1 Friday, 10
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.12 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T, the Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 JUDGE MAY: The first matter is this: We
9 have prepared a schedule of sittings through until the
10 beginning of September and copies are available for
11 that from the Senior Legal Officer.
12 The next matter is this: We have, as I
13 understand it, these matters to consider, and I
14 propose, briefly, to set out the agenda. There may be
15 other matters too, but the outstanding matters are
16 these: I'm going to give a brief ruling on the
17 international armed conflict documents. We will then
18 deal with the Kiseljak binder, the video evidence, the
19 affidavits, the transcripts, any other outstanding
20 Prosecution material, and at the end, we will spend a
21 little time on some housekeeping to make sure that
22 matters are in order.
23 Turning to the international armed conflict
24 binders, we've already said that we will admit them,
25 but I think I should add this: that in doing so, we
1 are applying the same principles in relation to
2 admissibility as those we apply to the admissibility of
3 the documents when ruling on the outstanding exhibits.
4 The objections related to hearsay, lack of
5 foundation, and authenticity, signature, or relevance,
6 or indeed other objections, are all matters which go to
7 the weight of the evidence and not to its
8 admissibility. However, only legible exhibits will be
9 admitted and those with translations in one of the
10 languages of the Tribunal.
11 There is one matter which I want to raise
12 about those exhibits, and that is in relation to
13 Exhibit 2436, conveniently can be found in the Defence
14 objections, and it states -- the objection states that
15 material from the report has been redacted. Now, it
16 would be of assistance, before ruling on that document,
17 to know what the position is.
18 It may be convenient if we return to that
19 during the course of the morning. Mr. Scott, if you
20 could let me know what the position about that document
22 MR. SCOTT: Yes, Your Honour.
23 JUDGE MAY: Thank you. We'll go on to the
24 Kiseljak binder. In relation to that, we shall apply
25 the principles which we set out in our written ruling
1 in relation to the Tulica binder; that is, we will
2 exclude witness statements and investigators' reports.
3 We will admit exhibits, that is, photographs, and
4 videos, maps, death certificates, and exhumation
6 I take it that all the transcripts which are
7 referred to in the report or binder have been ruled on,
8 and unless there are any other matters outstanding, I
9 think that that covers the binder.
10 I should say that we have taken into account
11 the binder itself, of course, and the documents in it,
12 and also the Defence objections which are set out in
13 their document which we've had in front of us; and
14 applying the Tulica ruling, that would be our ruling
15 about that binder.
16 Are there any other outstanding matters, Mr.
18 MR. SCOTT: No, Your Honour. On Kiseljak, if
19 it please the Court, I was simply going to add that I
20 think that the revised binders, in the past couple
21 weeks, have been revised binders now down to two
22 volumes, and with a new index and an exactly -- as far
23 as I know, exactly parallels the Court's ruling. It
24 now contains the index, exhibit materials, no
25 investigator's report, no statements. So to the best
1 of my knowledge, the revised binders, two volumes, are
2 completely consistent with the Court's rulings.
3 JUDGE MAY: Yes, Mr. Browning.
4 MR. BROWNING: Your Honour, we would simply
5 ask that the Prosecution confirm that all material has
6 been provided to us. According to our records, there
7 are certain documents set out in the binder that we
8 have not received. Moreover, there were some documents
9 that were produced on February 25th, and there were no
10 translations provided in connection with those
11 additional documents.
12 MR. SCOTT: I confirm what I said earlier,
13 Your Honour. I think there were one or two documents
14 which were removed from the list, for whatever reason;
15 either legible copies could not be found, so they were
16 simply removed from the index and the material, or
17 there had originally been a wrong number and it was
18 like the next number, two numbers later, so that the
19 index was changed to correct that. But as far as I
20 know, the binders that I'm now looking at or have
21 before me for Kiseljak are the final binders that have
22 resolved, to the best of our ability, all the
23 outstanding objections raised by the Defence.
24 MR. BROWNING: Your Honour, we would simply
25 propose the opportunity to review that and sit down
1 with the Prosecution and point out the documents we
2 have specific concerns about.
3 JUDGE MAY: Yes.
4 MR. BROWNING: Thank you.
5 JUDGE MAY: The next matter concerns the
6 video evidence. The position is this: that we have
7 now been provided with an amended Prosecution
8 document. By my calculation, there are 41 videos in
9 the document, and analysing it, some 17 are of
10 interviews of various people, 7 of press conferences, 6
11 of ceremonies or public events, 3 of damage, and there
12 are 8 of other matters, miscellaneous, but that does
13 include reports, the sort of which we have been
14 admitting during the trial.
15 I must say, speaking for myself, these are
16 all the sort of items which we have admitted during the
17 trial, applying the principles with regard to hearsay
18 evidence which we have done and which we've frequently
19 set out. That is, that matters of foundation and
20 absence of foundation and absence of authentication are
21 matters which go to the weight, and these are the sort
22 of items which speak for themselves.
23 But perhaps I could start with the
24 Prosecution. You were going to go through the videos
25 with the Defence. I hope that's been done and that
1 this is now in final form.
2 MR. LOPEZ-TERRES: [Interpretation] Yes,
3 that's right, Mr. President.
4 Personally, I counted 42 extracts, not 41.
5 Perhaps that was a mistake I made. These are extracts
6 that come from 16 video cassettes, and some extracts
7 come from that same cassette. As of today, we have
8 presented to this Trial Chamber 28 extracts which were
9 played here. They came, according to our estimates,
10 from 17 different cassettes.
11 Therefore, there are 42 extracts that we
12 would have liked to present to the Trial Chamber, but
13 for time reasons we were not able to do that. And we
14 considered this week to present four extracts that are
15 ready and are available to you, if you want them, as
16 regards the extracts for which there are transcripts,
17 because obviously there are some extracts which, as you
18 said, which speak for themselves. They are just
19 pictures, and there's no need to have a transcript.
20 The images are sufficiently clear.
21 As regards the transcript, we reviewed it
22 thoroughly. Unless I made a mistake, we think that we
23 gave to the Defence all those transcripts which
24 correspond to the cassettes which are listed here and
25 for which, in fact, there was a need to have
2 JUDGE MAY: Mr. Lopez-Terres, I think you'll
3 find the number is 41. It was 42 originally. I may be
4 wrong, and correct me if I am. Two were then removed
5 and, I think, one added in the new list, so the number
6 should be 41. It seems to meet with some agreement.
7 MR. LOPEZ-TERRES: [Interpretation] I'm sure
8 that you're right, Mr. President. On my list, there's
9 still 42 extracts, but I'm sure that you have a
10 complete list.
11 JUDGE BENNOUNA: [Interpretation]
12 Mr. Lopez-Terres, as regards the transcripts, I think
13 that whatever the situation, the transcripts must be
14 exhaustive, because we, from a practical point of
15 view -- well, first we've got to look at the
16 transcripts before we can look at the images, and it's
17 from the transcripts that we can know exactly what it's
18 about. Obviously, if there is no sound, then you're
19 right, but you're only right in that case, if there's
20 no sound, if it's silent films. But insofar as there
21 is sound, we need the transcripts.
22 MR. LOPEZ-TERRES: [Interpretation] Once
23 again, according to information that I have, and we
24 worked last week on that transcripts question, unless I
25 made a mistake, all the corresponding transcripts were
1 submitted and they are complete.
2 What can happen sometimes is that the
3 translation of a cassette deals with several events,
4 and some of the events are not those that we consider
5 relevant for this case, so on the same page you might
6 have part of a transcript which is not part of
7 something that's of interest to us. That's simply
8 because the Translation Service used a joint document
9 for several conversations or several events, but
10 there's no selection that we made in the transcript.
11 When it's submitted, it's submitted in full.
12 The Defence already received the transcripts
13 in question. That was recently, and the Trial Chamber
14 now is being given the transcripts.
15 JUDGE MAY: Mr. Browning, let me say this
16 before you begin: that we have your document setting
17 out your objections, and of course there's a number
18 which you haven't yet received, and I hope you've had
19 the opportunity of going through the matter and
20 reviewing it with the Prosecution.
21 MR. BROWNING: Your Honour, first of all, let
22 me say that I have made every request possible to meet
23 with the Prosecution and to resolve as many of these
24 differences as possible. Unfortunately, no such
25 meeting has taken place.
1 I would like to say that we have analysed the
2 list that we received yesterday, and with the
3 assistance of the usher, I would like to distribute our
4 position now that we have additional information from
5 the Prosecution.
