Tribunal Criminal Tribunal for the Former Yugoslavia

Page 340

 1                           Thursday, 23 July 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 10.01 a.m.

 6             THE REGISTRAR:  Good morning, Your Honour.  This is case number

 7     IT-95-5/18-PT, the Prosecutor versus Radovan Karadzic.

 8             JUDGE BONOMY:  Thank you and good morning to everyone.

 9             Mr. Karadzic, you appear again on your own.  Can you confirm to

10     me, please, that you're hearing translation into your own language.

11             THE ACCUSED: [Interpretation] Yes, Your Lordship.

12             JUDGE BONOMY:  Thank you.  Can I have appearances, please for the

13     Prosecution.

14             MR. TIEGER:  Good morning, Your Honour.  Alan Tieger,

15     Hildegard Uertz-Retzlaff and Iain Reid for the Prosecution.

16             JUDGE BONOMY:  Thank you.  I issued a fairly brief agenda

17     indicating the things that parties might at least prepare to deal with.

18     There may be other matters that will be raised once we've gone through

19     this.  So I'll start at the beginning, and the first item relates really

20     to -- well, it may be that it's the Prosecution that can elaborate on

21     this for me.

22             The Chamber was invited to reconsider its decision about how

23     contact might be made by Mr. Karadzic and those working for him with

24     Prosecution witnesses and agreed to reconsider in light of the fact that

25     the parties themselves were more or less agreed on what was the

Page 341

 1     appropriate course to follow.  So can I be updated, please, on what has

 2     happened since that decision of the 15th of July.

 3             MS. UERTZ-RETZLAFF:  Your Honour, the procedures between the

 4     associates, the Prosecution, and the victim witness section have been

 5     established.  There are liaison persons on all sides.  The Prosecution

 6     has received a list of 85 through the witness victim section, 85 priority

 7     witnesses.  For 70 of them the contact details were provided immediately.

 8     To our knowledge the victim witness unit is contacting people in relation

 9     to 15 witnesses, some details on the contacts had to be clarified.

10     Several RFAs were filed.  So it's actually progressing.

11             In relation to the witness list for the 92 bis witnesses, I'm

12     also aware that the Defence has sent such a list to the victim witness

13     section and we are providing the contact details on a rolling basis.

14     It's actually working.

15             JUDGE BONOMY:  Now, can I just firm up some of the detail.  The

16     70, I think you mentioned that were -- sorry, 85, was it?

17             MS. UERTZ-RETZLAFF:  85 is the list of priority witnesses, mostly

18     insiders actually.

19             JUDGE BONOMY:  Laying aside the ones that had to be clarified,

20     have you a date for the transmission of the contact details to the

21     victims and witnesses section?  Can you tell me when that happened?

22             MS. UERTZ-RETZLAFF:  I think it was actually on the same day or

23     the next day, but I'm not actually sure now.

24             JUDGE BONOMY:  So are we talking about roughly a week ago that

25     this has actual -- was actually happening or was it at the beginning of

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 1     the week or -- of this week or what?

 2             MS. UERTZ-RETZLAFF:  I would not know that.  I only know that it

 3     was done immediately on the same day, actually, when we received the list

 4     actions were taken.

 5             JUDGE BONOMY:  Okay.  And in relation to 92 bis witnesses, and

 6     you talk about the details being provided on a rolling basis, has the

 7     roll started to move?

 8             MS. UERTZ-RETZLAFF:  It's starting actually today, yes, because

 9     the witness unit is actually dealing at the moment with this other 70,

10     and -- yeah.  There was -- the list had actually be changed because of

11     the withdrawals, and this -- so a new list had to be prepared.  We

12     assisted the associate in doing this and it was then done.

13             JUDGE BONOMY:  Thank you, Ms. Uertz-Retzlaff.

14             Mr. Karadzic, is there anything you wish to say on this subject?

15             THE ACCUSED: [Interpretation] Just that we are ready the moment

16     we receive the necessary consent and all the details to get in touch with

17     witnesses so that either I can interview them here or my associates in

18     Serbia or Republika Srpska or in Bosnia.  And in that respect, there

19     shall be no delay on our part.  We will be ready.  We have a lot of

20     associates who are working pro bono for the time being, but we hope to

21     settle that as well.

22             JUDGE BONOMY:  Thank you.  While on the subject of witnesses, I

23     want to look at a number of matters associated with protective measures.

24     We are, as I think I indicated at the last Status Conference, in the

25     course of preparing a chart that records the Trial Chamber's

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 1     understanding of the protective measures which are actually in force from

 2     whatever source and apply at present in this case.  We think it's helpful

 3     to resolve these issues before the trial starts.  We acknowledge that

 4     because there are so many and the whole issue is so complex there may yet

 5     be inaccuracies in the chart, but if there are, I suspect they are very

 6     few and very minor.  However, the parties have an opportunity very

 7     shortly to look at this chart and to make comments, and there will be an

 8     order probably issued today which will give a dead-line for responding to

 9     this.

10             The -- yes.  The likely date will be the 7th of August, so that

11     would be two weeks from now, but it's simply a question of checking this

12     against your own records.  And while you may decide no comment is

13     necessary because it's completely accurate, it would be helpful to be

14     told that you had checked it and that you had found it so rather than

15     just leave us to await the expiry of the 14 days before taking any

16     further action, because we then propose making an order just containing

17     the final version, which of course will have to be altered and updated as

18     any other decisions are made not only in relation to applications that

19     the Prosecution might make for other reasons as the trial goes on but

20     also updated to reflect any application Mr. Karadzic may make for

21     protective measures for any witnesses he intends to lead and also to

22     reflect any modifications that are made, because I anticipate that he

23     will make applications to vacate or modify the measures for certain

24     witnesses.  So it will be updated on a regular basis, but at least we

25     will not constantly have to go back and recheck the foundation for each

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 1     one if we're all agreed now on the terms of the chart.

 2             At the last meeting, Ms. Uertz-Retzlaff, you gave an indication

 3     that a certain number -- it was a limited number of witnesses had

 4     indicated they longer requested the protective measures which had been

 5     granted.  I think there may have been only three, from memory, but there

 6     were some.

 7             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

 8             JUDGE BONOMY:  Now, no application has been made to vacate any of

 9     the protective measures that might have applied to such witnesses.  Are

10     you intending to make such submissions?

11             MS. UERTZ-RETZLAFF:  Yes, Your Honour.  I thought we did, but it

12     may have escaped my attention.

13             JUDGE BONOMY:  Nothing has been done so far, so it would be

14     helpful if that could be done forthwith, because it's again an

15     administrative matter that we ought to be able to resolve now.

16             Now, Mr. Karadzic, there has been an exchange of filings about

17     the protective measures for witnesses who have subsequently died.  There

18     were two in particular, and you eventually withdrew your request to vary

19     these measures in light of the information given by the Prosecution, and

20     all of that will be reflected in the order which will accompany the

21     chart.

22             One of the other things you asked was that the Prosecution should

23     do the same exercise for any other witness who has since died, but you've

24     now been advised that there are no other witnesses who fall into that

25     category and therefore that seems to be an unnecessary request now.  The

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 1     request was perfectly legitimate, but now that the position has been

 2     clarified there will be no need for any action to be taken on it.

 3             Now, of before I move off the issue of -- the broad issue of

 4     witnesses and protective measures, is there anything else you wish to say

 5     on that subject?  I shall come later to the question of expert witnesses,

 6     so lay them aside, but in relation to witnesses in general and protective

 7     measures, do you wish to say anything further?

 8             THE ACCUSED: [Interpretation] Yes, Your Lordship, and I hope I

 9     shall never fail to file certain motions concerning protective measures,

10     because the Defence has a position against them.  It's a principled

11     position, because we want this trial to be as transparent as possible,

12     and we hope that it will be so and that my rights will be protected in

13     the courtroom.  And except for the victims, in relation to whose

14     protective measures I shall not take a stand, nobody else is entitled to

15     have protective measures, because I don't think that any harm came to

16     anybody who was involved in these trials, especially not Serbs, and I

17     have -- and I see no reasons, either be it for the representatives of the

18     international organisations or for insiders to have any sort of

19     protective measures.  I hope that this trial can be a model for future

20     trials and that things need to be done properly, and for such broad

21     protective measures to be in existence, that really casts a shadow over

22     these proceedings.

23             JUDGE BONOMY:  Well, you know from the last Status Conference

24     that the Trial Chamber is conscious of this as an issue.  How to resolve

25     it is a matter which will be determined on a case-by-case basis as we

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 1     progress.

 2             It's impossible to give effect to your general motion to vacate

 3     protective measures, but in the order I've referred to earlier,

 4     accompanying the chart, it is made clear that it's necessary to identify

 5     the witnesses that are not victims that you seek to have a change made in

 6     the protective measures for.  So that's an exercise that you will have to

 7     undertake.  You may need assistance from the Prosecution to identify

 8     exactly which ones are victims, but by now you've probably got enough

 9     information to do that.  I know it's a time-consuming exercise, but as a

10     result of that you'll be able to make individual applications for

11     alteration to the protective measures which I'm sure you appreciate you

12     have to justify.  You know what the rules say about this.  Where they've

13     been granted in the past, then you would need to demonstrate a reason why

14     they're not necessary now if the witness does not consent to them being

15     removed.

16             On a number of occasions at these Status Conferences you've made

17     the sort of comment you've made already.  I'm not criticising you for

18     that, but we understand your general position about the situation being

19     different from what it was years ago and that in your view there is no

20     need for these measures, but any application you make will have to be

21     more specific to the individuals involved.  I'm sure you realise that.

22             I turn now to a different subject, which is the impact of a

23     recent decision made on judicial notice of adjudicated facts.

24             When the first decision on judicial notice was made, the

25     Prosecution intimated the withdrawal of certain witnesses.  There's been

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 1     no reaction as yet to the second decision.  Can you indicate,

 2     Ms. Uertz-Retzlaff, what's likely to happen?

 3             MS. UERTZ-RETZLAFF:  Your Honour, we will file a similar motion,

 4     and we either do it today or tomorrow, and we will ask for the withdrawal

 5     of ten and -- at least ten but probably more.  The discussion has not

 6     completed -- be completed yesterday, otherwise we would have done that

 7     yesterday.  But at least ten, most likely more, will also be withdrawn.

