 in operational units and in Territorial Defence units from 18 to 65 years
9 And then he says this:
10 "The question whether there is a KLA or a government army has no
11 sense because the leadership has agreed upon that the KLA is the core or
12 the foundation of a Kosovo modern army. Therefore, we are the KLA and
13 the KLA are us. Consequently, all dilemmas, whether the actions are
14 co-ordinated or not, should be discarded."
15 Has the translation caught up?
16 Did you hear that passage that I just read to you clearly in a
17 language that you understand, Witness 77?
18 A. Yes.
19 Q. So that was your commander of the FARK on the 13th of July
20 publicly telling the villagers of Bucan the message, "We are the KLA and
21 the KLA are us."
22 Is it your testimony that all of this past you by, Witness 77?
23 You knew none of the fact that this was the clear understanding and the
24 message that was being sent out?
25 A. I know that we were UCK/KLA, and I'm speaking as in my own
1 capacity. We entered the territory as KLA in its emblem, but the orders
2 came from Ministry of Defence of the Republic of Kosova. And I'm not
3 clear as to whether Brigade 131, 134, 133 were under the orders of
4 Haradinaj. This is something that I'm not clear about. I know of
5 another agreement, but this I don't know.
6 At the second -- at the half of August, when -- in the middle of
7 August, when an agreement was reached between the Ministry of Defence of
8 the Republic of Kosova and Haradinaj and Commander Zemaj. But what you
9 are putting to me, I am not clear about.
10 Q. What I'm not asking you about is what happened in the middle of
11 August. That's a quite separate development when Mr. Zemaj became
12 commander of Mr. Haradinaj. There was a reversal of their command
14 What I'm asking you about is the position from the beginning of
15 July and following the meeting on the 10th of July, and you have told us
16 consistently that you had no idea that these two forces had amalgamated
17 and that you still believe that they had not amalgamated. And I've shown
18 you a series of orders that establish on the facts that what you believed
19 at the time was wrong and you refuse to accept that you were wrong. Now,
20 what I'm asking you is, here you have your own senior FARK commander, the
21 day after the issuing of those orders, telling the villagers that there
22 was no distinction, that there is no sense in talking about two different
23 armies because we, FARK, are the KLA, and the KLA are us.
24 Are you telling us that you knew nothing of the fact that that
25 was the agreement and that that was the message that the FARK commanders
1 were sending out?
2 MS. KRAVETZ: Your Honour, the question has been asked and
3 answered. My learned colleague has put it several times in relation to
4 several different documents. The last answer in relation to this passage
5 is -- is disappearing now from the screen but it's at the bottom of
6 page 11 and the top of page 12. And he said this is something that I'm
7 not clear about.
8 JUDGE MOLOTO: Mr. Emmerson -- and while I'm speaking, is
9 everybody else having a problem with their frozen screen?
10 MS. KRAVETZ: Yes, Your Honour.
11 JUDGE MOLOTO: I would like assistance with mine because
12 otherwise I'm not following the evidence.
13 [Trial Chamber and Registrar confer]
14 JUDGE MOLOTO: Mr. Emmerson.
15 MR. EMMERSON: Your Honour, it's as basic a principle of
16 cross-examination as it's possible to imagine, that a witness can be and
17 should be confronted with evidence that establishes that his testimony is
18 wrong, invited to indicate whether in the light of that evidence he is
19 prepared to modify the view that he has expressed.
20 He has been called by the Prosecution in support of its case that
21 there was a criminal agreement to exclude FARK, and he has been invited
22 by Ms. Kravetz on more than one occasion to express an opinion on the
23 attitude and intention of the KLA as he understood it to be. And he has
24 maintained in the face and in the teeth of evidence to the contrary that
25 these remained two separate forces.
1 I am fully entitled to confront him with document after document
2 establishing that he is wrong. Weight matters. The volume of material
3 matters. Statements which he says he disputes arising out of official
4 documents are now complemented by the words of his own commander, and I'm
5 inviting the witness to say whether in the light of being confronted with
6 his own commander's words, in his own commander's diary, saying that the
7 two forces had in fact amalgamated, the witness is prepared to revise his
9 JUDGE MOLOTO: That may be so, Mr. Emmerson, but there comes a
10 stage where if the witness is not going to change his position, you have
11 really made your point.
12 MR. EMMERSON: Yes. I accept -- I accept that.
13 JUDGE MOLOTO: The point you make is -- you make to the Chamber
14 and not necessarily the witness.
15 I'm not quite sure, though. We saw this exhibit that you
16 exhibited. I didn't see anything that connects the statements that you
17 read with the witness's commander, so I'm not quite sure how he is
18 supposed to determine that those words, that we are KLA and KLA are us,
19 are his commander's words.
20 MR. EMMERSON: Well, there is testimony in the case to that
21 effect, Your Honour, and which has been admitted by agreement, in
22 relation to a witness who testified in the last case. The senior FARK
24 JUDGE MOLOTO: There may very well be testimony. But I'm not
25 sure how this witness, whom you are confronting with the intention to
1 find out whether he is prepared to change his position, is able to
2 determine that what you are telling him are his commander's words are,
3 indeed, his commander's words.
4 MR. EMMERSON: Can I respond to that.
5 He and the Tribunal can take it from me that they are his
6 commander's words. And they can take it from me because --
7 JUDGE MOLOTO: Are you test -- are you a witness?
8 MR. EMMERSON: No, no, no. It's a factual foundation for a
9 question, because there is agreed evidence from the Prosecution's own
10 witness who produced this diary and says, These are my own words.