6 JUDGE MAY: Why has no meeting taken place?
7 MR. BROWNING: Your Honour, at the hearing on
8 Wednesday, March 1, I, at the end of the day, asked
9 Mr. Lopez-Terres if we might be able to meet. The next
10 day, a letter was sent to Mr. Lopez-Terres when the
11 meeting did not take place. The following day, on
12 Friday, Mr. Sayers sent a letter to Mr. Nice,
13 requesting a meeting. Sunday evening, we received yet
14 the sixth list of OTP videos. It is an ever-changing
15 list, and what happened was we got this list of 40-plus
16 videos and a stack of transcripts. And what we had to
17 do, even though we had requested them to simply provide
18 us with the exhibits so we could easily tell what we
19 were dealing with -- the mess that we were given on
20 Sunday evening was a list of videos, and we were told
21 to go to our video library, videos that we had
22 previously received from the Prosecution, and take a
23 two- or three-hour tape and, using the transcript, try
24 to determine what portion they are now considering to
25 be their exhibits.
1 It has required a tremendous amount of time
2 on my part and on the part of my staff. I apologise
3 that we are objecting to numerous videos, but it is not
4 without trying, on the Defence's part, to work this
5 issue out.
6 As it stands right now, there are still ten
7 videos that we have never received from the
8 Prosecution. We have made numerous and repeated
9 requests to receive the information, but it simply
10 hasn't been coming to us. This seems to be a
11 never-ending process with the Prosecution with respect
12 to the videos. As I understand what Mr. Lopez-Terres
13 is saying, there is still more changes yet to come, and
14 there has to be closure on this issue.
15 We are in the process of trying to prepare
16 our various motions, and we need to know what the
17 evidence is that the Court will consider or the
18 evidence that becomes part of the Prosecution case.
19 JUDGE MAY: Let me just interrupt you.
20 Mr. Lopez-Terres, why did a meeting not take
21 place? It was the clear order of the Court, or, at the
22 very least, a request, that there should be such a
24 MR. LOPEZ-TERRES: [Interpretation]
25 Mr. President, I wasn't myself present when those
1 instructions were given. I was informed that the
2 Chamber wanted contacts to be taken with the Defence.
3 I myself was very present in the courtroom this week,
4 as you know. I was not in the position to speak with
5 the Defence, and Mr. Browning was not always here.
6 Once again, I would say that further to the
7 request that was made, we performed a final analysis of
8 all the cassettes for which we had transcripts, and we
9 submitted to the Defence, through those lists that you
10 know now but which the Defence knew already, our last
11 position when the cassettes were given. And those that
12 remained and those -- and the transcripts were pending,
13 we gave our opinion about all of them.
14 There is a clarification that should be
15 made. Formerly, when we would present to the Chamber
16 extracts, we wanted to present only an extract. The
17 difficulty was that the Defence wanted each time to
18 have the entire cassette from which the extract came.
19 The cassette would have many other extracts that had
20 nothing to do with what we were attempting to present,
21 and therefore the Defence found itself, on several
22 occasions, with cassettes which had extracts that we
23 were not planning to show, extracts that were shown
24 later, and the cassettes had exhibit numbers which were
25 different depending on the case, and, in fact, this did
1 cause some difficulty on their part.
2 However, I would say it was the request of
3 the Defence, that wanted to be sure that we would not
4 present the extracts that could have been fabricated or
5 truncated, and that's why we gave the entire cassettes
6 each time, which perhaps may have contributed to the
7 confusion in which the Defence finds itself now. But
8 that was not what we had intended to do at the
10 MR. SCOTT: Your Honour, if I might add to
12 JUDGE MAY: Just a moment.
13 MR. SCOTT: All right.
14 [Trial Chamber confers]
15 JUDGE MAY: Yes, Mr. Scott.
16 MR. SCOTT: Your Honour, very briefly, with
17 no effort to repeat what Mr. Lopez-Terres has said.
18 There was, I understand -- I was not present in the
19 meeting. I understand there was a meeting toward the
20 latter part of February. Subsequent to that meeting,
21 there have been extensive exchange of correspondence.
22 So let me just clarify to the Court, and whether we're
23 in agreement or disagreement with the Defence on this,
24 I guess I'm not sure, but I would say to the Court
25 there has been extensive communication between the
1 parties on this issue. Any suggestion that there has
2 not been is in error.
3 There has been an effort to present this in
4 the most -- which admittedly is some difficult material
5 because of the way that it was originally presented to
6 the OTP by way of these composite tapes, but there's
7 been a concerted effort to simplify, as far as
8 possible --
9 JUDGE ROBINSON: The question is not whether
10 there has been extensive consultation over a period of
11 time. The question is whether, subsequent to the order
12 made by the president, there has been the consultation
13 that the Chamber required.
14 MR. SCOTT: Your Honour, I can only say that
15 I believe there was. I was not personally -- as the
16 Court may understand, none of us, on any of the teams,
17 I suspect, do everything, but my understanding is that
18 there has been extensive consultation up to and
19 including the past several days.
20 The submission -- the index that the Court
21 has in front of it that was given out a few minutes ago
22 was provided -- this last further version -- I don't
23 want there to be any impression there weren't any prior
24 versions. This last current version was submitted to
25 the Defence on Sunday with the material -- with these
1 excerpts and items attached. They are cross-referenced
2 by number. The items have markings on them as to which
3 excerpt they relate to: 26.1, et cetera. They are
4 provided with the chart.
5 So, Your Honour, I guess all I can say is we
6 have tried. We've made a good-faith effort. We think
7 we have done it, Judge Robinson, pursuant to the
8 Court's instruction. Perhaps not perfectly, perhaps
9 not completely to the Defence's satisfaction, but we
10 have made the best effort. I think that's where it
12 JUDGE MAY: Yes, Mr. Browning.
13 MR. BROWNING: Your Honours, I would
14 respectfully disagree with the statements --
15 JUDGE MAY: We don't want to hear about
16 this. Now, let's get on with it. What is the position
18 MR. BROWNING: Your Honour, there are
19 currently 10 videotapes that we have not received, a
20 eleventh videotape we cannot decipher what it is the
21 Prosecution is referring to. There are several tapes
22 that are incomplete, and the transcripts are
23 incomplete. In one tape, for example, there are
24 47 places where -- 46 places where the transcript reads
25 "incomprehensible" and seven times when it reads
1 "interruption," and there are various other documents,
2 videotapes that have not been transcribed.
3 Your Honour, our position is --
4 JUDGE BENNOUNA: [Interpretation] Excuse me.
5 If in the transcript there is something which is not
6 comprehensible, then it's just incomprehensible.
7 That's it. This is not a reason for not admitting the
8 cassette. It is possible that the cassette technically
9 may not be very audible, that is, one does not hear it
10 well, and that would be indicated in the transcript;
11 that's all. But as we said, this has to do with the
12 weight that should be given to this or that document,
13 but it is not a question of admissibility.
14 The problem, in fact, which arises now for
15 you is to settle some purely technical problems with
16 the Prosecutor, because as regards admissibility, there
17 should be no difficulty in admitting a cassette. We
18 still have to know whether that does, in fact -- in
19 effect, that is the cassette that you need. If there
20 is a proper correspondence between the cassette and the
21 transcript there, then there would only be technical
22 problems that arise, and those are the problems that
23 have to be settled.
24 Can we agree as to the admissibility of the
25 evidence on the basis of what was just said by the
1 president, that principle, and I ask that you settle
2 technical problems amongst yourselves, because we
3 cannot continually go back to the technical problem and
4 wasting time and the Tribunal's resources.
5 MR. BROWNING: I certainly very much agree,
6 and the tape that I'm referring to we have a transcript
7 of but have never been provided the video. So until we
8 have the opportunity to see the video, we can't
9 determine the accuracy of the transcript.
10 JUDGE MAY: Let's see what you've got.
11 MR. BROWNING: Thank you.
12 JUDGE MAY: Now, Mr. Browning, you can help
13 us with this? Do you accept any of these?
14 MR. BROWNING: Yes, Your Honour. There
15 are --
16 JUDGE MAY: Let us know what you accept,
17 please. Let's go through what you accept. At least it
18 will start clearing the ground.
19 MR. BROWNING: Okay. Exhibit 117. On page
20 1. I'm sorry, Your Honour.
21 On page 4, 1280.2 was admitted on the 6th of
22 March, 2000, according to our records.
23 On page 6, 1361.1. That video was first
24 identified yesterday, but we have no objection
25 otherwise than the untimely designation.
1 On page 7, 2126. Ms. Bower has indicated
2 that that was previously admitted as Z1167, and
3 assuming that's the case, we would have no objection.
4 Same page, 2258.
5 JUDGE MAY: Yes. Now, going through the
6 objections, you refer to one which you don't say you've
7 received at all; is that right?
8 MR. BROWNING: The videos that we have not
10 JUDGE MAY: Yes.
11 MR. BROWNING: The videos we have not
12 received are Z26; 26.1; 26.2; 26.3; 431.1; 478, which,
13 if I'm not mistaken, I think 478 might have been
14 removed from the list yesterday.