 8             JUDGE BONOMY:  Are any of them experts?

 9             MS. UERTZ-RETZLAFF:  To my knowledge, no.

10             JUDGE BONOMY:  A significant body of the expert evidence relates

11     to the identification of victims at -- of the events at Srebrenica.  You

12     don't envisage that the decisions that were made in relation to judicial

13     notice will affect the evidence you intend to present to identify the

14     victims or at least the number of victims?

15             MR. TIEGER:  Your Honour, I understand the Court's point, and all

16     we can do at this stage -- first of all, I reiterate what

17     Ms. Uertz-Retzlaff said.  All we can do at this stage is to double-check

18     to ensure that that specific issue was distinctly considered in the

19     evaluation of whether or not witnesses could be placed on the reserve

20     list, and if it -- if it turns out that, in fact, the adjudicated facts

21     did not obviate, at least temporarily, the need to have those witnesses

22     considered, then that's simply the case.  But if it turns out that for

23     some reason the evaluation was focussed on the witnesses themselves and

24     not the experts, then the concerns the Court raises may -- may turn out

25     to result in the reduction of some experts.  We'll just have to check

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 1     that, and I can't say at this moment whether -- I can't confirm at this

 2     moment that those experts were weighed against the adjudicated facts.

 3             JUDGE BONOMY:  Thank you, Mr. Tieger.

 4             Well, it follows from that, Mr. Karadzic, that the possibility of

 5     all the expert witnesses proposed actually giving evidence is a live

 6     issue, and you have had ongoing discussions with the Office of Legal

 7     Affairs and Defence here about the allocation of resources for the expert

 8     witnesses that you propose, and you're miles apart on that issue.

 9             Now, I would like to know, first of all, your view of the

10     situation as it now is.

11             THE ACCUSED: [Interpretation] May I?

12             JUDGE BONOMY:  Please.

13             THE ACCUSED: [Interpretation] Well, you see, Your Lordship,

14     26 expert witnesses of the OTP were not seen in any other cases, and this

15     is yet another reason why this case is so voluminous.  The witnesses --

16     expert witnesses of the OTP had huge resources, time and resource

17     allocation --

18             JUDGE BONOMY:  Let me interrupt you there.  These witnesses have

19     mostly, if not all, given evidence in other cases.

20             THE ACCUSED: [Interpretation] But not all in the same case as in

21     my case.

22             JUDGE BONOMY:  Well, I understand that, but they're -- yes.

23     Well, continue with what you have to say.

24             THE ACCUSED: [Interpretation] Therefore, they had huge resources

25     and opportunities to write their findings.  Once again, I wish to

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 1     emphasise the rule on equality of arms and resources, and I simply cannot

 2     allow for this issue to be neglected, nor can these experts allow

 3     themselves to be less than professional and provide insufficient

 4     information.

 5             What is important here, especially when it comes to the problem

 6     that you raised, the identification of victims, my experts are all

 7     professionals with reputation, university professors with long-standing

 8     experience, and they simply cannot allow themselves to make their

 9     findings on the basis of just some paperwork.  They need to be supplied

10     with additional material, forensic material and so on based on which the

11     expert findings were written.  To comment on these findings without that

12     could only amount to whether the findings were done in a proper way or

13     not.  But to actually ascertain whether or not they're accurate, they

14     need to do much more work.

15             So I plead with you to make sure that this is done properly, as

16     the Defence is assuring you that most of the surprises in this trial will

17     come on the issue of identification of victims and so on.  They think

18     that they have made some concessions due to the volume of this case, but

19     what is at stake here are the rules, and the rules here are wrong.

20             The Prosecution, in this case and in this institution, can do

21     what it wants, whereas my resources are limited, and it is impossible to

22     strike a balance, and it is impossible for me to reply to these findings.

23     This is the one of the most important aspects to establish the truth.  I

24     cannot go as far as to say that the Judges in this institution made

25     erroneous mistakes, political decisions and so on, because the truth was

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 1     not established.  We ask that the objective truth be established, and we

 2     will show the entire situation in Bosnia and Herzegovina on very firm

 3     grounds, and it is only after that that we can discuss and conclude

 4     whether this Court is a political institution or not, but prior to that

 5     we need to ensure all of these conditions.

 6             The number of hours is a problem.  There's nothing we can do in

 7     the limited number of hours at our disposal.

 8             JUDGE BONOMY:  You have, of course, to bear in mind that experts

 9     that you intend to instruct have also been involved in previous cases.

10             THE ACCUSED: [Interpretation] Not all of them, Your Lordship.

11     Besides, I'm not sure that they had an opportunity to see all the

12     material, because some of the material had never been disclosed.  What

13     they had were Prosecution experts' reports, and that is not enough.  All

14     they can conclude based on that is whether the reports are well written

15     or not.  They can't conclude whether they are correct or not.

16             JUDGE BONOMY:  But if you take as an example Professor Dunjic,

17     he's given evidence on a number of occasions here, but in particular he's

18     given evidence in relation to Srebrenica, and he sat through all the

19     experts in the Popovic trial.  Now, it can hardly be said he's coming to

20     this task with a blank sheet.  He comes with -- with a great deal of

21     information, and he must know already where to look for the areas in

22     which there might be a genuine dispute.

23             THE ACCUSED: [Interpretation] I don't believe that Professor

24     Dunjic was satisfied in the previous cases with what he had been supplied

25     with by the OTP.  However, this applies even more to Professor

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 1     Oliver Stojkovic who did not have any analysis of the documents referring

 2     to the material at his disposal, and he could not conclude anything.  If

 3     you only look at how much resources did the 26 OTP expert witnesses have

 4     at their disposal, you can grasp the extent of this disproportion.

 5             JUDGE BONOMY:  Well, I am surprised to hear you mention that.  My

 6     understanding was that the Prosecution experts were paid less than the

 7     Defence experts for the work that they did.  You seem to have a different

 8     understanding.

 9             THE ACCUSED: [Interpretation] What I am talking about is the

10     number of hours.  I believe that their number of hours was virtually

11     limitless, and you can count those in months rather than in hours.

12             JUDGE BONOMY:  But you have to bear in mind that they were

13     working at the grave sites, handling the remains of thousands of people,

14     doing a quite different job from an analytical exercise in the current

15     circumstances of the work that others had to do in dreadful

16     circumstances.

17             We have to bear -- you know, bring some sense of proportion to

18     this.  And I recognise that you're going to have to have a greater

19     allocation of hours for experts in this field of pathology and forensic

20     science than possibly in any other case that has been here, but we still

21     have to bring a sense of proportion to bear on the issue.  And it is

22     difficult for me to get a proper understanding of what is genuinely

23     necessary when very broad assertions are made about all that needs to be

24     done to check work, which in the first instance was done by professionals

25     of standing themselves and isn't just a work that has been cobbled

Page 352

 1     together in an unprofessional way.

 2             Now, your experts are obviously entitled to comment on the

 3     methodology of others.  They're entitled to look at examples of what they

 4     did, and perhaps by pointing to a number of examples may build a case

 5     that undermines the expert, but it doesn't on the face of it seem

 6     realistic to say that every post-mortem report ought to somehow or other

 7     be analysed in the course of this yet again by an expert for the Defence.

 8             So what I'm trying to identify or invite you to consider

 9     identifying is what's realistic rather than asserting a right which is

10     unrealistic to examine the detail of every document.

11             THE ACCUSED: [Interpretation] Your Lordship, Professor Dunjic was

12     never provided with the reports of individual post-mortems.  Professor

13     Stojkovic never received materials from the ICMP, and now I would like to

14     be less general and more specific.

15             This is the last ever opportunity for us to clarify what happened

16     in Bosnia, and particularly in Srebrenica.  I assure you that we are

17     talking about the differences that can be numbered in the thousands of

18     victims, thousands, not tens.  Creating a myth on erroneous facts about

19     Srebrenica can cost Europe as well, because this gives legitimacy to a

20     number of erroneous facts that they can turn the anger of the general

21     public against Europe, and this cannot be clarified if we believe that

22     one expert was wrong about one case.  We want to be absolutely sure who

23     was victim there and how many there were.  If we miss that opportunity

24     now, Europe will also feel that as a major problem.

25             This is not a matter of principle.  That is matter of us trying

Page 353

 1     to establish the fact, and if we do that, I don't even care what the

 2     Trial Chamber's decision will be about me.  I just want to find the truth

 3     and we can't do that based on examples and a sample.  And this is the

 4     least sacrifice that this court can do to allow my experts to see every

 5     single piece of material, all the DNA analysis, individual post-mortems,

 6     and then we will end up with the true list, the correct list of victims

 7     which will differ by thousands in respect of what is believed at the

 8     moment.

 9             JUDGE BONOMY:  Let's look at from the other side.  We're talking

10     about events 14 years ago.  Presumably you've been gathering material

11     provided by experts who have looked at this from the opposite point of

12     view, to try to establish that what is presented to the public is a myth.

13     Now, have you not already got that material together, your experts

14     identified who can present the argument that the genocide, the alleged

15     genocide did not occur and that it is all misrepresentation?

16             THE ACCUSED: [Interpretation] Until I arrived here, I did not

17     collect anything, because I had struck a deal with the international

18     community that I would not be indicted and brought to trial.  And on the

19     other hand, my experts cannot rely on newspaper information.  They need

20     to have the same material that the OTP experts were privy to in order to

21     be able to see whether the facts were established correctly and whether

22     the conclusions were established correctly.  That's why my experts have

23     to focus on the same body of material that their counterparts had.  This

24     is the only way.  They must be able to see everything that the OTP

25     experts saw and then they will be able to confront them with their expert

Page 354

 1     views.  Anything else would be incorrect vis-a-vis history,

 2     reconciliation, the peoples involved, victims, and the international

 3     justice.

 4             All sorts of things are happening there.  The graves are being

 5     dug out.  Bodies are being moved to Srebrenica in order to prove a point.

 6     This is our last opportunity to establish the truth, and in that,

 7     Srebrenica is a very significant point in case.

 8             JUDGE BONOMY:  Let me clarify with the Prosecution just the state

 9     of play so far as provision of material is concerned.

10             Who is dealing with this issue?  Ms. Uertz-Retzlaff, Dr. Karadzic

11     is indicating that there maybe material sought which has not been

12     provided.  Can you help me on what exchanges have taken place about this?