11 JUDGE MOLOTO: Yeah. That may very well be so, sir. And,
12 indeed, the Trial Chamber might very well accept that. But if, as you go
13 in the manner in which are you going, trying to confront this witness
14 with document after document to find out whether he's going to change his
15 mind, then you've got to satisfy him that what you say are his commanders
16 words he can establish that, in fact, they are his commander's words --
17 MR. EMMERSON: It's -- it's -- it has the status of an agreed
18 fact, Your Honour --
19 JUDGE MOLOTO: -- otherwise he's not going to agree with you or
20 he's not going to change his position, and you're going to have to --
21 MR. EMMERSON: All right. Well, let me just take it with one
22 further question and then we'll leave the topic.
23 JUDGE MOLOTO: Right.
24 MR. EMMERSON:
25 Q. Witness 77, assuming that these are the words of your commander,
1 and he says that they are his words, are you prepared to accept that your
2 opinion at the time may have been mistaken?
3 A. I cannot say that. I am completely convinced in what I'm saying.
4 I can't remember that there has been such an agreement. And that's why
5 I'm repeating over and over again that there has not been an agreement.
6 At least not to my knowledge.
7 Q. Very well.
8 MR. EMMERSON: Can we go into private session, please.
9 JUDGE MOLOTO: May the Chamber please move into private session.
10 [Private session]
11 Pages 1447-1462 redacted. Private session.
3 [Open session]
4 MR. GUY-SMITH:
5 Q. So you've indicated that you were --
6 THE REGISTRAR: Your Honours, we are in open session. Thank you.
7 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
8 Yes, Mr. Guy-Smith, you may proceed.
9 MR. GUY-SMITH:
10 Q. When you indicated to Ms. Kravetz some days ago that your duties
11 in FARK were logistics, that was not accurate, was it?
12 A. It was accurate. This is how I see it, as logistics.
13 Q. With regard to how you see it as logistics, since you've told us
14 you were just a foot soldier, could you tell us what the duties are of a
15 foot soldier as opposed to someone who's involved in logistics?
16 A. My duty concerning logistics was, if something was missing in the
17 military kitchen, I had to go and find foodstuffs where I could, in the
18 free areas.
19 Q. So you were tasked, I guess, as a hunter/gatherer; is that
21 A. Yes. I was to find what the barracks needed.
22 Q. Who was your superior with regard to the issue of logistics? And
23 by that I mean: Who informed you of what was needed?
1 MS. KRAVETZ: Your Honour.
2 JUDGE MOLOTO: Yes, Madam Kravetz.
3 MS. KRAVETZ: Maybe we can go into private session. I think
4 we're in open session at the moment.
5 MR. GUY-SMITH: We are.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session]
1 [Open session]
2 MR. GUY-SMITH: I would suggest that if the Prosecution --
3 THE REGISTRAR: Your Honours, we are in open session. Thank you.
4 MR. GUY-SMITH: I would suggest that if the Prosecution is
5 seriously as concerned about the issue of protection as they assert,
6 that, rather than highlight the issue, they just ask for a simple
7 redaction. The fashion of resolution that I had suggested yesterday we
8 have used previously.
9 Q. Now let me ask you this particular question: With regard to the
10 individual who came and asked you to go hunt and gather, did this person
11 go to a series of people to do that or were you specifically tasked as
12 the individual who did that?
13 A. I was not the only one tasked with that.
14 MR. GUY-SMITH: I note the time.
15 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
16 We'll take a break and come back at quarter to 11.00.
17 Court adjourned. I beg your pardon. I'm sorry. May the Chamber
18 please move into closed session.
19 [Closed session]
4 [Open session]
5 THE REGISTRAR: Your Honours, we're in open session. Thank you.
6 JUDGE MOLOTO: Thank you so much.
7 We will take a break and come back at quarter to 11.00.
8 Court adjourned.
9 --- Recess taken at 10.19 a.m.
10 --- On resuming at 10.45 a.m.
11 JUDGE MOLOTO: Mr. Guy-Smith.
12 MR. GUY-SMITH: I would be happy to proceed, but I don't think
13 I'd get much of a response, Your Honour. Although it could perhaps
14 quicken the proceedings. It may be -- it may be an excellent resolution.
15 I would -- while we're in this position, may I suggest that we go
16 into closed session.
17 JUDGE MOLOTO: May the Chamber please move into closed session.
18 MR. GUY-SMITH: Unless, of course, we would all like to move to
19 the balcony where the sun is shining, as an alternative.
20 JUDGE MOLOTO: Is that a motion?
21 MR. GUY-SMITH: We'll I would make that motion.
22 JUDGE MOLOTO: Motion denied.
23 [Closed session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session. Thank
8 JUDGE MOLOTO: Thank you so much.
9 Mr. Guy-Smith.
10 MR. GUY-SMITH:
11 Q. As I understand your testimony, would it be fair to say that when
12 the cook needed some eggs or other food, that you went and tried to find
13 it, and that's what you mean by your duties in logistics?
14 A. No.
15 Q. You had nothing to do with medical supplies; correct?
16 A. Correct.
17 Q. You had nothing -- you had nothing to do with obtaining weapons
18 or ammunition; correct?
19 A. Correct.
20 Q. You had nothing to do with obtaining repair parts for any of the
21 weapons that were being used by the forces; correct?
22 A. Correct.
23 Q. Had you nothing to do with obtaining petroleum, oil, or other
24 forms of material assets used to transport either materiel or personnel
25 from one point to another during the conflict; correct?
1 A. For the petroleum, yes.
2 Q. You were tasked with obtaining petroleum?
3 A. Yes, if I could find some. But I was there when others brought
4 petroleum there.