15 JUDGE MAY: Yes. Yes. It's not on the
17 MR. BROWNING: I apologise for that. 528.1,
18 548.3, 652, and 1786. The one video that we still
19 cannot decipher from our tapes what the Prosecution is
20 referring to is 1298. The reason we can't decipher
21 that is I believe there was no translation provided to
23 JUDGE MAY: Yes.
24 [Trial Chamber confers]
25 JUDGE BENNOUNA: Mr. Browning, there is
1 something in your objection where you mention that it
2 is in contravention of Trial Chamber's timetable order
3 directing that outstanding exhibits be produced by
4 28th of January, 2000. For example, I think number
5 1428. And there are others, 2602 and so on.
6 Can you explain exactly what is the meaning
7 of this objection?
8 MR. BROWNING: Your Honour, as I understood
9 the Court's timetabling order, there was to be a time
10 period so that the Prosecution would identify the
11 outstanding exhibits so we wouldn't be in this
12 situation at the tail end of the case, having to waste
13 the Tribunal's time on these sort of issues. If the
14 Trial Chamber decides to change that scheduling order
15 or determine it's not applicable to videos, in that
16 particular case we would have no objection, but we are
17 in this situation because the designation of the videos
18 is coming to us at the tail end of the case, and we
19 would do our best to work through it; it's just been
20 very difficult, Your Honours.
21 JUDGE MAY: Mr. Browning, given the general
22 principles that we have laid down, given the fact that
23 the case is coming to an end, what is your submission?
24 What do you ask us to do about these?
25 MR. BROWNING: Your Honour, the videos that
1 we have not received or have not been provided
2 information from the Prosecution so we can identify the
3 segments that they intend to use, we ask that they be
4 excluded from evidence. With respect to the tapes
5 where the video and audio are incomplete, we certainly
6 understand the position of the Trial Chamber that in
7 some cases no one can do anything to the contrary to
8 determine if there is better quality tape out there.
9 It is surprising, however, that there are so many tapes
10 that cut in and out and there are gaps in the tape, but
11 I understand there is nothing that we might able to do
12 along those lines.
13 I note our objection on that, and I guess
14 it's really a -- what will be the ground rules for use
15 of videos in this case. Can a video be admitted if
16 there are gaps in the video?
17 And I guess there are two other categories of
18 documents that we object to. I understand the Trial
19 Chamber's position, but I do think it's worth giving a
20 specific example of what I see as nothing more than a
21 witness statement that is in the form of video, and
22 that is 1281.1.
23 This is Nelson Draper, an officer from
24 CanBat, who is talking about an investigation
25 concerning Stupni Do. He proceeds to begin the tape by
1 describing that this tape shall only be used on a
2 need-to-know basis, and he explains the limitations in
3 his investigation, and then he proceeds to describe
4 things such as what a 4-year-old child proceeded to
5 tell an unnamed woman, who then, in turn, told someone
6 within CanBat or UNPROFOR. So you have multiple levels
7 of hearsay, and we have never had the opportunity to
8 cross-examine Mr. Draper concerning that investigation
9 or his statement, which is essentially coming into
10 evidence through this video. I would submit that it is
11 not in accordance with the Rules of the Tribunal
12 dealing with affidavit statements of witnesses. It
13 does not -- we are precluded from our right of
14 confrontation with regard to the statements that
15 Mr. Draper makes, and he was never even designated as a
17 There are two other tapes which fall within
18 that category: 2544, 342.4, and one other, 1292.
19 JUDGE ROBINSON: What page is that, 342.4?
20 MR. BROWNING: It would be on page 2.
21 JUDGE MAY: Deal with 342.4. You say "a
22 broadcast on Serbian TV." You say in here it would be
23 unreliable. That's purely a matter of weight, isn't
24 it? But you go on to say "contains a witness
25 statement." What is this all about?
1 MR. BROWNING: Your Honour, basically it is a
2 Serbian army scout testifying on Serbian TV about --
3 basically, the statement is made by this witness that
4 the HVO asked Serbs to shell a particular location. We
5 have been denied the opportunity to cross-examine that
6 witness. I think it would be unfair for this clip to
7 come into evidence without the opportunity of
9 JUDGE MAY: And the last one?
10 MR. BROWNING: 1292, which is on page 5. And
11 I'll also note 2544, which is on page 7.
12 JUDGE MAY: Deal with 1292. Again, you say
13 this is Serbian TV.
14 [Trial Chamber confers]
15 JUDGE MAY: You say it's Serbian TV; is that
17 MR. BROWNING: Yes, Your Honour.
18 JUDGE MAY: But again that's a point which
19 has got to be considered. And what is the witness
20 statement here?
21 MR. BROWNING: The witness statement concerns
22 Mr. Kordic, if I recall. I would need to pull the
23 specific transcript, which could be done fairly
24 quickly, Your Honour.
25 JUDGE BENNOUNA: [Interpretation]
1 Mr. Browning, as regards your last objection, are these
2 interviews which were distributed or did they come from
3 the archives? Because there's a difference between an
4 interview which was distributed or broadcast to the
5 public, which became a public thing which was seen by
6 other people, and other interviews which remained in
7 the archives. If I've understood you correctly, these
8 are interviews that were broadcast over television.
9 MR. BROWNING: With respect to this specific
10 example, 1292, if you consider Serbian TV to be a
11 reliable source, presumably it was broadcast over
12 television to the public by Serbian TV.
13 JUDGE BENNOUNA: [Interpretation] The problem,
14 you see, is that from the time that a video was
15 broadcast, it becomes evidence insofar as it had an
16 impact on the public. It's not the -- by the fact that
17 it had impact it is no longer a private thing but, rather,
18 public information, such as information found in a
19 newspaper or any other information distributed to the
20 public. It's a different thing between information
21 which is broadcast to the public and information which
22 remains confidential within an institution. Therefore,
23 from the time it has been distributed to the public,
24 it's known and it's going to have an effect on that
25 public, so as such, it's of interest to the Tribunal.
1 MR. BROWNING: Your Honour, in response to
2 your question, it is 1281.1 would be the one video
3 among those four that I've been discussing which would
4 not be available to the public. The other three appear
5 to be broadcasts made to the public.
6 JUDGE MAY: And you're going to deal -- you
7 dealt with 1292, and did you have one other?
8 Mr. Lopez-Terres, we'll hear you at the end.
9 MR. BROWNING: The other one is 2544, which
10 is on page 7. This is a broadcast, or appears to be a
11 broadcast. It is undated by the Prosecution, but it is
12 my understanding the broadcast was made seven months
13 after the events in Stupni Do. In that situation, I
14 believe it would be beyond the indictment period, and I
15 would submit that would have no bearing upon the
16 public's reaction to this particular broadcast.
17 JUDGE MAY: Thank you. Unless there's
18 anything else that you want to add, we'll hear from
19 Mr. Cerkez' Defence.
20 MR. BROWNING: The only thing else that I
21 would add, Your Honour, with respect to the transcripts
22 that have just been distributed, if they are identical
23 to the transcripts that I received, what takes place is
24 you have a half a page of transcript, followed by what
25 the Prosecution intends to designate as the "Z"
1 number. I would submit it would be more appropriate to
2 remove the portion of those transcripts that are not
3 part of the Prosecution exhibit. Otherwise, it will
4 simply create confusion in the record, in my opinion.
5 JUDGE MAY: So you're saying that they
6 contain -- what do you say they contain, Mr. Browning?
7 Let me see if I follow you.
8 MR. BROWNING: I was trying to -- as I
9 understand the way the Prosecution has laid out the
10 transcripts, they transcribe a tape in its entirety,
11 then choose to use a portion of that tape as an
12 exhibit. So if you look in your transcript book, you
13 will see several pages of transcription and then a "Z"
14 designation written into the margin. The one that I'm
15 looking at, you have three quarters of a page and then
16 you see the words "Z419.2." So three quarters of the
17 page has no bearing upon the exhibit being introduced,
18 is extraneous, in some cases contains separate material
19 that would be objectionable, and it would be better to
20 simply clearly designate the transcript for the
21 specific videos at issue without including extraneous
22 material either before or after those transcripts of
23 the Prosecution videos.
24 JUDGE MAY: Thank you.
25 MR. BROWNING: Thank you.
1 JUDGE MAY: Yes, Mr. Kovacic.
2 MR. KOVACIC: Thank you, Your Honour.
3 [Interpretation] The Cerkez Defence has been
4 following this list. This list has been narrowed down,
5 and practically all video material that would be
6 related to evidence, even such poor and insufficient
7 evidence against the co-accused Mario Cerkez, is now
9 However, in principle, we oppose the
10 introduction of videotapes as evidence in this way. We
11 believe that they can be introduced only with the
12 assistance of a witness who recognises the recorded
13 scene in a way, describes it, confirms it. Also, we
14 need information about the person who did the filming,
15 where, when, and it is only at such a point that that
16 kind of videotape can have corroborative value related
17 to other pieces of evidence.
18 I don't think there's any point in my
19 elaborating this point any further.
20 I just wish to add one more than thing, lest
21 I be misunderstood by the Court. There has been an
22 enormous amount of video material during discovery.