13             MS. UERTZ-RETZLAFF:  Your Honour, there were quite some exchanges

14     about the materials that are actually not in custody of the Prosecution

15     which are actually with the experts or, rather, with the organisation

16     they work with, and we have actually proposed to have a meeting with the

17     associates to clarify a few things in relation to that.  The Prosecution

18     cannot -- as this institution, this external organisation, is

19     independent, we cannot order them to do certain things.  We can only

20     facilitate contacts.  It's about the provision of 300 -- as far as I

21     understand it, 300 probes.  It's about 300 probes that the Defence

22     experts want to do, and there seems to be -- this seems to be quite --

23             JUDGE BONOMY:  What do you mean --

24             MS. UERTZ-RETZLAFF:  Probing DNA.  They actually want to go to

25     the real DNA evidence and want to make probes to establish whether the

Page 355

 1     methodology of the Prosecution experts is correct, and there seems to be

 2     a real -- first a matter of confidentiality of this information, which is

 3     the position of that external institution, and the other issue is that it

 4     would be very time-consuming, but that's something that we, as the

 5     Prosecution, have no real input in.  It's the between the Defence and

 6     these external experts.  But we try to facilitate it, and we have

 7     proposed a meeting.

 8             JUDGE BONOMY:  But there must be some substance in the suggestion

 9     that the Defence should be able to run some tests similar to those done

10     by the organisation you refer to with a view to checking the accuracy of

11     what was actually done by them.

12             MS. UERTZ-RETZLAFF:  That's correct, Your Honour.  We actually

13     have the same view, but it's a question of how many and -- but that's not

14     for us to judge.  It's a rather a matter of the expert.  How many probes

15     would you make to -- to -- would you have to do to establish that

16     methodology is correct?  So whether it should be 300, I don't know.  We

17     can't say that.  It sounds to me quite a lot.

18             JUDGE BONOMY:  Yes, but you also sounded earlier as though you

19     were lying down to the idea that there's an issue of confidentiality here

20     and that you weren't perhaps asserting as a Prosecutor that in fairness

21     there is a point at which confidentiality has to be interfered with.  I

22     mean, we're not talking about confidentiality in the sense of, I think,

23     affecting people -- people's current daily lives.  We're talking about a

24     different type of confidentiality.

25             MS. UERTZ-RETZLAFF:  Your Honour, it's not a matter that -- that

Page 356

 1     Prosecution raises.  It's actually a matter that the organisation

 2     raises --

 3             JUDGE BONOMY:  I understand that, but --

 4             MS. UERTZ-RETZLAFF:  -- and we cannot actually -- we have -- we

 5     cannot order them.

 6             JUDGE BONOMY:  Why can't you influence them, persuade them?  I --

 7     it sounded to me as though you were accepting that that's their position

 8     and we just have to accept it; whereas you're the person in control of

 9     the -- the presentation of a case, and you know that if the Defence do

10     not have a fair chance of challenging that case that the evidence might

11     be excluded, and you've got quite a strong hand in explaining to one of

12     your providers or -- evidence providers or indeed a witness that certain

13     things have to be conceded in the interests of a fair trial.

14             MS. UERTZ-RETZLAFF:  Your Honour, we actually did that.  We had

15     conversations, and we actually did that, and it's not that this

16     organisation doesn't want to do it but they want -- they need to go back

17     to the victims' families from where the DNA was taken, because it was

18     taken under the premise that it would not be provided elsewhere.  So they

19     have to go back.  That's at least their understanding of their duties.

20     They have to go back to these providers of the DNA and confirm with them

21     that it can be provided to Dr. Karadzic, and that's -- that's the issue,

22     and if it is 300 probes, then it is quite a lot of work for them.

23             JUDGE BONOMY:  I find it difficult to understand that a person

24     might consent to have material given to a Prosecutor and not realise that

25     the inevitable result of that must be that the Defence would have a

Page 357

 1     pretty strong claim at least for access to it.  It seems a strange

 2     situation if they've already consented to you having it.

 3             MS. UERTZ-RETZLAFF:  But I can only comment to you what the

 4     discussion was and that they need -- need to go back to the people

 5     providing the DNA.

 6             JUDGE BONOMY:  I hope you've checked the terms of the consent

 7     that was originally given and are satisfied that this is absolutely

 8     necessary, because it's clearly yet another thing that may well cause a

 9     delay here.  So this requires urgent attention.

10                           [Trial Chamber and Legal Officer confer]

11             JUDGE BONOMY:  Ms. Uertz-Retzlaff, is that the only area of

12     discussion about the provision of additional material?

13             MS. UERTZ-RETZLAFF:  Yes, Your Honour.  That's -- the DNA is the

14     centre of the entire discussion.

15             JUDGE BONOMY:  Just remind me of the main point behind the use of

16     DNA evidence in this case where we don't, I think, have a schedule, for

17     example, of identified victims and we're working largely on numbers

18     rather than individual identities.

19             MS. UERTZ-RETZLAFF:  That's --

20             JUDGE BONOMY:  Does it have a big impact on the case?

21             MS. UERTZ-RETZLAFF:  To our knowledge actually not, Your Honour,

22     because -- that's why we also were very surprised why it was focusing on

23     the DNA, because even if there were mistakes among those identifications,

24     to -- to us it was actually no doubt that the people in the mass graves

25     were actually the men and boys from Srebrenica.  Therefore, we were

Page 358

 1     actually rather surprised that the DNA suddenly became such an important

 2     point for Mr. Karadzic.  That's why we actually thought the witnesses --

 3     these expert witnesses were 92 bis witnesses; they wouldn't even have to

 4     come, because -- I don't know.  I see now to see that the position of

 5     Mr. Karadzic is that the people in the mass graves are actually not the

 6     boys and men from Srebrenica.  I seem to understand that this is what the

 7     Defence line would be, but that's -- that's new to me.  I didn't actually

 8     inspect that.

 9             JUDGE BONOMY:  When do you anticipate the meeting that you

10     mentioned?

11             MS. UERTZ-RETZLAFF:  We have proposed it already last week, and

12     there was something holding it up.  We have, therefore, not have made a

13     concrete appointment.

14             JUDGE BONOMY:  Are you saying the difficulty lies with the

15     provider or with the associates of Mr. Karadzic?

16             MS. UERTZ-RETZLAFF:  We -- yeah.  I would say the latter.  I

17     mean, we have conversations -- rather, e-mail communication with the

18     associates about this meeting, but it never materialised to a particular

19     date.

20             JUDGE BONOMY:  Thank you.

21             MS. UERTZ-RETZLAFF:  It would actually already be helpful if the

22     associate would meet with us.  There is not necessarily to have to be the

23     organisation there as well.

24             JUDGE BONOMY:  Mr. Karadzic, what do you have to say in response

25     to that?

Page 359

 1             THE ACCUSED: [Interpretation] With all due respect for

 2     Mrs. Retzlaff, I can't agree that the Defence is a third party.  The

 3     Defence is the second inevitable party to these proceedings.

 4             JUDGE BONOMY:  The third party she's referring to is the ICMP and

 5     not the Defence.  She's saying that the -- they may need not to be

 6     present when they first have a meeting, that that meeting should be with

 7     one of your associates.

 8             THE ACCUSED: [Interpretation] No, no.  I believe that this

 9     referred to the fact that they were DNA material providers, and they were

10     not prepared to disclose that to a third party, and the third party in

11     this case was Defence.

12             I can't understand another thing.  The OTP gave those

13     institutions the task to carry out a job, and the owner of the material

14     is the OTP, not the institutions.  I can't accept when I hear that the

15     OTP cannot have the material given back to them, and I really can't

16     understand how come the OTP offers only 300 samples to us.  We want the

17     entire material, and we will take a random sample and choose 300, and if

18     there are major discrepancies among the 300, then we will broaden the

19     sample and continue the procedure.

20             Furthermore, I have an objection to the terms as used for boys

21     and men.  I believe that this has to be clarified in writing.  We have to

22     define what the term "boys" implies.  We do not believe that a conclusion

23     can be made on a number.  I believe that in criminal matters a body has

24     to be present.  Here in several cases against the Albanians it was

25     concluded that without a body murder charges cannot be proven.

Page 360

 1             We have to establish the truth.  When somebody died, whether they

 2     died in 1992, 1993, or 1995; whether they were killed in combat or

 3     whether they were killed as a result of executions.  I believe that for

 4     thousands of them we can assume that people's hands were tied, and based

 5     on that we can assume that those people were executed, but this is a

 6     generalisation which cannot be used to establish the guilt of an entire

 7     people, not only one person.  I'm talking about this approach.  It is

 8     hard to believe that they cannot disclose materials to us, that they

 9     cannot obtain the materials from the company from which they commissioned

10     work.

11             We are trying not to intervene through the Chamber, but in any

12     case, we can certainly not give up on our desire to establish the truth.

13             JUDGE BONOMY:  First thing, though, seems to be a meeting which

14     attempts have been made to arrange and for some reason has not taken

15     place.  Now, can you help me on that?

16             THE ACCUSED: [Interpretation] There were some meetings.  I know

17     that there were some meetings.  In the last month we received over

18     105.000 pages.  We're grateful for that and we're working on that, but

19     that is not the entire material that we need.  Very significant portions

20     are missing.

21             Unfortunately, if there are claims about primary, secondary, and

22     tertiary graves, then one DNA can come up in a number of cases.  So the

23     figures mean nothing.  We need to know the clear identity.  My associates

24     will be available for the meeting, but the purpose of the meeting should

25     not be to avoid disclosing the material, and in that sense, I cannot

Page 361

 1     authorise my associates to accept such a meeting the purpose of which is

 2     to ensure that we will not receive the material.  The condition for the

 3     meeting must be disclosure, full disclosure, and we shall abide by all

 4     the rules concerning the protection of data and so on.

 5             JUDGE BONOMY:  It's a bit simpler than that, Mr. Karadzic.  If

 6     they don't cooperate in a reasonable way on your instructions with a view

 7     to securing their objective, then the Court will have no sympathy for the

 8     position you take.  A meeting is being suggested.  There are no

 9     preconditions, as I understand it, although there may be a point of view

10     to be presented by the Prosecution and by the ICMP, but there's little

11     going to be achieved by taking firm positions before a meeting and then

12     allowing them to interfere with the meeting taking place at all.

13             Now, I'd like to understand, if you are willing to assist me,

14     where this line takes you in your defence.  Is it purely a question of

15     numbers, that the argument based on DNA will be that the numbers have

16     been grossly exaggerated?  Or is it some other number that were --

17     contained in the reports, allegations that -- or findings that people

18     were victims from Srebrenica that are inaccurate?