5 Q. [Previous translation continued] ... that's not my question, sir.
6 You were tasked with obtaining petroleum; correct or not?
7 A. No.
8 Q. You were tasked with trying to find food; correct?
9 A. Some of the food.
10 Q. And when you told us that you were involved in logistics, that is
11 the issue that you were referring to, trying to find some food. That's
12 the sum total of what you were doing; correct?
13 A. Yes.
14 Q. You mentioned to us that you had heard about an individual named
15 Adem Lokaj being shot in the leg. Do you remember that testimony?
16 A. Yes.
17 Q. I'd like to suggest to you, and I want to make sure about
18 something here, that that individual's name was Adem Hulaj, H-u-l-a-j.
19 A. This is the first time for me to hear such a last name.
20 Q. The information that you received concerning Adem Lokaj, what
21 village did this incident occur in?
22 A. From what his son said, in Irzniq village.
23 Q. And the local commander of Irzniq village was Shemsedin Cekaj;
25 A. Yes.
1 Q. In your discussions with the Prosecution about this particular
2 incident, did you discuss that Shemsedin Cekaj had information about a
3 shooting incident involving Adem Hulaj in Irzniq?
4 A. No, I didn't have any conversation about Shemsedin Cekaj.
5 Q. When you came from Albania into Kosovo, were some of the officers
6 who came with you lieutenants?
7 A. I didn't understand your question.
8 Q. When you came from Albania into Kosovo, were some of the officers
9 who came with you of the rank of lieutenant?
10 A. I don't know.
11 Q. In Albanian, what is the word for the rank of lieutenant?
12 A. I don't know.
13 Q. I'm sorry, perhaps there was a -- an error in the transcription.
14 Did you say that you don't know what the word for lieutenant is
15 in Albanian?
16 A. No.
17 MR. GUY-SMITH: I have no further questions.
18 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
19 Mr. Harvey.
20 MR. HARVEY: No questions. Thank you.
21 JUDGE MOLOTO: Thank you, Mr. Harvey.
22 Madam Kravetz.
23 MS. KRAVETZ: I have a few questions, Your Honour. If we could
24 go into private session.
25 JUDGE MOLOTO: May the Chamber please move into private session.
1 [Private session]
22 [Open session]
23 THE REGISTRAR: Your Honours, we are in open session. Thank you.
24 JUDGE MOLOTO: Thank you.
25 MS. KRAVETZ:
1 Q. Sir, you were asked also on Tuesday about meetings that were held
2 between senior FARK officers and KLA officers after the FARK entered
3 Kosovo and it was put to you that there were three such meetings and you
4 said, at page 1228: "I have information about the first meeting and the
5 second one, but I'm not aware of the third meeting."
6 Where did this first meeting that you are aware of take place?
7 A. The first meeting was held in Jasiq.
8 Q. Where did the second meeting that you are aware of take place?
9 A. In Junik.
10 Q. You said also during your testimony that you saw Mr. Haradinaj at
11 one of these meetings. Could you tell us at which of these meetings you
12 saw him in attendance?
13 A. In the meeting held at Junik.
14 Q. Thank you.
15 MS. KRAVETZ: I have nothing further, Your Honour. Thank you.
16 JUDGE MOLOTO: Thank you very much, Madam Kravetz.
17 Judge? Nothing.
18 Thank you so much, Mr. Witness. That brings us to the end of
19 your testimony. Thank you for coming to testify at the Tribunal. You
20 are now excused. You may stand down, and please travel well back home.
21 [Trial Chamber and Registrar confer]
22 JUDGE MOLOTO: And before you do, may we go into closed session.
23 [Closed session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session. Thank
8 JUDGE MOLOTO: Thank you so much.
9 Madam Kravetz.
10 MS. KRAVETZ: Yes, Your Honour, we have two brief procedural
11 matters - or, at least, I hope this will not take too long - to deal with
12 before we adjourn for the day. And I'll yield the floor to Mr. Menon who
13 will be addressing Your Honours in relation to the first matter.
14 JUDGE MOLOTO: Thank you very much, Madam Kravetz.
15 Mr. Menon.
16 MR. MENON: Your Honour, I'd like to make an application to admit
17 into evidence Stanisa Radosevic's transcripts from the initial trial in
18 this case. The background to this application is as follows,
19 Your Honour:
20 The Prosecution applied on the 27th of June, 2011, to have this
21 witness's transcripts from the initial trial admitted pursuant to
22 Rule 92 bis. On the 22nd of July, the Trial Chamber granted that
23 application subject to compliance with certain conditions. Those
24 conditions were either to redact references to documents that are
25 referred to in Mr. Radosevic's transcript from the initial trial but
1 which were not tendered with his -- which were not tendered with the
2 Prosecution's 92 bis motion, or, alternatively, to tender those missing
3 documents with the agreement of the Defence.
4 What we've done is we've identified the documents that were
5 referred to in Mr. Radosevic's transcript from the initial trial, which
6 we failed to tender with our 92 bis motion. We've notified that to the
7 Defence. The Haradinaj Defence team indicated to us on the
8 23rd of September that they did not object to the admission of those
9 documents. I spoke with my learned colleagues from the Balaj and
10 Brahimaj teams this morning and they indicated that they would not object
11 to the admission of those documents.
12 So at this stage what we'd seek to have admitted - and I can read
13 out the numbers - are the transcript of Mr. Radosevic's testimony, the
14 public redacted version and the confidential version, as well as the
15 documents that are referred to in those transcripts. And I'll read that
16 out for the record.