23 Recently, we gave up on following this entire story,
24 because we got a video from the Prosecutor and in one
25 clip it seemed that Arnold Schwarzenegger, the actor,
1 belonged to the HVO forces. And we viewed this 15
2 times, and when we realised what this was and when we
3 came to the conclusion that we could not confirm
4 whether this was filmed by the BBC or not and this was
5 BBC material, to tell you the truth, we gave up on the
6 entire thing. We saw that there was no evidence
7 against Cerkez, and we think that it is not worth all
8 this time and effort. Thank you.
9 MR. LOPEZ-TERRES: [Interpretation] To respond
10 directly to what Mr. Kovacic said, I see that he's got
11 a lot of humour, first of all. It was never claimed by
12 the Office of the Prosecutor that Mr. Schwarzenegger
13 was part of the HVO. I suppose that was a comment that
14 the journalist made and that it's become common
15 language now that somebody who was covered with
16 munitions and weapons is either called "Schwarzenegger"
17 or "Rambo". That's just part of the way people talk
18 today. But that doesn't mean that the Office of the
19 Prosecutor has to add the people who were being -- as
20 people being prosecuted here, Arnold Schwarzenegger.
21 As regards what Mr. Kovacic said, he did say
22 that for each cassette, he wanted somebody to come to
23 identify it, et cetera. And I would say if the
24 Tribunal is going to become the tribunal of every
25 journalist in the world, then we're prepared to do so,
1 but I'm afraid that's going to take a great deal of
3 JUDGE MAY: You needn't trouble about that
4 argument. It's the hearsay argument.
5 MR. LOPEZ-TERRES: [Interpretation] Very
7 JUDGE MAY: But perhaps you might deal with
8 the detailed argument that Mr. Browning put forward.
9 MR. LOPEZ-TERRES: [Interpretation] I would
10 simply like to say, and this is an illustration of what
11 I was explaining a few minutes ago more specifically,
12 perhaps, for Judge Bennouna, that the transcripts that
13 were transmitted to the Defence are transcripts that we
14 have, and they also have OTP reference numbers.
15 The Translation Service at this Tribunal,
16 which does not come under the authority of the OTP, let
17 me remind you, translated the cassettes successively.
18 By that, I mean if on the cassette there was several
19 events, several facts, you would find, on a single
20 page, the transcript which corresponds to several of
21 those events. And this is why on this document, for
22 example, that the Defence mentioned a few minutes ago,
23 Z442.4, which I would like to say, in passing, it
24 doesn't only talk about the Serbian army but the Jajce
25 Brigade, there are several translations, several
1 transcriptions, and, in fact, the top part has nothing
2 to do with the extract that we are asking the Trial
3 Chamber to review. If the OTP had understood that that
4 extract would also be taken into consideration, an
5 exhibit number would have been attributed to it. There
6 was no bad faith or any attempt on the part of the
7 Prosecutor to fool people and to push through
8 documents, but it was simply the fact that it was on
9 the same page.
10 There are only transcripts for which there
11 are reference numbers. If the Chamber wants, in order
12 to avoid any misunderstandings, assuming that there was
13 a misunderstanding, wants us to cut out the upper or
14 lower parts and that you consider only the transcript
15 which more specifically deals with the extract from the
16 cassette, we can do that. But it's self-evident that
17 only the extract with a reference number is the one
18 that we are asking review of.
19 As regards the second exhibit which was
20 mentioned by the Defence a few minutes ago, that is,
21 Z1292, it has been presented in the same way. The
22 upper part deals with another fact, another interview,
23 the lower part also, and we are not considering that.
24 The only thing that we are considering is the
25 transcript, which is in the middle of the page, with,
1 in the margin, the exhibit which is referenced.
2 I would also like to say that contrary to
3 what was said a few minutes ago, this document comes
4 from Croatian television and not from Serbian
5 television, as is stated at the beginning. This is the
6 logo of the television in Croatia, and Mr. Ivica Rajic,
7 the HVO commander in Kiseljak, is giving interview, and
8 the interview was given to Serbian television or French
9 television or Croatian television. It's really not of
10 any importance. What does matter is what the person
11 who is speaking says.
12 In general, in order to finish with this
13 argument, it seems to us that the all the problems
14 which are raised by the Defence through the chart that
15 has been established or Mr. Browning's comments this
16 morning, these are problems that are not part of
17 admission of exhibits, whether they be transcripts or
18 extracts, but simply a problem of weight which is to be
19 given by the Trial Chamber and the probative value that
20 the Trial Chamber will give to the various documents.
21 JUDGE MAY: Thank you. We'll consider this,
22 of course, and give you our ruling after the
24 We'll turn now to the affidavit evidence on
25 which we have submissions by all parties, apart from
1 the Defence of Mr. Cerkez. We have full submissions
2 from the Prosecutor and also from the Defence of
3 Mr. Kordic.
4 Unless anybody wants to add anything to those
5 submissions, we'll hear from Mr. Kovacic.
6 MR. KOVACIC: Just as a matter --
7 JUDGE MAY: I'm sorry. I had overlooked
8 that. Do you want to add anything of your own?
9 MR. KOVACIC: Pardon?
10 JUDGE MAY: Mr. Sayers, do you want to add
12 MR. SAYERS: I propose not to add anything to
13 the matter that's already stated in our papers. They
14 speak for themselves, but just a brief response to the
15 document we received yesterday from the Prosecution.
16 JUDGE MAY: Yes.
17 MR. SAYERS: It seems to me that the
18 Prosecution is saying, "We would like the Court to
19 admit these seven affidavits," and there's another one,
20 which have been submitted to us. The same arguments
21 apply to it.
22 In regard to the other affidavits which were
23 mentioned yesterday, and I have no idea how many of
24 them are, but apparently some others are still being
25 sought regarding Novi Travnik.
1 The arguments that we've made in our papers
2 apply to those and there is no point in repeating
3 them. But it just seems to us -- and do I want to add
4 this one point -- that what the Prosecution is
5 suggesting to this Court is that you, respectfully,
6 should invent a new Rule, not Rule 94 ter. You should
7 ignore Rule 94 ter. You should invent a new Rule that
8 applies to the process that the Prosecution is now
9 seeking to follow doing, and we think that that's
10 completely improper.
11 There is a Rule that addresses specifically
12 affidavits and formal statements. It's been in
13 existence since November, and it's absolutely clear.
14 It is simple to follow and it prescribes precisely how
15 the process should be done, and the Prosecution, quite
16 simply, has not done it, for all of the reasons we've
17 stated in our papers. I think the reason is because
18 they realise that at this late stage of their case,
19 they cannot comply with the specific timing or
20 substantive requirements of Rule 94 ter. And unless
21 they can, obviously the affidavits cannot come into
22 evidence, for all of the reasons that we've stated.
23 That's all I wanted to say, Your Honour.
24 Thank you.
25 MR. MIKULICIC: [Interpretation] Your Honour,
1 of course I would like to join everything that my
2 learned friend Mr. Sayers has said, and I believe that
3 this is not just a technical matter, but I think that
4 the question of admission of affidavits is of essential
5 importance because these documents can be very
7 Therefore, the Defence of Mr. Cerkez insists
8 on the procedure prescribed by Rule 94 ter being
9 followed, and we do not agree to some other procedure
10 that the Prosecution finds suitable should be
11 followed. We do not think that this Rule can be a lex
12 specialis. That's all I want to say.
13 JUDGE BENNOUNA: [Interpretation]
14 Mr. Mikulicic, could you tell us very briefly how you
15 understand 94 ter?
16 MR. MIKULICIC: [Interpretation] Your Honour,
17 I will be very pleased to do that. Mr. Cerkez's
18 Defence and I myself interpret Rule 94 ter just as it
19 is formulated, which means that an affidavit or another
20 formal statement may be used in the proceedings as
21 supporting material in relation to a fact which is
22 contested and which is referred to by a witness. Such
23 material must be delivered to the Defence before the
24 witness examination, and the Defence should have an
25 opportunity to lodge an objection and it should have
1 seven days in which to do so. Therefore, affidavits
2 may not be admitted as part of a package but only as
3 supporting material, along with a live witness
4 testifying in court.
5 This procedure simply has not been complied
6 with by the Prosecution. The Prosecution submitted
7 several affidavits and wished to submit them as
8 exhibits, just as it did the village binders and some
9 other materials. However, this is not the procedure
10 prescribed by Rule 94 ter.
11 I hope that I have answered your question,
12 Your Honour.
13 JUDGE BENNOUNA: [Interpretation] Thank you
14 very much.
15 JUDGE MAY: Yes.
16 MR. GUARIGLIA: Your Honour, just briefly.
17 We would rely mainly on the skeleton argument that was
18 presented to Your Honours.