19             THE ACCUSED: [Interpretation] Everything in relation to

20     Srebrenica that has been presented so far is erroneous.  There are people

21     coming up now, living people whose names are on the tombstones.  In the

22     first elections, there were people who voted who had been listed as

23     missing and killed.  There were people who fell victims in combat

24     throughout the entire period, and people who died in 1992 on 1993 were

25     later on portrayed as victims of massacre in Srebrenica.  So everything

Page 362

 1     is contentious and everything needs to be established fact by fact.

 2             There were huge combats in forests after the fall or liberation

 3     of Srebrenica.  These victims cannot be treated as victims of the

 4     massacre.  The civilian authorities in Srebrenica accepted the surrender,

 5     and the military elements continued fierce fighting in order to break

 6     through the Serbian lines and Serbian territories.  So we do not have a

 7     clear picture, and we may not allow for this to remain this way, because

 8     so far we have not established the truth.

 9             In addition to that, there are many people living abroad who were

10     listed as missing.  So all of that needs to be established.

11             As for the sample that my experts will make from the entire DNA

12     material, the sample of 300 random sample materials, that will clearly

13     show what the situation is.  This is of huge importance both for Serbian

14     and for the Muslim nation and for Europe and for the international law.

15     My associates are here -- or, rather they're here three days a month.

16     Only one of my associates is permanently in The Hague and the rest of

17     them live in other areas, and they're authorised to come here only three

18     days a month.

19             JUDGE BONOMY:  But please try to assist me on the point I'm

20     trying to clarify.  How does dip sampling the DNA tests help you to

21     establish that people died in fighting or combat or that their -- people

22     are living abroad who have been listed -- how does dip sampling DNA deal

23     with any of that?

24             THE ACCUSED: [Interpretation] You see, Your Lordship, we are

25     convinced that there is a multifold exaggeration here.  We wish to

Page 363

 1     establish exactly who perished and whose DNA was provided in order to be

 2     able to say that, yes, this number of victims is beyond contention.

 3             My experts know what they're doing.  They saw summary reports

 4     that mean nothing.  All they can conclude is whether their grammar was

 5     correct when writing those findings, but the truth cannot be established

 6     that way.  Our associates replied to the Prosecution, and they said that

 7     they needed that material so that our expert Stojkovic could do his work.

 8     Following that, the meetings would be more useful.

 9             Such a number of victims is bandied about, and the material

10     provided is of a summary nature, and we believe that we cannot establish

11     the truth unless we're provided the entire material.

12             I have mentioned primary, secondary, and tertiary graves.  One

13     DNA could have been portrayed three times representing three persons and

14     we need to verify everything.  We need to let that run through the

15     computer, through software, in order to establish what this is all about,

16     and you will see what the truth about Srebrenica will look like following

17     this trial.

18             JUDGE BONOMY:  I must say I don't really understand very much of

19     this.  You've just made an allegation that one DNA could have been

20     portrayed three times representing three people.  What do you mean by

21     that?  Are you saying that people are falsifying DNA results, the

22     professionals that did it in the first place?  Or is this just a hopeful

23     assertion that you're making?  I mean, what basis have you for this sort

24     indication, and what exactly does it mean?

25             THE ACCUSED: [Interpretation] Your Lordship, this is just a

Page 364

 1     possibility.  It's a possibility that nobody can exclude at this point.

 2     I'm not going as far as to say that somebody is doing this on purpose,

 3     knowingly.  We wish to examine this methodology and we wish to follow the

 4     same method, the same path that was used by the experts of the

 5     Prosecution, and only then we'll be able to say this is why it's wrong or

 6     this is why it's accurate.  At this point this is a possibility and

 7     nobody can exclude it now.

 8             JUDGE BONOMY:  What can be said is that there's a willingness on

 9     the part of the Prosecution to facilitate your request, and that can only

10     be fulfilled if your associate is instructed forthwith to arrange first

11     of all to meet with the Prosecution and, if necessary, to meet with them

12     and the ICMP.  So I expect urgent attention to be given to that

13     suggestion.

14             MS. UERTZ-RETZLAFF:  Your Honour, Mr. Tieger just alerted me to

15     the last e-mail that we actually got from Mr. Sladojevic where he

16     addresses the reason why he couldn't have the meeting, and what he

17     actually says in this e-mail from the 21st of July, he says, "We will get

18     back to you as soon as OLAD has made a decision in relation to expert

19     hours to be authorised."  This is his reason, claim, in the e-mail why he

20     hasn't met yet.  So just to say that.

21             And one other point I would like to also clarify.  The ICMP did

22     also not provide the DNA to us.  They have it.  So it's not that they

23     give it to us and not to others.  That was a misunderstanding.

24             JUDGE BONOMY:  Mr. Karadzic, I understand the point that

25     Sladojevic may have been making in that e-mail, but it's a misconception

Page 365

 1     that the meeting which has been proposed should not take place pending

 2     the determination of the allocation of hours.  They are two separate

 3     issues.

 4             I appreciate the work might not be capable of being done in the

 5     way that you particularly want it done unless the appropriate allocation

 6     is made, but that's no reason for holding up the negotiations to get the

 7     material.  So please instruct him that that meeting should take place

 8     forthwith.  Meanwhile, you know that I am going to take certain steps in

 9     relation to the allocation of hours, and these will be to express for

10     OLAD my understanding of the situation that's emerged from this

11     discussion this morning, and in light of that, I am certain that there

12     will be some change to the allocation, but it's for them to decide what

13     the allocation is in the light of all the information that's provided to

14     them.

15             In principle, it seems to me that an exercise that dip samples

16     the DNA work done on behalf of the Prosecution or of which the

17     Prosecution are going to make use is a reasonable investigation for the

18     Defence to carry out, and the assessment must mainly concentrate on the

19     extent of that exercise.

20                           [Trial Chamber and Legal Officer confer]

21             THE ACCUSED: [Interpretation] If I may, Your Lordship.  I wish to

22     clarify something concerning the meetings.  Namely, this is not an issue

23     of principle; this is a practical issue.  Mr. Sladojevic has no business

24     in that meeting until he receives a report from Stojkovic as to what is

25     missing.  And in order for Stojkovic to send a report on what is missing

Page 366

 1     he must receive the hours allocated to him for that purpose.  So it's a

 2     matter of substance, not a matter of us doing this to spite somebody.

 3             It is in everybody's interest to do it as soon as possible, but

 4     as soon as we have everything that we need for Stojkovic to say, "This is

 5     what I'm missing," then Mr. Sladojevic can say in the meeting, "This is

 6     what we're missing."  There is no purpose in meeting unless some result

 7     is going to be achieved.

 8             JUDGE BONOMY:  Has Stojkovic not already had an allocation of

 9     hours made to him?

10             THE ACCUSED: [Interpretation] I think that it has been just

11     resolved, but he needs time to review that and to inform Sladojevic about

12     what is missing.

13             JUDGE BONOMY:  You see, your position now is different from what

14     I understood it a little time ago.  Earlier you said -- or at least

15     Ms. Uertz-Retzlaff said, and you confirmed, that you were seeking

16     300 examples.  You would prefer to have the whole of the material, and

17     you would make the selection of the 300.  But on either view, it was a

18     question of 300 samples.

19             Now, are you telling me that that's not what you want, that it's

20     not yet clear what you want?  Because that's what you seem now to be

21     saying.

22             THE ACCUSED: [Interpretation] No, no.  Mr. Stojkovic has his

23     first task to review everything that has been disclosed and to say, "This

24     is what is missing."  And it is then that Mr. Sladojevic will be able to

25     say, "This is what we're still lacking, will you please disclose that to

Page 367

 1     us."  Once Mr. Stojkovic receives the entire material, then we will ask

 2     for the entire DNA material to be supplied, not reports but the DNA

 3     material, the results.  And out of all the available DNA, my team -- or,

 4     rather, Mr. Stojkovic and Mr. Dunjic, will make a random sample of 300,

 5     which is less than 10 per cent of the -- well, I don't know.  Two and a

 6     half thousand have been identified, and we hear numbers such as 8.000,

 7     10.000 bandied about.  Next year I'm sure it will be 15.000.

 8             So they will make a 10 per cent random sample, and my team needs

 9     to select this sample, not the team of the Prosecution.  And if in that

10     sample there is no distortion, no deviation, then they will make one

11     conclusion; and if there is significant statistical deviation, then they

12     will ask for the entire material to be supplied in order to establish the

13     truth.

14             JUDGE BONOMY:  That's how I understood your position to be and it

15     doesn't seem to me that Mr. Stojkovic needs to do anything for you to

16     have a meeting with the Prosecution, so I reiterate what I said earlier,

17     that I expect that meeting to make place forthwith.

18             THE ACCUSED: [Interpretation] I suppose that we will need one

19     week longer than the dead-line in August in order to provide the reply,

20     because not everything has been disclosed to us.  The disclosure is not

21     complete.  It's quite chaotic.  And I do not want to blame the

22     Prosecution for that, but most likely those who work for them are faulty.

23     It is very difficult to classify that material.  The material is quite

24     chaotic.  Hundred and five thousand pages.  We would need I don't know

25     how many days to go over that material.

Page 368

 1             JUDGE BONOMY:  Does that mean you intend to submit another

 2     response to the motion for admission of the expert witness evidence under

 3     Rule 92 bis?

 4             THE ACCUSED: [Interpretation] Yes, after we review everything,

 5     but our dead-line is sometime in August, I think, and I think we will be

 6     one week short in order to provide a complete answer.  Our dead-line is

 7     in August to reply concerning that issue.

 8                           [Trial Chamber and Legal Officer confer]

 9             JUDGE BONOMY:  I'm regarding that, Mr. Tieger, as an application

10     to extend the dead-line for the response to the Prosecution motion for

11     admission of the evidence of eight experts by seven days, to the

12     20th of August.  It presently is the 13th of August.  Do you have

13     anything to say on that?

14             MR. TIEGER:  In principle, Your Honour, I wouldn't ordinarily

15     object to a continuance.  I would like to take a moment, however, to

16     consider the basis for that.  I'm not aware that -- at least offhand,

17     that complaints about the provision of materials were previously made and

18     formed a basis for an application for continuance, but --

19             JUDGE BONOMY:  But you do have the odd expert who is responsible

20     for literally thousands of pages of report.  Haglund, for example, comes

21     in a five-volume series covering different sites, so there may be

22     substance in the suggestion that time is necessary to review this

23     material.