17 The public redacted version of Mr. Radosevic's testimony is
18 marked as 65 ter 4061. The confidential version of Mr. Radosevic's
19 testimony is marked as 4062. And then the documents referred to in his
20 transcript are marked as 65 ter numbers 3101, 3102, 3103, 3104, 3105,
21 3106, 3107, 3108, 3110. And obviously 65 ter 4062 would need to be
22 admitted under seal 4062.
23 JUDGE MOLOTO: Which one is to be admitted under seal?
24 MR. MENON: 65 ter 4062, which is the confidential version of
25 Mr. Radosevic's prior testimony.
1 JUDGE MOLOTO: Thank you very much, Mr. Menon.
2 Mr. Emmerson.
3 MR. EMMERSON: No objection.
4 JUDGE MOLOTO: Can I confirm?
5 MR. EMMERSON: Yes.
6 JUDGE MOLOTO: Mr. Guy-Smith.
7 MR. GUY-SMITH: There is no objection to the admission in light
8 of the Chamber's ruling. We do, for the record, maintain our position
9 with regard to the lack of relevance of this information.
10 JUDGE MOLOTO: Mr. Harvey.
11 MR. HARVEY: No objection.
12 JUDGE MOLOTO: Thank you so much. The all those 65 ter numbers
13 are admitted and may they please be given an exhibit number. 4062 to be
14 admitted and given an exhibit number under seal, Mr. Registrar. I
15 suppose you can do that out of court and just notify the Court of your
16 exhibit numbers.
17 THE REGISTRAR: Yes, Your Honours. Internal memorandum shall be
18 filed as soon as numbers have been assigned. Thank you so much.
19 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
20 Yes, Mr. Menon.
21 MR. MENON: I will yield the floor to Ms. Kravetz, who will
22 address Your Honours on the second issue.
23 JUDGE MOLOTO: Madam Kravetz.
24 MS. KRAVETZ: Thank you, Your Honour. The second issue concerns
25 the witness scheduling for next week.
1 I was informed during the break - and I know also Mr. Rogers has
2 sent an e-mail to the parties and the Chamber on this - that we are in a
3 position to re-call Witness 75 towards the latter part of next week in
4 order to allow him to complete this witness, and this is if the Defence
5 are in a position to continue the cross-examination or if Your Honours
6 consider it appropriate that he should be re-called next week.
7 VWS requires a minimum of five days of notice. That's why I'm
8 raising the issue today, just to inquire with the Chamber whether we
9 should be scheduling him to come back next week.
10 I know my learned colleagues had indicated at the beginning of
11 the week that they did not consider they were in a position to continue
12 cross-examination, but I don't know if that position has changed during
13 the course of the week. That's why I'm raising the matter. Thank you.
14 JUDGE MOLOTO: Before I recognise you, Mr. Emmerson, let me just
15 raise one of two things with Madam Kravetz.
16 Madam Kravetz, one, I am under the impression, and I might be
17 wrong, that there is a decision pending on this issue, on this witness.
18 And I'm not quite sure whether the Prosecution is going to re-call this
19 witness without knowing the content of that decision and what might be
20 instructed in that decision.
21 Secondly, I thought that the reason the Defence was not able to
22 carry on with the cross-examination in the first place was because there
23 were certainly things that they wanted to have done. Whether those have
24 been done, I do not know. And if they have not been done, I'm not quite
25 sure how it can be expected that their position would have changed.
1 Mr. Emmerson.
2 MR. EMMERSON: Your Honours anticipated the submissions that are
3 going to come in response.
4 The reason why -- or the reasons, in the plural - there are two
5 of them - why the Defence are not in a position to continue with the
6 cross-examination of Witness 75 are, firstly, that there is a pending
7 motion seeking a censure of Senior Trial Attorney Paul Rogers for
8 breaches of his Rule 68 duties. And until that motion has been ruled
9 upon, and that motion includes requests for the Trial Chamber to get to
10 grips with the Prosecution's approach to disclosure and to make certain
11 orders ensuring that the disclosure regime is properly implemented in the
12 future, until that motion has been ruled upon, it is impossible for us to
13 continue. That's the first thing.
14 The second reason, and I'll yield to Mr. Harvey to elaborate upon
15 it, but arising out of the -- the items of disclosure which were pulled
16 from Mr. Rogers's grasp document by document, there have been further
17 disclosure requests, because that which has been disclosed indicates that
18 additional material is potentially disclosable too. So that there are
19 two quite separate and independent reasons why this suggestion, I'm
20 afraid, is not a workable one.
21 And whilst we have some sympathy with the Prosecution's desire to
22 use the time, we remain, frankly, mystified as to how it can come about
23 that Witness 3, who was scheduled to be here, was left in a situation
24 where arrangements were not made by the Prosecution sufficiently far in
25 advance to ensure that he had travel documents to attend.
1 JUDGE MOLOTO: Mr. --
2 MR. GUY-SMITH: Just so you know, very simply, my position
3 remains the same as it was before: No, I'm not ready to proceed. Once
4 these matters are resolved, I will be ready to proceed.
5 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
6 Mr. Harvey.
7 MR. HARVEY: Your Honour, I really have nothing to add. I think
8 both Mr. Emmerson and Mr. Guy-Smith have laid out the ground
9 sufficiently. We are still waiting for the Prosecution to comply with
10 their obligations.
11 JUDGE MOLOTO: Thank you very much, Mr. Harvey.
12 Madam Kravetz, do you have any response, or ...
13 MS. KRAVETZ: I understand the position that the Defence has not
14 changed. We were aware there was a decision pending. It was my
15 understanding that it was to be expected imminent --
16 JUDGE MOLOTO: It will come as soon as possible.
17 MS. KRAVETZ: With regard to Witness 3, I just want to make a
18 clarification in that matter.