19 Just a couple of points. It seems to us that
20 maybe our submission wasn't clearly understood by the
21 Defence. We have never tried to invent a new rule. We
22 have never tried to ignore that. Unfortunately, and
23 due to the practical problems that we have faced in
24 finding a procedure suitable for the national
25 authorities in Bosnia and for the parties, we were not
1 in a position to meet the timely requirements of
2 Rule 94 ter.
3 What we have said is that nonetheless, the
4 affidavits or former statements are corroborative in
5 nature, they all address facts in dispute, and that the
6 unfortunate possibility of complying with the timely
7 requirements doesn't cause a fatal prejudice or any
8 sort of prejudice at all, actually, to the Defence in
9 this case, and that the Chamber will be in a position
10 to be indulgent to the Prosecution, mindful of the
11 practical problems obtaining these affidavits have
12 caused. And in the event that that Chamber considered
13 that the timing requirements for 94 ter are essential,
14 the Chamber will still have the power to admit these
15 affidavits under Rule 89(C).
16 That was the core of our submission. Apart
17 from that, we have nothing more to add to our skeleton
19 JUDGE MAY: Thank you.
20 [Trial Chamber confers]
21 JUDGE MAY: We'll consider these two matters
22 now. We will take the coffee break. We will sit again
23 at quarter to, unless you hear to the contrary.
24 --- Recess taken at 10.15 a.m.
25 --- On resuming at 11.38 a.m.
1 JUDGE MAY: I deal first with the video
2 evidence, beginning by saying, as I did at the outset,
3 that we have admitted videos in this case. Very often,
4 they speak for themselves. However, there are
5 occasionally matters which give rise to concerns about
6 authentication and the like, and our ruling reflects
8 I would also add this: that, of course, very
9 often what's on a video isn't hearsay evidence at all;
10 it's merely an evidence of fact. For instance, public
11 ceremonies, proclamations, that sort of thing. All
12 that's being shown is what actually occurred, and so
13 there's no breach of any hearsay rule, if such existed
15 First of all, those -- and I will deal with
16 this by way of number, the exhibit number as on the
17 Prosecution list -- first of all, those admissible, not
18 objected to and already admitted, 117, 419.2, 1280.2,
19 1298, 1361.1, 2126, 2258.
20 The next category to be admitted are those of
21 public broadcasts, because once an item is broadcast,
22 it is in the public domain, it becomes a fact. This
23 was the broadcast which may or may not have an effect
24 upon the public, but it's also something which is
25 admissible of the broadcast itself, and the fact that
1 it's public gives it added authenticity. Under this
2 heading, admissible are 255, 342, 342.2, 342.5, 419,
3 1185, 1280.3, 1292, and 1356.1. In the same category
4 are the press conferences, 173, 235, 562, and the
5 public ceremonies, 330, 1186.
6 The following are excluded; first of all,
7 those not provided to the Defence: 26, 26.1, 26.2,
8 26.3, 431.1, 528.1, 625, and 1786. We accept too the
9 Defence submissions that where, in effect, what is
10 happening is that the broadcast or the video -- in one
11 case not a broadcast at all but for confidential
12 consumption; that is, Mr. Draper's broadcast is, in
13 effect, the giving of evidence by a witness not subject
14 to cross-examination and not subject to oath, and that,
15 of course, in effect, is evidence without
16 cross-examination and amounts to hearsay,
17 controversial, and of a sort which, in our view, should
18 be excluded as too prejudicial to be admitted without
19 cross-examination. 1281.1 and 2544 are in that
21 We also exclude matters outside the
22 indictment: 1428, 2482.
23 We also exclude as incomplete or merely
24 evidence which it appears to us not to be probative, in
25 some cases interviews: 342.3, an interview with Roso;
1 457.1, 1315.6, another interview with Roso; 1322, an
2 interview with Kostroman, and the date is unclear;
3 1347, another interview with Kostroman, 1347.2, 1390,
4 2238, 2602.
5 I turn next to the affidavit evidence.
6 The Prosecution seek to have admitted the
7 evidence of eight affidavits under Rule 94 ter, the
8 terms of which I will refer to briefly.
9 To prove a fact in dispute, a party may
10 propose to call a witness and to submit, in
11 corroboration of his or her testimony on that fact,
12 affidavits or formal statements signed by other
13 witnesses in accordance with the law and procedure of
14 the State in which such affidavits or statements are
15 signed. These affidavits or statements are admissible
16 provided they are filed prior to the giving of
17 testimony by the witness to be called and the other
18 party does not object within seven days after
19 completion of testimony of the witness through whom the
20 affidavits are tendered. If the party objects and the
21 Trial Chamber so rules, or if the Trial Chamber so
22 orders, the witnesses shall be called for
24 To this application, the Defence object. I
25 say the Defence submissions were made by Mr. Kordic in
1 writing, to which Mr. Cerkez joins. The objections
2 which are made are in this form:
3 First of all, it's said that the affidavits
4 or formal statements should be taken in accordance with
5 the law and procedure of the State in which they are
6 signed. This, they say, say the Defence, is a
7 procedure only available to States, and therefore to
8 admit the affidavits would violate the principle of
9 equality of arms. The Prosecution point out, on the
10 other hand, that the Defence may seek the assistance of
11 the Trial Chamber to obtain affidavits, and in
12 Aleksovski they were able to do so; and I can say that
13 in Kupreskic too, affidavits on behalf of the Defence
14 were admitted. That seems to us to be a sensible
16 There is no breach of the equality of arms
17 here. It is open to the Defence, as I have said, to
18 obtain these affidavits, and if not, they can certainly
19 apply to the Trial Chamber for their assistance.
20 The second objection is that the affidavits
21 must be supplied, according to the Rule, to the other
22 party before the principal witness testifies. The
23 Defence point out that to meet this requirement, they
24 would have had to hold back witnesses until virtually
25 the end of the case, important witnesses, and they also
1 point out that there is no prejudice to the accused.
2 The Trial Chamber, in this connection,
3 observed that Rules must be interpreted to give them
4 useful effect. This is a principle of international
5 law, expressed in French as: "l'interpretation par la
6 methode de la faire utile", and also in the Latin maxim:
7 ut res magis valeat quam pereat. And this reference to
8 this principle may be found in the Chorzow Factory
9 case, 1927, Permanent Court of Justice, the Corfu
10 Channel case, 1950, International Court of Justice.
11 The Trial Chamber applies this principle to the
12 Rule, and our Rule holds here that the admission of
13 these statements is not prevented by Rule 94 ter. To
14 do so would be to rule that a technical procedural
15 requirement, if it were right, would certainly lead to
16 or may lead to a defeat to the interests of justice.
17 We note, finally, that no prejudice to the
18 accused can be occasioned by the admission, at this
19 stage, of the affidavits. The Defence have had the
20 affidavits for some time and have been able to make
21 their detailed submissions.
22 I'm told that the Corfu Channel case was in
24 The next objection is that Rule 94 ter didn't
25 envisage the use which has been made of it in this
1 particular case, that is, validating witness statements
2 from some time ago.
3 The Prosecution respond that this was the
4 only practical course; namely, to have the witness
5 approve and swear to the original witness statement,
6 that witnesses here were prepared to make and did make
7 changes to their statements, and that if this course
8 wasn't followed, the Rule would be impractical.
9 The Trial Chamber observed that there is no
10 practical reason why this procedure should not be
11 followed and that a witness should not look at his or
12 her statement and swear that it's the truth. So that
13 reason does not find favour.
14 The next objection is that the Rule
15 anticipates that there is a live witness whose evidence
16 on a specific fact is corroborated by the affidavit in
17 question, and in this case there was no live witness.
18 The Prosecution, in response, say that the
19 evidence in the affidavits is, in fact, corroborative
20 and that the term of "fact in dispute" should be given
21 a broad interpretation.
22 I turn, in those circumstances, to the
23 particular witnesses and deal, first of all, with Mujo
24 Alispahic. He gives evidence about Rijeka and
25 Dubravica. In this connection, I would say that the
1 Trial Chamber is of the view that the Prosecution's
2 submission about this is correct, that all that is
3 required is that there should be some confirmation or
4 support of evidence in a very general sense and that
5 the term "facts in dispute" should be given a very
6 broad interpretation.
7 There's evidence of Dubravica from Abdulah
8 Ahmic; Payam Akhavan, from Rijeka; Sulejman Kavazovic,
9 and Witness L. There's evidence about trench-digging
10 from Witness U, Fuad Zeco, Mirsad Ahmic.
11 We turn next to Nusreta Hrustic. She gives
12 evidence about Gacice -- again I'm summarising this
13 very generally -- about the attack on Gacice, and about
14 Mr. Kordic's appearance on television. Again, there is
15 evidence in this case, a great deal of evidence, about
16 television appearances by Mr. Kordic, for instance, by
17 Nusreta Mahmutovic, Anto Breljas, Witness Q, and
18 there's evidence about the attack on Gacice from
19 Mr. Morsink, Witness V, and the transcript of Major
21 I turn next to Sedzad Hrustic. He gives
22 evidence about Mr. Kordic being at an oath-taking, and
23 he also gives evidence about events in the cinema.