24             MR. TIEGER:  And I'm not rejecting it reflectively.  My concerns

25     arise from simply the fact that we have been advised on a couple of

Page 369

 1     occasions, more than a couple of occasions, that materials weren't

 2     provided and it turns out that they were.  But in any event, I take the

 3     Court's point.  There's no -- there's no -- we don't object.

 4             JUDGE BONOMY:  I don't think that's really the point.  It was the

 5     chaotic provision this time, but that's --

 6             MR. TIEGER:  In any event, there's no objection, Your Honour.

 7             JUDGE BONOMY:  Mr. Karadzic, I will extend the time for response

 8     in the case of the motion for admission of the evidence of eight experts

 9     from the 13th to the 20th of August as you request.

10             THE ACCUSED: [Interpretation] Thank you, Your Lordship.

11             JUDGE BONOMY:  Apart from that motion, are there another 92 bis

12     motions to which you will make further responses, bearing in mind that

13     you submitted an omnibus response which indicated you were unlikely to

14     say any more?

15             THE ACCUSED: [Interpretation] Your Lordship, the omnibus motion,

16     I hope, can be used as grounds to postpone the decision on admissibility

17     until we are complete -- until we have completed our work.  Otherwise, we

18     would just be burdening and introducing too much material into the case.

19     This is why we resorted to this omnibus response.  For us to say that

20     something is acceptable we need to be sure whether there is something

21     that has remained unresolved, and our investigation and our discussion

22     with the witnesses will clarify that completely.

23             If the Prosecution objects to that, they can shorten the

24     proceedings and take these people from the 92 bis list and call them to

25     testify here live.  If there is no time, then that's the avenue we should

Page 370

 1     take rather than wait for us to see whether we can accept something

 2     without cross-examination; or we can respond individually for each

 3     particular case, but in that case we will have 213 or 217 such responses.

 4                           [Trial Chamber and Legal Officer confer]

 5             JUDGE BONOMY:  It's been drawn to my attention, Mr. Tieger and

 6     Mr. Karadzic, that the date I was working on for the response to the

 7     motion about eight experts was the date in the original order giving

 8     dead-lines, that there is a revised dead-line of the 25th of August

 9     already.  So an additional week takes you to the 1st of September and not

10     to the 20th of August.  So that extension gives you until the

11     1st of September.

12             As presently advised, the Trial Chamber is unlikely to make

13     decisions about the admission of evidence under Rule 92 bis during the

14     pre-trial phase.  I anticipate that the 92 bis motions will be dealt with

15     when the Trial Chamber to conduct the case is assigned.  The other

16     motions, however, that fall under 92 quater may be dealt with

17     differently.

18             Now, it follows from that, Mr. Karadzic, that if there were

19     circumstances in which you had additional material to respond in relation

20     to any of the 92 bis motions that you would be able to do so until a

21     decision had been made.  At least you would be able to ask the Chamber to

22     accept further information up until the time the motion was determined.

23             THE ACCUSED: [Interpretation] Thank you, Lordship.

24             JUDGE BONOMY:  Prosecution filed on the 17th of July a request

25     for reconsideration of the refusal by the Chamber to allow them to reply

Page 371

 1     to your response in the 92 quater motion about KDZ-198.  Do you have

 2     anything to say on the subject of whether the Trial Chamber should

 3     reconsider that decision and allow the Prosecution to reply to the points

 4     you made, which were a number of points about the reliability of the

 5     evidence.

 6             THE ACCUSED: [Interpretation] Your Lordship, if the Prosecution

 7     believes this to be necessary, to have yet another paper, then we will

 8     not object to that.  We simply would not be opposed to that.

 9             JUDGE BONOMY:  We should probably have assumed that that would be

10     your position.  It's consistent with what position you've taken in other

11     similar situations.

12             A decision will be issued allowing a reply.  It will be filed

13     today.  So -- and I assume the reply is ready and can come in tomorrow.

14             MS. UERTZ-RETZLAFF:  Yes.  It can actually come in today.

15             JUDGE BONOMY:  Well, we'll give you until tomorrow just in case.

16             Mr. Karadzic, the Prosecution have also submitted a motion asking

17     for an order that you return certain ex parte material.  I think I need

18     to go into private session to deal with that in case we get into the

19     detail of it, in which case we would need to be doing it in private.  So

20     I'm going into private session now.  If it turns out that that's

21     unnecessary, we'll come straight back into open session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 372











11 Pages 372-373 redacted. Private session.















Page 374

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             THE REGISTRAR:  Your Honour, we're back in open session.

 7             JUDGE BONOMY:  Now, tell me what you mean by the batch number

 8     that you need.

 9             THE ACCUSED: [Interpretation] An ERN number doesn't mean much

10     because I don't have a search engine.  I don't have that software.

11     However, on CDs they are marked until batch 96.  The last I received was

12     96 with -- containing some ICMP material.  So if I were provided with a

13     CD number rather than an ERN number, it would be easier for me to find

14     it.  Searching a hundred CDs is much easier than searching close to a

15     million pages, as you will appreciate.

16             JUDGE BONOMY:  Ms. Uertz-Retzlaff, can you oblige on the first

17     one?

18             MS. UERTZ-RETZLAFF:  Yes, it's the batch number 61, and you got

19     this on the 21st of April this year.

20             JUDGE BONOMY:  And then in relation to the second and third

21     items?

22             MS. UERTZ-RETZLAFF:  Your Honour, that's actually specified in

23     the motion.  It's an item -- a filing that was provided by the registry

24     in error.  So two ex parte items were provided in error.

25             JUDGE BONOMY:  Well, the first one in paragraph 5 refers again to

Page 375

 1     a CD, but that won't be a CD with a number like the number you've just

 2     given us.

 3             MS. UERTZ-RETZLAFF:  No, Your Honour, because that's actually a

 4     distribution from the registrar related -- but it should also be easily

 5     to find because it's related to a particular motion.

 6             JUDGE BONOMY:  Well, you'll see there, Mr. Karadzic -- well, you

 7     may not have this document with you, but we're talking about appendices

 8     which were ex parte appendices accompanying the Prosecution's seventh

 9     92 bis motion, and that relates to delayed disclosure of witness

10     identity, and that was -- now, do you keep -- do you keep motions in a

11     particular place so that you can go to it and find this one?

12             THE ACCUSED: [Interpretation] I have a lot of papers.  I gave

13     some to my associates.  I will look for them.  My associates will never

14     disclose anything confidential or ex parte.  The matter with the

15     electronic batch 61, you consider it done.  If I knew that number, I

16     would have returned the material on the first day.  I will go and look

17     through my papers, but you can't even imagine how much paper I have.

18     Although I receive electronic material I still have a lot of papers.

19             JUDGE BONOMY:  Your associates have returned the material that

20     they got.  It's only your copy that's in issue here.  So please look for

21     that.  That was the seventh 92 bis motion.

22             Ms. Uertz-Retzlaff, do you have a date when that was filed?  Oh,

23     29th of May, I think.  Yes.  29th of May it was filed.

24             Now, I really don't want to get into exchanging paperwork on a

25     subject like this.  I note your assurance about the CD.  I note what

Page 376

 1     you've said about the other two items.  I'm going to order just now that

 2     in the event that they are not all returned to the Prosecution by Monday,

 3     that they should notify the Chamber, and the Chamber will deal with the

 4     motion; but hopefully, the Prosecution will by Monday able to intimate

 5     that these have been returned and that the motion can be withdrawn.

 6             We've reached the stage, I think, where we do need to have a

 7     break for the purposes of the management of the court.  The only thing

 8     remaining on this agenda is a discussion about Rule 90 -- sorry,

 9     Rule 73 bis.  Now, an order was issued yesterday with an annex or a

10     schedule attached to it.  I just want to look at certain examples from

11     that and have a brief discussion about how they might be dealt with to

12     give some guidance on what's expected by the Chamber in response to this.

13     So we will adjourn now and resume at 12.00.

14                           --- Recess taken at 11.35 a.m.

15                           --- On resuming at 12.02 p.m.

16             JUDGE BONOMY:  I turn now to an order that was issued yesterday

17     which is designed to focus attention on the Pre-Trial Conference and any

18     other discussions leading up to the Pre-Trial Conference, and it reflects

19     concern that the volume of this case may be such that steps may be

20     required to limit the Prosecution case.

21             Now, there are a number of methods or means available to the

22     Trial Chamber to control the overall length of the case, but of course it

23     may turn out that that's not necessary depending on the way in which it

24     is ultimately presented; but the Trial Chamber needs to know before the

25     trial starts what's likely to emerge and how long and complex it is

Page 377

 1     likely to be.

 2             There's already some basic information available which is

 3     reflected in the order.  We know that the Prosecution are talking about a

 4     case which would involve examination-in-chief of Prosecution witnesses of

 5     approximately 490 hours.  We know that they have in mind, I think,

 6     something like 560 witnesses, and we know that the case consists of a

 7     number of episodes, and within at least one of these, there are clearly

 8     distinct areas involving individual municipalities and events within

 9     these municipalities.

10             So this order focuses attention on the various things that could

11     be done to ensure that the trial is not unduly lengthy and unduly

12     complex.

13             Now, the Trial Chamber has to rely to a significant extent on the

14     information that the parties can give to enable it to make an appropriate

15     decision, and there's no point in parties simply coming along with

16     entrenched views and not looking at options, because Rule 73 bis provides

17     a number of options, and what the Trial Chamber wishes the parties, but

18     most particularly the Prosecution in this instance, to do is focus

19     attention on all of these to the extent that they can see ways in which

20     they might be of assistance in ensuring that the trial is not only fair

21     but also expeditious.

22             Now, one of the things that may be done to reduce the scope of

23     the trial is either for the number of counts featuring in the trial to be

24     reduced or the number of crime sites featuring in the trial to be

25     reduced, and the order has attached to it various columns in a schedule

Page 378

 1     identifying the crimes that are charged in the indictment.  Now, when I

 2     say that this extends to 88 pages, it can readily be understood what

 3     potential there is for the trial extending unduly in time or emerging as

 4     unduly complex, and within that schedule alone some indication is given

 5     of areas where there may be helpful clarification provided by the

 6     Prosecution.

 7             I want to look at a couple of these.  I'll just mention them at

 8     the moment, because obviously the parties have to take time to digest

 9     this and then to compose any response that they wish to make.