19 We sent out an RFA to the country where he is residing in July, I
20 believe. I mean, it was sent some months ago. And why this hasn't been
21 processed until now is completely outside our knowledge or
22 [indiscernible] --
23 JUDGE MOLOTO: [Overlapping speakers] ...
24 MS. KRAVETZ: Yes, that's ... thank you.
25 JUDGE MOLOTO: Thank you, Madam Kravetz. What --
1 Yes, Mr. Emmerson.
2 MR. EMMERSON: Simply - and it may be Your Honour is about to
3 move on to this - the implication, the result of the position that we are
4 in, is that there is no further evidence to call in this session. And
5 that being the case, I think all parties need to be clear that that is
6 the position, because obviously otherwise there could be
8 JUDGE MOLOTO: That's the way I was going to move towards.
9 And would you confirm that, Madam Kravetz?
10 MS. KRAVETZ: That has already been confirmed in the e-mail that
11 Mr. Rogers sent out --
12 JUDGE MOLOTO: Sure.
13 MS. KRAVETZ: -- this morning to the parties and to the Chamber.
14 And -- that was the e-mail I was referring to earlier, what we have said.
15 JUDGE MOLOTO: Thank you very much. It's only proper that we
16 place it on record. The e-mail is not on record, unfortunately.
17 Thank you. Now, Madam Kravetz, while you are on your feet, given
18 the situation as it is, is the Prosecution in a position to indicate who
19 the next witness might be, outside the other witnesses that we've been
20 talking about, 75 and 3, and what have you, and is there any witness that
21 the Prosecution can call, and when?
22 MS. KRAVETZ: The witnesses who are outstanding to be called are
23 Witness 80; Witness 81, who will be called during the next sitting
24 period; Witness 3, who now will also be called during the next sitting
25 period; and Witness 75.
1 JUDGE MOLOTO: Those are all the witnesses?
2 MS. KRAVETZ: Yes.
3 JUDGE MOLOTO: Okay. So we adjourn sine die. Is that the
5 MS. KRAVETZ: We adjourn until the next sitting period that has
6 been scheduled by Your Honours.
7 JUDGE MOLOTO: Okay.
8 MS. KRAVETZ: So I believe that's the 25th of October. Yes, I
9 believe that's the --
10 JUDGE MOLOTO: Okay. Thank you very much, Madam Kravetz.
11 Mr. Harvey, I see you're also on your feet.
12 MR. HARVEY: Your Honour, just this: Ms. Kravetz indicates that
13 they will call Witness 80 in the next sitting period. Does that mean
14 that we have an update of the investigation to give us some kind of
15 understanding what is meant by "they will call"?
16 MR. EMMERSON: Witness 81, I think. I'm sorry, I think it may be
17 that Mr. Harvey misread the transcript there. I think what Ms. Kravetz
18 was saying was that Witness 81 would be called in the next session.
19 JUDGE MOLOTO: No, she also meant 80 -- she also mentioned 80.
20 MR. EMMERSON: Yes, she did.
21 JUDGE MOLOTO: She did mention 80 and --
22 Madam Kravetz, we are all aware of certain investigations about
23 Witness 80.
24 MS. KRAVETZ: This might just be an error in the transcript.
25 Your Honour had inquired who were the outstanding witnesses.
1 JUDGE MOLOTO: Sure.
2 MS. KRAVETZ: I said Witness 80 was one of the outstanding
4 JUDGE MOLOTO: An outstanding witness.
5 MS. KRAVETZ: Witness 81 will be called during the next sitting
7 JUDGE MOLOTO: I see.
8 MS. KRAVETZ: Witness 3 will be called during the next sitting
10 JUDGE MOLOTO: Okay. My apologies.
11 MS. KRAVETZ: I -- at this stage, I cannot say when exactly
12 Witness 80 will be called.
13 JUDGE MOLOTO: My apologies. My apologies.
14 MR. GUY-SMITH: Excuse me, Mr. Emmerson.
15 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
16 MR. GUY-SMITH: Since the issue of Witness 81 has arisen, I wish
17 to alert to the Court there are issues outstanding with Witness 81 which
18 I do not know if they will be resolved before the next sitting period or
19 not. There's a motion outstanding with regard to that witness; I want to
20 alert the Chamber to it now because I do not wish to be in a position
21 where we are losing time in the weeks to come by virtue of the fact
22 there's been a lack of resolution of certain issues. So I'm just
23 alerting the Chamber to the fact of the outstanding motions and requests
24 with regard to that witness.
25 JUDGE MOLOTO: And you can rest assured, Mr. Guy-Smith, that the
1 Chamber is doing its damndest to --
2 MR. EMMERSON: I'm sure that's the case. I just didn't want to
3 be in a position where all of a sudden we have our next sitting period
4 and there's a frustration level or an inability to do work because things
5 have not been taken -- things have not been taken care of or resolved
6 before that time.
7 JUDGE MOLOTO: Thank you.
8 Yes, Mr. Emmerson.
9 MR. EMMERSON: Can I just deal with two matters. The first
10 follows on from the point that Mr. Guy-Smith has just raised, and I think
11 is only right to give Your Honours an indication of what the present
12 position is, and I think I can do this in open session.
13 The Prosecution have served a witness statement dated the
14 26th of November.