24 There is, it's pointed out by the Defence, no evidence of
25 Mr. Kordic being present at the cinema in any of the
1 rest of the evidence. However, given the broad
2 interpretation that I said we should, there is much
3 evidence that Mr. Kordic was in Vitez; Witness Z, for
4 instance, and Anto Breljas. There is much evidence
5 about the cinema, and, in those circumstances, we're
6 satisfied that this criterion is approved -- is met, I
7 should say.
8 The next witness is one whom I'm not going to
9 name. She was subjected to sexual attack in the
10 cinema, she says. There is, it's pointed out by the
11 Defence, no evidence of such attacks in the cinema.
12 However, evidence was given by Witness S of such
13 attacks in the area of Vitez, and in those
14 circumstances the criterion is met.
15 Salih Sadibasic, evidence about Mr. Kordic on
16 television. Again, I've covered that. Vasvija Kermo
17 gives evidence about Loncari and Jelinak. Again, there
18 is substantial evidence on both those topics, that is,
19 the attacks on those villages. Mr. Kavazovic, Witness
20 H, Witness T, Witness A, Witness O, and Witness J both
21 deal with Loncari, Jelinak, and also, I should mention,
23 Number 7 is Mr. Morsink. His affidavit
24 arises in this way: that he said in his original
25 statement that a list was supplied to him of
1 detainees. The list was supplied by the HVO in Vitez.
2 He was given that list. He did not mention that in his
3 evidence. It arose as a matter in dispute. Therefore,
4 it was suggested that an affidavit be supplied. In
5 this case, there is much evidence about the detention
6 in the cinema. This list is a list of detainees which
7 is admissible.
8 Finally, the statement of Mr. Causevic, the
9 affidavit of Mr. Causevic. He gives evidence about
10 Vitez and Dubravica school. Again, there is much
11 evidence on all those matters. The vet station,
12 evidence was given by Mr. Fuad Zeco. There was
13 evidence, much evidence about Mr. Kraljevic and on the
14 relationship between Mr. Cerkez and Mr. Kraljevic.
15 Angus Hay, Anto Breljas, and Lee Whitworth gave
16 evidence. Likewise, there is much evidence, which I
17 will not enumerate, on Mr. Miroslav Bralo.
18 For those reasons, the submission that there
19 is no live witness giving the evidence which this is
20 corroborative of, that submission is rejected.
21 Finally, we have to consider, in light of the
22 Defence objections, whether there should be
23 cross-examination of the witnesses. We have considered
24 that. We do not think that that is required or
25 necessary in this case. We think that the matter is
1 covered by the affidavit being on oath. But when we
2 come to consider this evidence, we will, of course,
3 bear in mind that it was not given subject to
5 Yes. We turn to the next matters, and I
6 think the next matter is the transcripts. Mr. Scott,
7 were you going to deal with those?
8 MR. SCOTT: Yes, Your Honour.
9 JUDGE MAY: The confidential witness, of
10 course, you can address us on; Mr. Kaiser, without much
12 MR. SCOTT: I understand. I can be brief.
13 Your Honour, in terms of the confidential
14 witness, maybe I'll discuss it generically, without any
15 identification, and if that's the case -- it might be
16 in a private session, I suppose. I leave it in the
17 Court's hands, whether it might be ultimately better to
18 discuss it in private session.
19 JUDGE MAY: If you could deal with the matter
20 in public, so much the better. But if you want to go
21 into private session at any stage, I'll do so.
22 MR. SCOTT: I think I can attempt to do it in
23 public session, Your Honour.
24 Your Honour, the transcript of that witness
25 is, in the Prosecution's view, very important. It
1 touches on issues -- both general issues of the case,
2 including such things as international armed conflict.
3 It also touches upon at least one of the accused very
4 specifically. We think that the admission of that
5 transcript to be entirely consistent with the Court's
6 other rulings on transcript evidence.
7 There was a full and, in our view, searching
8 cross-examination in the earlier case. There has been
9 no articulation of any reason to think that
10 cross-examination in this case would be substantially
11 different. Any such questions that might be raised
12 according to questions of credibility, et cetera, as
13 the Court's ruled before, goes to weight. We think,
14 and submit, Your Honour, that the transcript of the
15 confidential witness should be admitted.
16 JUDGE MAY: Just help us, if you can. You
17 say it touches on one of the accused. In general
18 terms, what does it say?
19 MR. SCOTT: Your Honour, it talks about, I
20 think, meetings with Mr. Kordic in Zagreb. So we think
21 it's highly probative, Your Honour, by a reliable -- by
22 an eminently reliable source, and again any need for
23 cross-examination has been satisfied by
24 cross-examination in the earlier case by Defence that
25 had, for these purposes, virtually identical
2 If the Court will allow me to turn -- I'm
3 sorry, either way; however, the Court would like to
4 proceed. Would you like the Court then to proceed with
5 the other transcript matter?
6 JUDGE MAY: No. We'll deal with them one at
7 a time.
8 MR. SCOTT: Thank you, Your Honour.
9 MR. SAYERS: With respect to the confidential
10 witness, Your Honour, this witness testified for a
11 number of days in the Blaskic case, as the Court
12 knows. I believe he gave about 250 pages worth of
13 testimony, and many exhibits were introduced through
15 The focus of his testimony was, of course, as
16 the Court knows from his background, politics and
17 political figures.
18 MR. SCOTT: Your Honour, excuse me. I think
19 at this point we're going to have to request private
20 session. I apologise for the interruption, but ...
21 MR. SAYERS: I don't think a private session
22 is necessary, Your Honour, but --
23 JUDGE MAY: We're in one.
24 [Private session]
13 page 16495 redacted private session
13 page 16496 redacted private session
13 page 16497 redacted private session
13 page 16498 redacted private session
13 page 16499 redacted private session
13 page 16500 redacted private session
13 page 16501 redacted private session
13 page 16502 redacted private session
2 [Open session]
3 MR. SCOTT: Your Honour, I know we're getting
4 toward the end and the hour is short, and I know the
5 Court's view on this, but if the Court will allow me
6 literally about three minutes concerning Dr. Kaiser.
7 I do think it's an important point, and I
8 think it can be quickly covered, and the Court can
9 certainly be in a position to rule quickly, but I ask
10 the Court to just give us a few minutes to at least try
11 to persuade the Court as to our position on this
13 If I could ask the usher to hand to the
14 Court. Copies of this were provided to Defence counsel
15 yesterday, but for ease of reference, if you want to
16 provide an additional copy today, you may.
17 JUDGE MAY: Yes, Mr. Scott.
18 MR. SCOTT: Your Honour, we understood the
19 Court's -- well, two things. To set the scene, the
20 objection to Dr. Kaiser's transcript coming in when we
21 were dealing with these issues more extensively a few
22 weeks ago was largely on the basis, at least from the
23 Defence, that that was in the nature of an expert
24 witness, who had not been properly presented to the
25 Court as such. And the Court's own ruling, it appeared
1 that the Court gave substantial weight or consideration
2 to the fact that the Court considered the items to the
3 proof to be cumulative.
4 Let me say that what we have done, Your
5 Honour, what we asked the Court to consider, is some
6 very -- a limited amount of Dr. Kaiser's testimony. I
7 have handed the Court now two documents. One I'll
8 just -- I'll just start with the one page entitled
9 "Kaiser Evidence." The Court will see we have been, I
10 think, extremely selective as to a portion of the
11 transcript, a total of some 33 pages, and certain
12 exhibits that accompany those portions of the
14 What the other document does, Your Honour,
15 the chart, the other chart that is some two pages, to
16 give some further idea as to what this testimony covers
17 and the issue of cumulativeness, Your Honour, what this
18 does is indicate on the left side the particular
19 location addressed by Mr. Kaiser. We submit that in
20 these portions he is not providing expert opinion; he
21 is simply saying, "I was at such locations and observed
22 this damage." He is essentially a contemporary
23 observer at these locations.
24 For instance, as an example, Loncari mosque.
25 He was at the mosque. It was destroyed by a charge.
1 He talks about that at pages 6 -- 10614 to 10615.
2 There is a photograph of that. Then that's a quick
3 summary, Your Honour.
4 In terms of whether the evidence is
5 cumulative or not, Your Honour, we reviewed the
6 evidence to date, or at least up until the last week or
7 so in the case, and the closest evidence that would
8 come to touching on this issue is in the far right box,
9 Your Honour.
10 We submit to the Court that on these points,
11 based on a very careful review of Dr. Kaiser's
12 evidence, it is not cumulative. For instance, on
13 Gomionica, the only evidence that touches on that
14 specifically, one might even broadly construe it, was
15 that one witness talked about Muslim homes being
16 destroyed in Gomionica. That is not the same as the
17 religious properties that Mr. Kaiser would indicate
19 Your Honour, we would ask the Court to
20 consider that on these very selected showings, which is
21 only a small portion of Dr. Kaiser's overall testimony,
22 that the Court allow it. Our review of the Blaskic
23 case, Your Honour, is that Dr. Kaiser's testimony was
24 important. Quite frankly, we do believe there will be
25 a substantial hole in the case, in the Prosecution's
1 evidence, if at least these portions of his evidence
2 are not admitted.