10             In the indictment there are a number of schedules, and one of

11     these is Schedule C, and Schedule C is simply a list of places which are

12     described as detention facilities.  Now, within the indictment there are

13     allegations of killings, at least of conduct, rather, in these detention

14     facilities, and if I can focus on one paragraph of the indictment.  Take

15     as an example -- if you have the indictment there, Mr. Tieger, it's

16     paragraph 60 and subparagraph (b), which refers to:

17             "Torture, beatings, and physical and psychological abuse during

18     and after takeovers in the Municipalities and in detention facilities in

19     the Municipalities, including those detention facilities listed in

20     Schedule C, as cruel or inhumane treatment."

21             Now, we already have a situation in relation to that paragraph

22     where the schedule is confined to identifying the detention facilities.

23     There's no reference to the personnel who may have been the subject of

24     the torture, beatings, and physical and psychological abuse, and on top

25     of that we then have the expression "including those detention facilities

Page 379

 1     listed in Schedule C."

 2             Now, I can understand that the actual identification of

 3     individuals may be achieved through the witness statements.  I don't

 4     think it's mentioned in the pre-trial brief, but no doubt the accused has

 5     been given the statements of the witnesses who will speak to this and

 6     therefore the case is disclosed in that way, but you have and it's a

 7     frequent feature of the indictment, the words "including those detention

 8     facilities."

 9             So, in the chart or the schedule attached to the order, the

10     assumption has been made by the Trial Chamber that that particular

11     paragraph is confined to those detention facilities that are mentioned,

12     and that at least as a starting point we might not expect evidence

13     relating to other detention facilities which are not mentioned.

14             Is that a fair assumption, or is that one you need to think about

15     and respond to in your written response?

16             MR. TIEGER:  Your Honour, first of all, I'm not going to reject

17     the opportunity to provide a more reflective response as the Court just

18     suggested, but I would simply note that I think paragraph 60(b) -- I

19     agree that the detention facilities -- well, I think by the very terms of

20     60(b) it does indicate that facilities beyond Schedule C were implicated

21     or there would be no particular reason to frame it in that way.

22     Nevertheless, as invited by the Court, I think digesting both the

23     concerns the Court has just expressed, and I gather will continue to

24     identify, is probably more prudent than offering an immediate reaction.

25             JUDGE BONOMY:  You will appreciate there are 27 municipalities

Page 380

 1     mentioned, I think, in that schedule, and some of them that are

 2     multi-detention facilities.  Maybe they're not all mentioned.  Let me

 3     check.  Yes, I think they are all mentioned in that particular schedule,

 4     and there are multi-facilities in many of them.

 5             Now, there's surely enough in there as a starting point for your

 6     case, and you'll appreciate my concern if "including" is going to be

 7     relied on as indicating more.  And the reason I raise is it is not

 8     because it just appears there but it appears, for example, in relation to

 9     Schedule D which is to do with cultural property and -- or cultural

10     monuments and sacred sites, and you have general averments in the

11     indictment about looting of private and public property and damage to

12     private and public property, and when you refer to the public property,

13     you again have a reference to cultural monuments and sacred sites,

14     including, and then we have the ones which appear in Schedule D.

15             Now, it's again a very extensive list, and the assumption has

16     been made, and no doubt as you've indicated you'll respond in due course,

17     but the assumption is made that the case is to be confined to the ones

18     which have actually been identified.

19             MR. TIEGER:  Yes.  And I think the Court is also aware -- again,

20     thank you again for that, Your Honour.  We will respond in due course.

21     I'll simply mention at this point the fact that -- I mean one of the

22     points I -- well, let me just say simply with respect to that the

23     widespread and systematic nature of what occurred during this period of

24     time is a factor for a number of reasons, not simply because of the term

25     of art but because it's a reflection of a pattern that reveals a great

Page 381

 1     deal about knowledge, command and control, notice, and so on, and so it

 2     appears in the indictment and appears not only in this case but has

 3     appeared in previous cases for a variety of reasons not necessarily

 4     related to holding the accused specifically to account for each and every

 5     crime he may be criminally responsible but for other evidential reasons

 6     as well.

 7             JUDGE BONOMY:  But it's also, I think, widespread or systematic.

 8             MR. TIEGER:  Thank you.

 9             JUDGE BONOMY:  And of course, that distinction may also be

10     important to you, because if you focus too much on the widespread then

11     that's when you end up, I think, with something that could be out of

12     control.

13             You know, as we get nearer to the trial in this case it becomes

14     clearer and clearer just how voluminous the material that's ultimately

15     been accumulated is, and no doubt that this trial, if it had taken place

16     12 or 13 years ago would not have included so much material, but we now

17     have to accept that we've got to a point where so much more is known and

18     is available and has to be addressed.

19             MR. TIEGER:  I agree.  And I also agree that there's a balance to

20     be struck.  I would -- it seem -- since the Court raises the point, let

21     me say -- and I'm sure the Court appreciates this too and didn't mean to

22     suggest otherwise, the aggregation of materials over the course of that

23     period of time I think can only be considered as a good thing and a way

24     of better informing the Court of what happened so that a better decision

25     can ultimately be made.  And as the Court expressed at the last Status

Page 382

 1     Conference, it's up to the parties to identify creative ways to ensure

 2     that the maximum amount of information is made available to the Court.

 3             Now, one of the ways, I think, the Court is focusing on at the

 4     moment is let's separate the wheat from the chaff and let's focus on the

 5     most important aspects and I understand that and we'll not enter into

 6     this exercise without any prejudges.  However, another way, and the

 7     Prosecution, I think, has been vigorous about attempting to ensure the

 8     maximum application of this mechanism, is through such means as 92 bis.

 9     I mean, that is, in fact, one of the mechanisms devised by this

10     institution to ensure just that, that the maximum amount of information

11     gets to the Court so that the best possible decision can be made, and

12     it's made in a way that focuses precisely on nature of these cases, that

13     is, cases involving mass crimes, and the recognition that the principle

14     of oral testimony may in fact inhibit the receipt of the best information

15     under those circumstances.  And it focuses on elimination of the acts and

16     conduct of the accused from 92 bis so that that can be focussed on during

17     the course of the oral presentation of evidence.  And it is for that

18     reason, I think one of the extremely efficient mechanisms devised by this

19     institution to fulfil precisely the objective identified by the Court in

20     the last Status Conference, and we hope that that will be utilised to the

21     fullest extent in the course of this case, and we have done our best to

22     ensure that possibility.  So we -- that's a recognition of our commitment

23     to that process as well.

24             JUDGE BONOMY:  But it heralds for me -- it suggests to me that

25     you might be less keen on looking at how Rule 73 bis might be used, and

Page 383

 1     I'm coming to that view because you're pointing to things that are

 2     already being done to -- with a view to cutting the trial down to size,

 3     but you should not rely exclusively on what has been done already or

 4     proposed already or what you think might be done in relation to these

 5     motions.  You must assist the Trial Chamber to reach the right conclusion

 6     by being positive in your own approach to these possible means of -- of

 7     controlling the trial that are in 73 bis.

 8             Because you assist the Chamber by pointing out how a particular

 9     method in there might be used, it doesn't follow that it will be applied

10     against what you see as your particular interest.  There's nothing to

11     stop you telling the Chamber that you have no -- in fact, you're very

12     much against the use of a particular device, but if it is in the mind of

13     the Chamber, then here is how it might best be used to identify crime

14     sites, for example, that are reasonably representative of the indictment,

15     and it's that kind of assistance that the Chamber encourages you to give

16     so that the full panoply is available to it with all the supporting

17     information necessary to make the right decision.

18             MR. TIEGER:  No.  I understand, Your Honour, and we would

19     certainly recognise that 73 bis is another provision in the rules.  We --

20     I wasn't merely mentioning it as lip-service when I said we won't enter

21     into this exercise with any pre-judgements.  We understand our obligation

22     to assist the Court in every way and we will attempt to do so in this

23     particular exercise as well.

24             As the Court notes, we won't hesitate to alert the Court if we

25     think the -- a more limited application of that provision is more

Page 384

 1     appropriate.  Similarly, we won't hesitate to alert the Court if we find

 2     that there are areas where 73 bis does advance the objective of a fair

 3     and expeditious trial in precisely the way the Court hopes.  So I'm not

 4     coming to any prejudgement on this at all.

 5             JUDGE BONOMY:  And remember in your deliberations on this that

 6     the big problem for a Trial Chamber in applying 92 bis is dispensing with

 7     cross-examination.  The rules now allow, obviously, under a different

 8     rule, 92 ter, the presentation of the bulk, if not all, of the evidence

 9     in chief of a witness in writing, and cross-examination is often seen as

10     an essential part of a fair trial in relation to particular evidence, and

11     that will have a bearing on the decisions that are made under 92 bis.  It

12     doesn't mean that the result will be the presentation viva voce in live

13     court time of all the evidence of a witness.  It may have to be done a

14     different way, more constructively, the use of reports, the restriction

15     of cross-examination.  All of these are available to the Trial Chamber as

16     well, but there will undoubtedly be some of your 92 bis applications to

17     which that approach is taken, and that's not to prejudge any of them.  So

18     you cannot, I think, rely on a complete success on that front.

19             MR. TIEGER:  I understand.  I think a maximal success would

20     satisfy the Prosecution.

21             JUDGE BONOMY:  Now, just a couple of other examples to show you

22     our concern.

23             If you look at paragraph 68 where we're dealing with deportation

24     and inhumane acts, there the charge relates to both forcible transfer and

25     deportation.  And then if you go to 74, we have reference to both

Page 385

 1     forcible transfer and deportation, and that's in relation to Srebrenica,

 2     which is part of what's covered in paragraph 68.  It's Srebrenica and the

 3     municipalities.  And then if you look at 75, there the reference is to

 4     acts of forcible transfer with no reference to deportation.

 5             Now, that may well be intended, but that's the sort of detail

 6     that we invite you to pay attention to in assisting us to identify, in

 7     case it's necessary, what is reasonably representative of the indictment.

 8             And then if I can mention just another -- I think another two

 9     examples.

10             In Schedule C, if you look at item number 26, and the reference

11     there to Planjo's house, and it was a detention facility at least from

12     August until December 1992.  And if you go back to Schedule B and look at

13     number 19 of Schedule B, you'll see dates which extend beyond the period

14     that it's said to be a detention facility in Schedule C.