15 JUDGE MOLOTO: [Microphone not activated]
16 MR. EMMERSON: Pardon?
17 JUDGE MOLOTO: Which witnesses?
18 MR. EMMERSON: I'm sorry, I'm focussing on the same witness that
19 Mr. Guy-Smith dealt with, Witness 81, who is said to be definitely
20 scheduled for the next session.
21 So the Prosecution served a witness statement dated and signed
22 the 26th of November, 2010, but which records that it is the result of
23 interviews conducted on the 23rd, 24th, 25th, and 26th of November, 2010,
24 that contains an account. On the 8th of December, 2010, so about just
25 over a week later, nearer ten days, 12 days later, the Prosecution served
1 a further witness statement relating to interviews conducted on the
2 7th and 8th of December. And that further witness statement consists of
3 a very detailed account of the manner in which the witness had changed
4 his account on highly material particulars. In other words, it indicates
5 that the statement that was served on the 26th is the product, the final
6 version, of a series of accounts that the witness had given in the
7 interviews between the 23rd and the 26th, and that during those
8 interviews he had said -- if I can just take an analogy, he has said
9 black is white, he now says white is black and he seeks to explain it.
10 But what is missing is any record of what he originally told the
11 Prosecution, any contemporaneous record. We have requested the
12 contemporaneous records because, as Your Honours will see in due course,
13 these are not minor changes. There are axiomatic to his testimony, and
14 there are many of them. So naturally the Trial Chamber will want to know
15 and have a proper record of what he actually told the Prosecution first
16 time round, not simply his account 12 days later of what he told them and
17 how it had changed and why, but actually what he did tell them and how it
18 was recorded. There must be, obviously, contemporaneous notes of each of
19 these various sessions.
20 And their times are recorded with specificity in the second
21 statement. So, for example, there was one between 9.30 and 1.00 on the
22 25th, each of them interviews, times as recorded. And in the statement
23 of the 8th of December, it is clear that whoever took the statement and,
24 it was Mr. Versonnen, in both cases, who recorded it, both the original
25 and the subsequent statement, although Mr. Rogers was present during the
1 interview process that led up to the first statement. It's perfectly
2 clear that whoever took the second statement had a detailed record of
3 these various changes because each of them is put to him. So, for
4 example, it will say, During the interview on the 23rd, I said black was
5 white. In fact, by the 26th, in my statement, I was saying white is
6 black, and now let me explain why that was. So each of the changes is
7 recorded by reference to what must have been a contemporaneous note, as
8 one would expect, of what he'd said at the time.
9 Now, you're going to need that note. There's no question about
10 it. In order to assess the testimony of what is a very shreddy witness,
11 you're going to need that note or those notes. So we've asked for them
12 in correspondence. And the response that we got, surprising as
13 Your Honours may find it, is this: That the final product that was
14 signed on the 26th consisted simply of a document that kept on being
15 amended throughout the interview process with no permanent record being
16 kept of the original version. Now, Your Honours will know that even if
17 that were the case and nobody else had kept a note, on a computer if a
18 document is amended there is a record of what was originally written
19 still on the hard drive. So we've asked for that. And now we've been
20 told the hard drive was wiped.
21 Now, I would be very, very surprised, indeed, as a responsible
22 lawyer if Mr. Rogers and Mr. Versonnen did not have their own manuscript
23 notes that they would have been taking as the meetings were going on.
24 But -- but, I mean, if Your Honours will take it from me that we're not
25 dealing with, you know, changes of distance or changes of detail, we're
1 dealing with very, very fundamental, multiple changes. It -- it must be
2 the position in due course that the Trial Chamber is going to need to
3 explore what that witness said on the 23rd, what he said on the 24th,
4 what he said on the 25th, what he said on the 26th. And whoever took the
5 statement on the 8th and 9th - Mr. Versonnen was the statement taker -
6 they clearly had before them some record at that time of what the witness
7 had said in each one of those interviews because they were putting it to
8 him and asking him how it had changed in the final product.
9 So I'm raising this now so that Your Honours are alerted to the
10 fact this is not some knit-picking Defence issue. This is -- this goes
11 to the only, as we currently stand here today, live witness that the
12 Prosecution is seeking to call to give direct testimony about the acts
13 and conduct of Ramush Haradinaj, the one position that they're in a
14 position to call. And it is absolutely fundamental stuff.
15 So we are -- having now drawn a blank with the Prosecution, we
16 had asked the Trial Chamber to order certain items of disclosure but the
17 Trial Chamber ruled at the time that because the application was made
18 before the witness's identity had been revealed that it was premature
19 because the Prosecution would be required to disclose all that material
20 under Rule 68 when they revealed the witness's identity. Well, you now
21 have the full story. And we're being told at the moment, astonishing
22 though it seems to be, that any contemporaneous record that there was was
23 overwritten on the computer and then wiped.
24 Well, we do not accept that explanation because the meeting of
25 the 8th and 9th is a statement or results of a statement where the
1 statement-taker clearly had available to him a detailed account of what
2 had been said in each of the interviews.
3 So I put everybody on the notice of the fact that we're going to
4 need to dig deep in this situation. Mr. Versonnen will be need to be
5 made available to the Trial Chamber. And I have no doubt at all that in
6 due course the Trial Chamber will wish to have him called as a
7 Trial Chamber witness to explain what's happened in relation to the
8 records of these interviews. I'm simply saying that at the moment
9 because anticipating the way that the judicial mind works, I can see no
10 way in which this matter could be fairly resolved without Mr. Versonnen
11 being tendered for cross-examination.