3 Thank you, Your Honour.
4 JUDGE MAY: Mr. Sayers. Other than to say
5 that we should stick to our earlier ruling, is there
6 anything you want to add?
7 MR. SAYERS: No, Your Honour.
8 MR. KOVACIC: No. Thank you so much.
9 JUDGE MAY: I think immediately I should say
10 that what this deals with, of course, are pure matters
11 of fact. This is what this witness observed, and that
12 is the thrust of the Prosecution's submission.
13 If you want to say anything about that, do.
14 MR. SAYERS: I am the first to admit, Your
15 Honour, that I have not had the opportunity extensively
16 to review the transcript or the portions of the
17 transcript given to us yesterday, but it appears, and I
18 stand to be corrected on this, but it appears that
19 Dr. Kaiser went to Bosnia-Herzegovina, he says on page
20 10578, in October of 1995, when the ceasefire began,
21 having been asked by UNESCO to take up the post of
22 representative in Bosnia-Herzegovina.
23 I cannot say that it appears that this expert
24 witness was a contemporary observer of the damage that
25 other witnesses have testified about. He appears to
1 have visited the particular locations at issue long
2 after they actually occurred. So he doesn't appear to
3 be attesting to facts which are relevant to this case.
4 Of course, I suppose he does attest to the
5 facts as he saw them when he finally went to the
6 locations at issue some years after the events at
7 issue, but that still seems to me to partake more in
8 the nature of expert testimony, trying to give his
9 views on what occurred contemporaneously, not being a
10 contemporaneous observer himself, and therefore I see
11 no reason to separate pieces of his testimony. He is
12 an expert. He testified as an expert in Blaskic, and I
13 don't think there's any reason for the Court to depart
14 from its earlier ruling. Thank you.
15 JUDGE MAY: Mr. Kovacic.
16 MR. KOVACIC: Your Honour, I should maybe add
17 just one sentence. Indeed, in all those evidences
18 offered through this witness, there is not really
19 probative value. We know from this case, from any
20 other evidences, that there was a lot of burned houses
21 or ruined houses.
22 Unless this witness, or material connected to
23 that, could demonstrate who did it, when, and how, so
24 some causal connection, then yes, we could discuss
25 that, but there is not such material offered. And that
1 is irrelevant. That is only 200 pages of material more
2 in the case which does not have any probative value.
3 Thank you.
4 [Trial Chamber confers]
5 JUDGE MAY: We've considered this. We take
6 into account what the Prosecution says of this, but,
7 nonetheless, these were matters on which we ruled not
8 very long ago. We can see no strong argument for
9 departing from our earlier ruling, and we shall stand
10 by it.
11 MR. SCOTT: Your Honour, then if I could
12 address as to one other outstanding -- the Court may
13 have other outstanding items, which it indicated
14 earlier, housekeeping and other matters, but if the
15 Court would allow me then to turn to one last -- I
16 would think the last evidentiary issue. And likewise,
17 Your Honour, indulge me a few moments on Dr. Cigar and
18 a couple of documents associated with him.
19 There are --
20 JUDGE MAY: We've been handed a bundle of
21 newspaper articles.
22 MR. SCOTT: Yes, Your Honour.
23 JUDGE MAY: Exhibit Z2817.
24 MR. SCOTT: That's correct, Your Honour. And
25 the argument concerning Dr. Cigar will essentially be
1 in two parts. I will cover a part of it concerning
2 some non-media material, if you will, and Ms. Somers
3 will talk about the items, the open-source material
4 that's been provided to the Court.
5 Your Honour, in terms of -- everyone's
6 obviously aware of your ruling on Dr. Cigar. It's not
7 our point in coming here today to argue that further.
8 However, there were some documents which had been
9 anticipated to be introduced through Dr. Cigar.
10 We've again reviewed his three binders of
11 materials. He had three binders of supporting
12 material, if you will. These documents, Your Honour,
13 have an existence independent of Dr. Cigar. They are
14 not in -- they exist independent of him. Whatever
15 significance they have exists independent of him. They
16 are simply like other evidence, other documents.
17 There is no disclosure issue concerning these
18 documents, Your Honour, because they were documents
19 disclosed last fall, some time ago, well before
20 Christmas. They are the category which the Court has
21 readily admitted under -- in other circumstances. For
22 instance, some time ago when we used this chart about
23 different kinds of exhibits, whether it was HVO
24 documents, HV documents, BBC, other media, ECMM, et
25 cetera, the documents -- I'm going to get to the point,
1 Your Honour. I'm only going to ask the Court to
2 consider about seven or eight documents. All of them
3 fall into similar categories.
4 The fact that they were once associated with
5 a report by Dr. Cigar, Your Honour, we submit should
6 not disqualify them as being considered in evidence.
7 We have gone through and identified the
8 following exhibits as the only ones, other than the
9 media materials, which Ms. Somers will address, that we
10 would ask the Court to admit. In fact, many of them,
11 it appears to be, are not disputed, but because of the
12 Cigar ruling there may be some question.
13 So if the Court would allow, we would ask
14 that Exhibit 274 -- of course, all of these are
15 proceeded by "Z" -- Exhibit Z2745, which had been part
16 of the core bundle and apparently at one point agreed
17 to by the Defence, but there was some later objection
18 raised to authentication.
19 Exhibit Z281, which we think was agreed to
20 but was also incorporated as part of Dr. Cigar's
22 JUDGE MAY: Mr. Scott, do you have copies of
23 these or can you tell us what these are?
24 MR. SCOTT: Without looking at the exhibit
25 list, Your Honour, I don't think I can specifically
1 say. If the Court would give me a moment.
2 I believe most of them can be generally
3 characterised, Your Honour, as HVO and HVO-HDZ
5 Exhibit 274. I think it may be easier to see
6 on -- 274, Your Honour, is an HVO-HDZ document
7 concerning a meeting, calling of a meeting of the
8 Travnik Regional Community by Dario Kordic and Ignjac
9 Kostroman, on the 10th of November, 1992.
10 Exhibit 281 is a record of the HDZ-BiH 2nd
11 General Assembly in Mostar.
12 We would also ask for Exhibit 606 to be
13 admitted, which is, again, an invitation by Mr. Kordic
14 and Mr. Kostroman to a meeting dated the 5th of April,
15 1993. Apparently the objection there had been lack of
17 Exhibit 729.1. It's a certificate that a
18 particular HVO soldier was wounded on the 19th of
19 April. Again, apparently the previous objection had
20 been lack of foundation.
21 943.3. Your Honour, I'm sorry. That must be
22 a new exhibit that wasn't on mine the last time I
23 looked at this list. It is a second report by a civil
24 rights investigator, dated the 19th of May, 1993. It's
25 one of the U.N. investigators sent into Central
2 Exhibit 1220.2, which was a document by
3 Marijan Skopljak, dated the 28th of September, 1993,
4 HVO, or HDZ, if you will, document, Your Honours. It
5 was also specifically mentioned by Mr. Elford in his
6 testimony. Again, it's our position it's not a
7 document separate or distinct from many, many other HVO
8 documents that have been admitted into evidence.
9 Finally, Exhibit 1434, which is an ECMM
10 report dated the 7th of -- I'm sorry -- 12th of July,
11 1994. Although again, Your Honour, looking at this
12 chart, seems to indicate that it's in. If it's in,
13 it's in, obviously. The problem, Your Honour, is there
14 were some documents that were included in Cigar's
15 supporting material, and it was not clear whether some
16 of these were, in fact, in evidence or not.
17 In any event, Your Honour, we would ask the
18 court to include and admit 274, 281, 606, 729.1, 943.3,
19 1220.2, and 1434, if not already admitted, and I'll
20 leave to Ms. Somers the open-source material. Thank
21 you, Judge.
22 MS. SOMERS: I promise to be very brief, Your
23 Honours. Of the two binders of material, most of which
24 were open source, the articles which are listed, I
25 believe, would provide necessary points of information,
1 almost all of which come from interviews either with
2 Franjo Tudjman or with Dario Kordic himself; Mate
3 Boban; Josip Manolic, the security services chief at
4 one time. Subsequently -- some of these articles are
5 written subsequent to his departure from that
7 The point we try to give very briefly. We
8 apologise. Some of it thrown together a bit too fast,
9 and we apologise for any brevity, but just to let the
10 Court know what the gist of it is, and these are not
11 the whole articles we seek to introduce. If the Court
12 takes a look at the B/C/S parts -- and we'll clean this
13 up considerably if the Court is so interested in having
14 these materials -- there are just some points that are
15 highlighted, and these would be the only points that we
16 think would be of particular relevance.