15             Now, we've highlighted a number of areas of concern in the

16     schedule just to -- I'm not suggesting that's a complete list, but where

17     we've identified particular potential inconsistencies in the scheduling

18     and in the pleading and the indictment so that you would comment on these

19     in particular.

20             And then just the final example.  If you look at paragraph 60(f).

21     60(f) relates to forcible transfer or deportation from homes with the

22     municipalities and from Srebrenica.  And then if you look at (i) and (j),

23     neither of these makes any reference to Srebrenica, and that may be

24     deliberate.  And (j) also does not refer to private property in relation

25     to any of the municipalities, and that may be deliberate.  But there --

Page 386

 1     you know, when you start looking very closely at compiling a complete

 2     list of the crimes charged, you come across these uncertainties as a

 3     Trial Chamber, because the Trial Chamber doesn't have the entire picture

 4     at the moment that you have of the -- of the case.  So these are reasons

 5     for inviting you to provide the assistance that's called for in this

 6     order.

 7             MR. TIEGER:  Your Honour, may I ask for a quick point of

 8     clarification?

 9             JUDGE BONOMY:  Yes.

10             MR. TIEGER:  Perhaps I didn't read the order either as carefully

11     as I might have or certainly not in light of the Court's comments just

12     now, but it occurs to me that -- at least at the time I read it

13     initially, the kinds of clarification that the Court has just sought with

14     respect to paragraph 60 would not necessarily have arisen from the focus

15     indicated in the order, that is -- and I'm not -- my concern is not that

16     the Court didn't spell it out carefully enough for me in that particular

17     context.  As I say, the problem may have been the way I read it, but I

18     just want to make sure that we are focusing on what the Court wants us to

19     focus on and don't respond with an insufficient submission.

20             JUDGE BONOMY:  The way these tie together in that particular

21     example, Mr. Tieger, is that if you were looking for a number of crime

22     sites that included damage to private property, then it would appear that

23     in relation to both -- to all of the municipalities there doesn't appear

24     to be in that paragraph a reference to private property, and that may be

25     deliberate, but it's -- to avoid any misunderstanding, it's important to

Page 387

 1     look at exactly what is said and not to assume too much because of the

 2     use of the word "including," although that doesn't arise here but it's an

 3     example of how you can read more into a charge than the Chamber is doing

 4     at the moment.

 5             I've certainly found in the past that it's been perfectly

 6     adequate to ignore the impact of the word "including" because of the

 7     number and extent of the specified examples that have been referred to in

 8     indictments in this Tribunal.

 9             So while this is, as you rightly point out, focussed on

10     identifying ways in which the scope of the trial may be reduced, one of

11     these is reducing the number of crime sites, or, obviously, reducing the

12     number of counts, and part of the exercise, if that is to be done, is

13     ensuring that everyone is clear what the end result is, what's in and

14     what's out if that's what happens.  So we took the opportunity of trying

15     to identify areas which could usefully be clarified at this stage.

16             Now, is there anything else you want to say on this order before

17     I ask Mr. Karadzic for comments?

18             MR. TIEGER:  There is, Your Honour.  Thank you.

19             The Court -- well, I've just committed myself, quite

20     appropriately, to ensuring that the Prosecution does the best job it can

21     in response to the Court's order.  The Court mentioned earlier, "You'll

22     obviously need time to digest the material and compose a response."  I

23     think the three weeks allotted under ordinary circumstances would be

24     appropriate, but I have to tell the Court we cannot -- the timing is such

25     that we can't fulfil our obligation here at this point, and the reason is

Page 388

 1     simply the court recess, because of the work plan, the dead-lines, the

 2     anticipated commencement of trial after the court recess, this is a time

 3     when various leaves were allotted to the team in this compressed period

 4     of time, and the team is essentially disbanded.  Even Ms. Uertz-Retzlaff

 5     and I will be gone for limited periods of time, but we -- there will be

 6     very little overlap, and certainly very little overlap with the core

 7     members of the team during that period of time.  That's not to say that

 8     no work can be done, but at a minimum, I would ask that the Court extend

 9     the dead-line at least two weeks beyond the point at which the team

10     re-assembles after the recess and that would mean August 31st.

11                           [Trial Chamber and Legal Officer confer]

12             JUDGE BONOMY:  Thank you Mr. Tieger.  Anything else?

13             MR. TIEGER:  No, Your Honour.  I have one more matter to raise,

14     not directly in connection with this --

15             JUDGE BONOMY:  I'll come back to that.

16             Dr. Karadzic, the order is mainly aimed at the Prosecution, but

17     the tradition in the Tribunal is to hear the Defence on issues like this

18     and not to confine it to the Prosecution.  Is there anything at this

19     stage you want to say on the various things I've been discussing with

20     Mr. Tieger?

21             THE ACCUSED: [Interpretation] Thank you for keeping the rule

22     audiatur et altera pars, and I'm going to take any such opportunity given

23     to me.  From my point of view, any reductions in the indictment that you

24     have in mind, the best reduction would be to withdraw the indictment

25     completely, but I don't think that the OTP is going to do that.

Page 389

 1             Since I'm not defending myself from liberty, I would be inclined

 2     to have the simplification of the indictment from the point of view of

 3     general interest, the interest of the people who have already been

 4     convicted based on some incidents and erroneously established facts.  I

 5     would like to have every incidence that happened during the civil war in

 6     Bosnia-Herzegovina re-examined.  If anything is reduced, I have already

 7     spent significant time on any such things that may be excluded from the

 8     indictment.  There is nothing for me to say with respect to that.

 9             As for what my learned friend said about the information that the

10     Trial Chamber needs, the Trial Chamber needs as much information as

11     possible, not unilaterally produced.  That's why I'm very cautious with

12     regard to Rule 92 bis.  The Trial Chamber needs as much information on

13     both sides, but correct information.  I don't know how viva voce

14     testimony can muddle things up.  It can only clarify things even further.

15     What I need -- want to do, is I want to call 92 bis witnesses and make up

16     for their interviews, and I may even be agreeable to not calling some of

17     them.

18             I have seen your order, Your Honour, and I have noticed something

19     that gave me great joy.  You yourself have noticed that there are

20     positions there to the effect there's several red ones killed, several

21     blue ones and it is not specified who killed whom and how many people

22     were killed.  I'm not going to accept that without specifying and

23     clarifying who, when, how.  You can't have an utterance somebody killed

24     somebody else.  I am in favour of re-examining every incident.  I know

25     that some people have been sentenced to a life -- to life in prison

Page 390

 1     because of a -- the Markale incident, and I intend to prove that they are

 2     not guilty.  I am not against a broad indictment as long as the Defence

 3     is permitted to produce any piece of evidence they want.

 4             JUDGE BONOMY:  Well, the Defence will be allowed to produce and

 5     lead relevant evidence and the criminal responsibility of others may not

 6     be relevant in the circumstances of your trial.  What is relevant is

 7     whether the incident took place and perhaps how it took place, but the

 8     extent to which you may examine the evidence that was led against

 9     individuals is another matter.  The incidental effect, of course, of

10     proving that -- or demonstrating that an incident happened in a way

11     different from that found before would reflect on individuals who have

12     been convicted, but do not expect that you will be retrying other cases.

13     That's not the function of this trial.

14             Now, Mr. Tieger, the extended period that you request to respond

15     will be granted so that you ensure that a thorough job is done.  There's

16     no point in rushing this job.  And the Pre-Trial Conference, when

17     scheduled, will undoubtedly be after the 31st of August, although

18     possibly not long after it.  The important thing is that this is

19     available for any discussions that take place in the context of the

20     Pre-Trial Conference, that is, leading up to it or actually at that

21     conference.

22             Now, that completes the items I had identified.  Is there

23     anything else, Mr. Tieger, you wish to raise?

24             MR. TIEGER:  Just quickly, Your Honour.  It's a matter that I

25     raised at the previous conference, and I raise it again because it seemed

Page 391

 1     to be implicated by some of the comments at today's session.  It seems to

 2     me a good deal of additional information about the accused's position in

 3     relation to events at Srebrenica was adduced.  That is the kind of

 4     information that I would have expected to receive in compliance with the

 5     65 ter order.  I believe last time there was reference to the -- to our

 6     review of the Defence pre-trial brief and what we considered to be a

 7     failure to comply with Rule 65.  I believe at that time the Court did not

 8     have a -- had not had an opportunity to review the submission, and I

 9     would simply renew our position that the Defence pre-trial brief did not

10     comply with Rule 65 ter (F).  And there is some inconsistency clearly in

11     any suggestion by the Defence that the Prosecution may not be focusing on

12     fundamental issues when there's a failure to comply with a rule which is

13     intended to advance just that objective.

14             JUDGE BONOMY:  Remind me what you suggested might be the remedy.

15             MR. TIEGER:  Well, I didn't suggest a particular remedy at the

16     time.  If I recall the Court's words in general, it was that the Court

17     would take the opportunity to review the submission, make its

18     determination and issue an appropriate order.  Presumably if it was found

19     not to be in compliance, there would be an order to submit a pre-trial

20     brief that, in fact, did fulfill the requirements of 65 ter (F).

21             JUDGE BONOMY:  The other possibility is that the Prosecution are

22     allowed, as and when it occurs, to lead evidence that they perhaps

23     dispensed with when some particular issue is specifically challenged

24     without notice from the pre-trial brief.

25             If your anxiety is that there's a lack of reassurance that it

Page 392

 1     might be safe to take a bold course in relation to certain witnesses,

 2     then perhaps that's a more appropriate form of relief in this instance.

 3             MR. TIEGER:  That's -- well, first of all, that's one aspect of

 4     the Prosecution's concern.  Another one is perhaps more -- arises more

 5     directly and more obviously out of the provisions of 65 ter (F), and

 6     that's a matter of focusing energy, resources, effort on the particular

 7     areas of concern and dispute.  So there's also a resource issue in

 8     addition, but I appreciate what the Court's saying.  And I also recognise

 9     that the Court may be considering exactly what a suitable remedy might

10     be.

11             I trust, in any event, that the Court is not surprised that I

12     would raise this, is presumably aware of even if I don't articulate fully

13     the ramifications of a -- a pre-trial brief that essentially circumvents

14     the requirements and objectives of 65 ter (F) and the -- the various

15     permutations or the various consequences that has during the course of

16     the case.  We'll obviously try to deal with it.  It's not ideal.  To the

17     extent the Court can -- will consider and can craft a suitable remedy, we

18     would urge the Court to do so, and as issues arise during the course of

19     the case as a result of any problems arising from that deficiency, we'll

20     bring them to the attention the Court and see what can be done

21     accordingly.