12 We are not proposing to engage in further correspondence with the
13 Prosecution in relation to this. We are proposing to file a motion. We
14 need to get to the bottom of how on earth it could come about that this
15 Prosecution, given that Mr. Rogers was personally involved in the
16 process, could have resulted in the wiping of the records that are going
17 to be necessary for this Trial Chamber to conduct an evaluation of
18 credibility in relation to this witness. And all of that will form now
19 the basis of a motion in relation to Rule 68. It may be that there will
20 be a further application for censure, but that may depend upon what takes
21 place and what emerges in the course of this process. But it would
22 certainly assist in that process to have Your Honours' ruling in relation
23 to the first censure application before we make the second one.
24 But it's very likely that there will be a motion to the
25 Trial Chamber. We aim to file it within the next couple of days. And I
1 say that simply because it reinforces the point that Mr. Guy-Smith has
2 made, which is, it's not going to be any good this Prosecution turning up
3 on the 25th of October and saying, Here is the witness, or, We can get
4 him here, when they haven't done what they are required to do under
5 Rule 68. Unless it really be the truth that neither Mr. Rogers nor
6 Mr. Versonnen took any notes themselves during the course of those
7 interviews, which would be, frankly, astonishing.
8 So that -- I alert the Trial Chamber to that position because it
9 may well be that we are in a difficult position on the 25th if the
10 Prosecution do not get their act together.
11 So that's the first thing.
12 The second thing is - and I'm only mentioning this for the record
13 at this stage - I'm going to be writing a confidential letter to the
14 Prosecution and the Trial Chamber within the next 48 or 72 hours to
15 explain, for reasons that I cannot mention in open court, I cannot be in
16 court on the 3rd of November. I'll explain what the reasons are. That
17 is the Thursday of the second week of the current sitting schedule. And
18 I'm going to make certain applications in relation to that particular
19 day, but I'll make them in writing and I'll do so in confidence to the
20 Prosecution and the Trial Chamber.
21 JUDGE MOLOTO: And your co-counsel will be present on that day?
22 MR. EMMERSON: My co-counsel will be present.
23 JUDGE MOLOTO: Fine. Thank you so much.
24 I don't imagine that there's a response called for. I'm sure
25 we've heard what Mr. Emmerson said on the first point, and I'm sure the
1 Prosecution has taken on board what he has said.
2 Can I raise one little issue before we adjourn. I mentioned
3 earlier, I think either today or yesterday, that I -- there is an issue
4 that the Chamber would like to raise with the parties regarding this
5 whole question of private, open, closed session, and redactions.
6 CMSS - I think it's CMSS - which approached the Chamber to say
7 that when a redaction is being asked for one word, it creates problems
8 technically within CMSS to deal with that because while you can -- on the
9 transcript you can redact the one word, it is not possible to do so in
10 the audio. So in the audio it redacts a whole chunk. It might be a
11 whole sentence, it might be a whole or part of a paragraph, or whatever.
12 And it therefore becomes difficult to deal with those kind of orders from
13 the point of view of CMSS.
14 Secondly, they say when we are in open session and somebody says,
15 "X --" and then, "Oh, sorry, sorry, can we move into private session
16 quickly," or, "Can we --" ... that hasn't got much of an effect because
17 at that stage, by the very reaction, the public has been alerted and the
18 attention has been drawn to just that last word that was mentioned, and
19 you might as well just ask for a redaction rather than say, Let's go into
20 private session for purposes of redacting. And this was made by
21 Mr. Guy-Smith this morning, this point.
22 From the CMSS's point of view, and I'm not quite sure,
23 Mr. Registrar, whether I'm going to be representing the view correctly
24 here - correct me if I'm not - it seems more workable that we stay in
25 private session to deal with issues that need to be dealt with
1 confidentially and move out of private session to deal with issues that
2 can go into open session. This question of a sudden jump into private
3 session or a sudden redaction because a slip has been made is causing
4 some logistical problems within CMSS.
5 I am aware of the fact that Mr. Registrar, who is in court, is
6 not the one who told me -- who told the Chamber this, and the person who
7 did is not here. I hope Mr. Registrar might know, and if he doesn't
8 know, we might have to carry on with this discussion later when that
9 person is there. But that's what I wanted to put to the parties.
10 Are there comments?
11 Starting with you, Madam Kravetz.
12 MS. KRAVETZ: Your Honour, no comments.
13 JUDGE MOLOTO: Mr. Emmerson.
14 MR. EMMERSON: Your Honour, no.
15 JUDGE MOLOTO: Mr. Guy-Smith.
16 MR. GUY-SMITH: None.
17 JUDGE MOLOTO: Mr. Harvey.
18 MR. HARVEY: Even less.
19 JUDGE MOLOTO: Even less.
20 Now, from the Chamber's point of view, therefore, there is a need
21 for a modus operandi, modus vivendi, whatever you call it, on this issue
22 so that we can accommodate the concerns of CMSS, still maintain as open a
23 hearing as we probably can, and still recognizing the right of the
24 victims and witnesses to be protected.
25 So the reason for the Chamber putting this before you is: What
1 kind of modus vivendi henceforth can we come up with to make our lives
2 comfortable and accommodate every concern?
3 Anything? Madam Kravetz, you have no suggestion?
4 MS. KRAVETZ: Well, my suggestion would that be when the -- any
5 of the parties are dealing with matters which would potentially identify
6 protected witnesses that we deal with that evidence in private session.
7 That is what I -- the way I proceeded with Witness 77 when I led him in
8 direct. I note that all the remaining witnesses are all protected
9 witnesses, so we're going to have this problem coming up in the days that
10 remain of sitting. So that would be my suggestion, that if questions are
11 going to be put that potentially will result in information from the
12 witness that may identify the witness that that be dealt in closed
13 session. I'm sorry, I mean private session.
14 MR. EMMERSON: In terms of modus operandi, I'm sure that all
15 parties are agreed that private session should be used to the minimum
16 degree necessary in order to ensure that protected information is not
17 released in public.
18 And there are two ways of going about it. There's the
19 over-cautious approach where everything is in private session and then
20 the redacted version of the transcript is released. Or there's, if you
21 like, what I might call the other end of the spectrum, where one is
22 jumping in and out of private session all the time. Now, the
23 disadvantage of the latter course is not only a technical one. It's also
24 in terms of the fluidity of the evidence and the ability of the
25 Trial Chamber and the parties to follow the thread of cross-examination
1 or, indeed, the witness or cross-examiner to do so.
2 Now, I think Mr. Harvey had a particular difficulty with the last
3 witness because he -- as originally envisaged, he was planning a
4 cross-examination which referred to a large number of individuals who
5 were in one way or another related to the witness. And that placed him
6 in a major logistical difficulty in the way in which he proceeded. But I
7 would have thought that the ordinary course - I mean, Ms. Kravetz took
8 this approach with Witness 77 - was to take that particular incident in
9 private session because the public evidence about that incident
10 concerning a limited number of people might have resulted in
11 identification. And that was the same approach that was taken in
13 But as Your Honours saw when I was cross-examining the witness
14 about, for example, the testimony of somebody who was a protected witness
15 in the first trial, I simply went into private session to make sure that
16 the witness understood who it was I was referring to when using a
17 particular form of words. Well, that's exactly what Mr. Harvey was
18 trying to do as well. It's just that he had a practical problem because
19 there were so many people who fell into that category. But I would have
20 thought that with common sense and care -- and obviously subject to
21 mistakes, because people do make slips in open session. We all do it
22 from time to time. But subject to that, with appropriate caution and
23 care it would be wrong to move to the opposite end of the spectrum and to
24 be in private session out of an abundance of caution, merely than to
25 release a transcript thereafter.
1 We're dealing -- in particular with the witness that I mentioned
2 to Your Honours earlier on, we're dealing with a witness about whom the
3 wider public has a right to know what is being put to this man about his
4 credibility and the sort of man the Prosecution is prepared to rely upon.
5 And it would be totally wrong if his evidence were heard in private
6 session, because it's fundamental and it's flawed to a degree which the
7 public are entitled to follow, because there will be questions being
8 asked naturally as a matter of public interest about what the Prosecution
9 thinks it's doing in calling this witness, and that's not something that
10 can be divined from a redacted transcript issued days later.
11 And so we would respectively submit that the correct
12 modus operandi is this: Everyone takes care to ensure that we are not
13 jumping in and out of private session but that we do private session
14 material in a block. And where it's necessary to lay down parameters for
15 what's going to be said in open session and what it relates to, that be
16 laid down in a block rather than in and out all the time. Everybody, as
17 is inevitably the case, does their best not to mention identifying names
18 or information in public session. And no doubt all parties and the Bench
19 will be vigilant to ensure that if anybody slips, the matter be picked up
20 as soon as is possible. And certainly names, when they arise, are
21 usually picked up instantaneously.
22 I -- I -- I think rather than, so to speak, try to set up a
23 protocol, the effect of which would inevitably be to push us towards a
24 greater and greater degree of privacy and closed procedure, particularly
25 in relation to the witness that we're referring to and Witness 80, we
1 would respectively submit that the right approach is to ask all counsel
2 to think in advance about what the distinction is between private and
3 public and to aim to do the private session material in one block, or at
4 least in blocks, so that one doesn't have a process of jumping in and out
5 of private session whenever an issue comes up.
6 I hope that's a helpful way forward.
7 JUDGE MOLOTO: Very briefly, Mr. Guy-Smith, would you go along
8 with that?
9 MR. GUY-SMITH: Yes, I fully concur with Mr. Emmerson's remarks.
10 I'm pretty sure that the Chamber appreciates my concerns and my large
11 protestation that as much of the trial can be in public as possible, and
12 whenever we go into private session I become terribly concerned.
13 JUDGE MOLOTO: I can assure you, Mr. Guy-Smith, that without your
14 protestations that is a major concern also for the Chamber.
15 MR. GUY-SMITH: I appreciate -- [Overlapping speakers] ...
16 JUDGE MOLOTO: [Overlapping speakers] ...
17 MR. GUY-SMITH: I appreciate that fully.
18 JUDGE MOLOTO: Thank you so much.
19 Mr. Harvey, I believe you're also going to be very brief.
20 MR. HARVEY: Yes, you're right, Your Honour. I adopt what
21 Mr. Emmerson has said. He reflects quite correctly what my difficulty
22 was yesterday's. That is a difficulty that I will take every possible
23 step to ensure is not encountered in the future. And I think the idea of
24 blocking the questioning is exactly the best way to deal with it. And I
25 also am very well aware the Trial Chamber shares our concerns. We want
1 this to be a totally public trial to the absolute maximum extent.
2 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
3 MR. HARVEY: Thank you.
4 JUDGE MOLOTO: Do we now stand adjourned to the 25th?
5 And ...
6 Okay. Then we -- Court adjourned to the 25th --
7 [Trial Chamber and Registrar confer]
8 JUDGE MOLOTO: In the morning, 9.00, Courtroom I.
9 Court adjourned.
10 --- Whereupon the hearing adjourned at 11.40 a.m.,
11 to be reconvened on Tuesday, the 25th day of
12 October, 2011, at 9.00 a.m.