22             JUDGE BONOMY:  Thank you.

23             Mr. Karadzic, you heard this submission the last time, that the

24     pre-trial brief that you submitted is inadequate in that it does not

25     explain the basis on which you challenge material to be presented by the

Page 393

 1     Prosecution.  Mr. Tieger is asking the Trial Chamber to do something

 2     about it.

 3             Can I have your comments?

 4             THE ACCUSED: [Interpretation] Yes, Your Lordship.  Despite all

 5     the sympathy I have the opposing side, it is not my intention to do their

 6     job for them.  Even the practice direction issued by the ICTY earlier

 7     this year does not make it necessary for me to do what Mr. Tieger wants

 8     me to do, and I can quote that in English:

 9             "[In English] It should be noted that since the burden is on the

10     Prosecution to prove the case, the accused is under no obligation to

11     agree to the narrowing of the issues in dispute and may simply refuse to

12     agree to any facts."

13             JUDGE BONOMY:  What is it you're referring to?

14             THE ACCUSED: [Interpretation] I'm reading a quotation from the

15     manual on developed practice.  [In English] That is a manual of developed

16     practice -- practice that has been issued earlier this year.

17             JUDGE BONOMY:  Now, there's a difference in refusing to agree

18     facts and a narrowing the issues in dispute and stating what is the basis

19     on which you put issues in dispute.

20             The rule that Mr. Tieger refers to requires you to state in

21     general terms the nature of your defence.  Well, you've given a very

22     general indication of that.  Then the matters with which you take issue

23     in the Prosecutor's pre-trial brief, and then thirdly, in the case of

24     each of these matters the reason why you take issue with it.

25             Now, he rightly points out that you didn't undertake that

Page 394

 1     exercise at all, and therefore you didn't comply with what the rules say

 2     you should do, and by doing that you admit nothing.  You agree to

 3     nothing.  So your reasons so far for not doing it doesn't actually

 4     persuade me.

 5             THE ACCUSED: [Interpretation] I believe that should I be more

 6     precise concerning details and so on, I would be doing the Prosecution's

 7     job.  It is up to them to prove their allegations.  I presented a very

 8     general position.  I'm looking forward to this trial where we will be

 9     able to examine and scrutinise each detail, but for me now to guide them,

10     to provide guidance for them, I have no duty to do that, and I don't

11     think it would be rational.

12             JUDGE BONOMY:  Well, that simply is a repetition of what you've

13     already said, which doesn't really help me because it doesn't answer the

14     criticism made.  I will have to consider this with my colleagues and

15     decide whether there is any action we ought to take at this stage.

16             Now, I think that completes what Mr. Tieger has to raise.  Is

17     there any other matter which you wish to raise, Mr. Karadzic?

18             THE ACCUSED: [Interpretation] Your Lordship, at this stage when I

19     have 1 million pages of material, 270 days of witness examination, CD and

20     video material that I need a lot of time to go over, I cannot be more

21     specific in response to the pre-trial brief of the Prosecution.  I would

22     use up my ammunition for nothing.  So at this particular stage when I

23     have such voluminous material, I cannot be more specific than I was.

24             JUDGE BONOMY:  That's a much better reason than you've given so

25     far.  What view my colleagues take of that I can't say at this moment.

Page 395

 1             Now, is there any other matter you wish to raise?

 2             THE ACCUSED: [Interpretation] No, not in relation to these

 3     issues.  I have something to raise in relation to other issues if I may.

 4             JUDGE BONOMY:  Yes.

 5             THE ACCUSED: [Interpretation] First of all, I would like to

 6     inform that my advisor, Mr. Sladojevic, is prepared to meet today, to

 7     meet any time, but the result of that meeting will be nothing but a

 8     social one because we still do not have what Dr. Stojkovic requires.  So

 9     that's something we can settle right away.  I think that Mr. Sladojevic

10     will always meet with the opposing side whenever he's expected to do

11     that.

12             I would like to inform you --

13             JUDGE BONOMY:  Just stop there.  I mean, that's very encouraging,

14     and I don't accept that such a meeting will achieve nothing, because it

15     will continue to advance the case for your obtaining some of the material

16     at least, if not all, to carry out the appropriate analysis.  It may be

17     that you will be able to devise a way of identifying a selection of the

18     material without necessarily having it all in your hand at the moment.  A

19     satisfactory way of working out how to identify a sample, a

20     representative sample.  So that meeting would not be pointless and simply

21     social, and I encourage you to ensure that the meeting does take place

22     either today or tomorrow.  And, Ms. Uertz-Retzlaff, I hope you will do

23     your best to ensure that.

24             MS. UERTZ-RETZLAFF:  Actually I see here an e-mail from

25     Mr. Sladojevic making a proposal, but I know that we also want to speak

Page 396

 1     to him on another issue, so I will have to check, and I'm actually

 2     already doing this, whether all people are in house so that we can deal

 3     with the two open issues.

 4             JUDGE BONOMY:  Thank you very much.  Now you've got something

 5     else, Mr. Karadzic?

 6             THE ACCUSED: [Interpretation] I have two or three brief matters.

 7     First of all, I'd like to inform you that our correspondence is in

 8     progress.  We're expecting response from several governments.

 9     Unfortunately, some governments, not just that of Bosnia and Herzegovina,

10     but some of the older states as well, they perceive cooperation with the

11     Tribunal as cooperation with the OTP only.  We try to avoid motions where

12     we ask the Chamber to order such cooperation.  We used a letter to

13     High Representative in Bosnia and Herzegovina to influence the government

14     in Bosnia and Herzegovina to start cooperating with the Defence and

15     disclose material that they are duty-bound to disclose.  There will be

16     more material, even more sensitive material, but they refuse to cooperate

17     even when it comes to innocent material.

18             Now, as for Minister Bildt, Minister Bildt has still not met with

19     my advisor --

20             JUDGE BONOMY:  Before you go into that, you know that in each

21     instance where you have submitted a motion for a binding order in

22     relation to any state that our practice has been to invite that state to

23     respond to us, and the Prosecution so far have taken the position that

24     they have no position on this.  It seems to us realistic to give the

25     states in question 14 days to respond, but we are acting on these motions

Page 397

 1     as quick as we possibly can, and if there are any others they will

 2     receive the same treatment.

 3             THE ACCUSED: [Interpretation] Thank you for that.  Some countries

 4     have replied, some haven't, and some replied saying that they would

 5     cooperate with the Prosecution only and that's quite unusual for us, and

 6     we will keep insisting.  This was just a first wave of our requests to

 7     these governments, because this case can be clarified only if the

 8     countries that support this material and all countries that were on the

 9     ground back then provide everything that is in their possession.

10             Now, as for Minister Bildt, my advisor travelled to Stockholm,

11     and Mr. Bildt did not have time to meet.  It was scheduled for yesterday

12     in Brussels again and nothing happened once again.  I simply need one

13     hour of Mr. Minister Bildt's time to resolve some crucial matters

14     concerning which he certainly has information.  Minister Bildt, while he

15     was High Representative in Bosnia and Herzegovina, required everyone to

16     fully cooperate with The Hague Tribunal.  Therefore, he should be under

17     that obligation as well.  The position of the UN is to be as

18     accommodating as possible, and my advisor is scheduled to be in Geneva to

19     examine some important documents there.  I simply am concerned that all

20     of these postponements will affect the beginning the trial.  We need to

21     have the material in order to come up with a proper defence.

22             JUDGE BONOMY:  I'm extremely concerned to hear that the meeting

23     proposed by Mr. Bildt has not taken place, and I will instruct inquiry to

24     be made about the reason.  I will invite him to indicate what the problem

25     is, and hopefully we can resolve this.

Page 398

 1             THE ACCUSED: [Interpretation] He announced that he would see my

 2     advisor in August in Brussels, and my advisor will travel to Stockholm

 3     again if necessary.

 4             JUDGE BONOMY:  I understood when we made an earlier order in a

 5     decision in this case that a meeting had been arranged I think for about

 6     the 14th of July, and I'm extremely disappointed that that has not taken

 7     place, and August, while it's almost upon us, is another possible five

 8     weeks away because it could be any time in August.  So I will inquire

 9     what the problem is and endeavour to resolve it.

10             THE ACCUSED: [Interpretation] I believe that we're talking about

11     a date in mid-August, and if you are disappointed, you can only imagine

12     how disappointed I am.

13             JUDGE BONOMY:  Thank you.  Now, you have something else?

14             THE ACCUSED: [Interpretation] No, not for the time being,

15     Your Lordship.  Thank you.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE BONOMY:  Mr. Karadzic, I know your position on everything

18     being conducted in public, and largely that has been respected, but there

19     are undoubtedly benefits to be had from meetings that take place between

20     the Prosecution and your associates.  Now, they take place in private, as

21     you -- as you know.

22             I think there are circumstances in which I could assist the

23     progress of this case and the production of material that you require by

24     participating in meetings of that nature.  These meetings can include you

25     and indeed on two -- is it one?  I can't remember.  On one or two

Page 399

 1     occasions we've had such a meeting and then published the outcome.

 2             I intend that there should be a further meeting in connection

 3     with the preparation of this case in the week beginning the

 4     17th of August, probably the morning of the 20th of August, but I suspect

 5     that the best form of meeting then would be one in private attended also

 6     by at least one of your associates.  I think that would be in your

 7     interests.  So I invite you to give thought to authorising one of your

 8     associates to attend such a meeting along with yourself.  You might even

 9     authorise it without your own attendance, but I'm not encouraging you to

10     do that.  You ought to play a full part in any meeting that takes place

11     in connection with the case.

12             So give thought to that, and we shall communicate the final date

13     and suggested time much nearer the time.

14             I have again found this meeting to have been productive, and I

15     think that following upon it certain issues which were clarified today

16     can be resolved, and I hope that all of that will prove beneficial in

17     ensuring the fairly early start of this trial.  I have nothing more to

18     say on the likely date of the trial.  The indication given the last time

19     is that it is likely to start in September, and that remains the

20     position.

21             The Status Conference is now adjourned.

22                           --- Whereupon the Status Conference adjourned

23                           at 1.06 p.m.