17 If the Court wishes to see these further,
18 because these were -- except for number 1 and number 3,
19 which are written in 1996 and 1998, the rest are
20 written close in time during the time of the conflict,
21 very much relevant in terms of time frame to the issues
22 that have been raised in the Prosecution's case.
23 Again, we are only seeking to have -- I must
24 point out to the Court that there are some obituary
25 notices that were taken from the Croatian newspapers,
1 and the explanation is the content of it distinguishes
2 between soldiers dying in Bosnia and soldiers dying in
3 Croatia, HV soldiers. We would have to make sure this
4 is cleaned up so the Court can have an accurate
5 translation of all the different obituaries.
6 And I just want again to the court that these
7 are all Croatian publications -- Globus, Nacional --
8 either Croatian or Croatian orientation, if it's from
9 the Bosnian Croat section.
10 JUDGE MAY: Ms. Somers, this is the binder we
11 have, Z2817.
12 MS. SOMERS: It is, sir.
13 JUDGE MAY: Yes, Mr. Sayers.
14 MR. SAYERS: Let me just begin,
15 Mr. President, by saying this puts us in a little bit
16 of a difficult position. As I'm sure the Court knows,
17 we've got substantial obligations that could be argued
18 to fall due a week from now, and we still don't know
19 what the evidence in the case is. We really do need to
20 have closure on this issue.
21 JUDGE MAY: Well, this is why we're ruling
23 MR. SAYERS: Exactly. Let me just turn to
24 the exhibits themselves. I don't have them before me,
25 and I did not realise that these issues were going to
1 be raised, but insofar as Exhibits Z274 and 281 are
2 concerned, our objections are noted on the list that
3 was delivered to us today, the OTP exhibit list, which
4 consists of about -- well, of 68 pages. I have no idea
5 what the numerical count on these exhibits is, but our
6 objections are stated there.
7 Exhibit 606, if I might just draw the Court's
8 attention to page 29, is not even listed, so I don't
9 even know what Exhibit 606 is.
10 Exhibit 729.1, we've stated our objection, as
11 recorded by the Prosecution.
12 Exhibit 943.3. Let me say that we registered
13 no objection to that. So that appears to be
15 Exhibit 1220.2 on page 52, our objection is
16 that there's a missing translation, but I have, I must
17 confess, some recollection of this issue coming up, and
18 maybe it is this document, a translation having been
19 provided. If it has been provided, then obviously the
20 basis for our objection would be withdrawn. If it has
21 not been provided, then the question has to be posed:
22 When will it be provided? And that's a real problem
23 for us, along the lines that I just mentioned, and I'll
24 get into that in just a minute.
25 Exhibit 1434, I think that we registered no
1 objection to that, and that's accurately recorded in
2 the Prosecution's chart.
3 With respect to this new binder of so-called
4 open-source materials, might I just draw the Court's
5 attention to the very first one, because I think this
6 is representative of the general objection that we
7 would make.
8 It appears to be an article from Globus in
9 1996, and if you return to the translation of it -- I
10 mean, the article goes on for some four
11 pages -- there are translations of snippets, extracts
12 taken from this article, and we believe that's not
13 fair. If the article is to be admitted, then all of it
14 should be admitted and there should be a translation of
15 all of it so that we can understand what the article
16 says, what its context is, and where the snippets that
17 have been extracted from it stand in regard to that
18 overall context. And I think that objection adheres
19 generally to the articles in here, which apparently
20 have all been translated, or at least the ones that I
21 can flip through right now, just in part and not in
23 With respect to the other documents that the
24 Prosecution mentioned, I really can't locate them in
25 here. Obituary note -- maybe these are them.
1 Provided there is an accurate translation
2 provided of these obituaries, as the Court stated in
3 its previous rulings, they appeared as they are in the
4 press. Presumably they're factually founded. But the
5 general problem is the lack of translations of these
6 substantial number of articles and only partial
7 translations having been provided.
8 This is not a new issue, Mr. President, and I
9 must confess it is somewhat surprising that it arises
10 on the last day of the Prosecution's case.
11 MR. KOVACIC: Your Honours, I would join what
12 my colleague said, but I would add, relating to those
13 Prosecution open-source materials where we are dealing
14 with press articles, here we are having a couple of
15 interviews or similar statements of either top
16 politicians or intelligence officers, or better to say
17 head intelligent officers of Croatian at that time, in
18 the press at a contemporary time.
19 I think all of us are very well educated and
20 experienced persons to understand that no politician,
21 particularly an intelligence officer, would relay
22 anything which is near to true publicly at the time of
23 such critical events. So I really don't think there is
24 any probative value of what either Mr. Tudjman, or
25 Mr. Manolic, or anybody else listed here, would say to
1 the public at that time.
2 In addition, I notice another piece of
3 information here. Those are announcements about
4 deceased persons from the newspaper.
5 I should just say that it is a national
6 custom in Croatia and Bosnia, and other ex-Yugoslav
7 countries, to print obituaries, which are paid, so
8 those are informations either by family, or by friend,
9 or some third party, or anything else. So it is also
10 not relevant information, because there were examples
11 -- and perhaps we will deal with that in the Defence
12 case, if necessary -- there were many examples where,
13 for various reasons, the friends, or families, or
14 somebody else, announced on many occasions that
15 somebody is supposedly dead, including location of the
16 death, or without that including the time, or without
17 that, for many, many different reasons, which I will
18 obviously not enter into now. But I do not think that
19 a page from a Croatian newspaper with such
20 announcements has any probative value, because if such
21 person was dead -- we have heard the testimony the
22 citizens at that time were provided with so-called
23 unique registering numbers of the citizen and
24 appropriate numbers that authorities could search by
25 computer through the official books and find out
1 whether somebody passed away or whether somebody
2 survived. But if that is the information which we will
3 enter into the case, then probably we will have to show
4 you, through the Defence case, just merely as a matter
5 of example, that such things are simply not reliable.
6 Thank you, Your Honour.
7 JUDGE BENNOUNA: I have a question to
8 Mr. Scott just about the usefulness of -- what use are
9 you going to make with these articles? Are you going
10 to rely on these articles somewhere, or what is your
11 aim in asking the Chamber to admit these newspaper
12 articles in the evidence? Because this can help us,
14 MR. SCOTT: Thank you, Your Honour.
15 To answer the Court's question, we would
16 expect to rely on them, to various extents, as public
17 statements by some, in many instances, senior public
18 officials of places like the State of Croatia, which we
19 think is corroborated by other evidence in the case. I
20 don't think any of us would expect the Court to base a
21 ruling, in its entirety, on a press statement. But to
22 the extent the Court, based on the extensive evidence
23 you've heard over the past 11 months, is able to
24 accept -- to review these media materials in a way
25 that, whether they are corroborated or consistent with
1 the other evidence the Court has heard or not, are they
2 consistent with ECMM assessments, are they consistent
3 with what BritBat and UNPROFOR were saying, are they
4 consistent with what other witnesses have said, the
5 Court is in a perfect position to assess the weight
6 that should be given to these articles. They are no
7 different, again, than the numerous meeting material
8 that the Court has accepted before. All the objections
9 go to weight.
10 As to other issues, Your Honour, there is not
11 new material and it is not fair to say that this is yet
12 another new set of materials. These materials were
13 provided last fall. They've been in the Defence
14 possession for a long, long time.
15 As to translation issues, Your Honour, the
16 only thing we can commit to that, as we've committed
17 before -- and we understand the Court's ruling on other
18 exhibits -- is that we fully understand that
19 ultimately, and before the Court can consider these
20 documents for purposes of judgement, they will have to
21 be translated. We fully understand that, and we will
22 translate them at the earliest time. I would think
23 they could be certainly translated by early in the
24 Defence case. The Defence will have ample opportunity
25 to meet this evidence, ample opportunity, and we think
1 the objections go to weight and it should be admitted,
2 Your Honours.
3 JUDGE MAY: Thank you.
4 [Trial Chamber deliberates]
5 JUDGE MAY: I deal first with the single
6 exhibits; 274, 281, 729 are all matters which are
7 objected to, but the objections go to the weight, as
8 we've often said before. They will be admitted.
9 Similarly, 943.3 and 134, where there is no objection,
10 they will be admitted.
11 The other two documents: 606, it's said, has
12 not been provided; and 1220.2, it's said, there's no
13 translation. Those documents will only be admitted if
14 they have been provided and there is a translation
15 available. If neither of those criteria are met, why
16 then, they won't be admitted.
17 MR. SAYERS: Mr. President --
18 JUDGE MAY: I haven't finished.
19 The other application is in relation to 2817,
20 the press materials. We have had to make a judgement
21 about this.
22 It seems that this evidence suffers from a
23 number of drawbacks, if I can put it that way. First
24 of all, the probative value, it may be, of a press
25 article is, on occasion, open to question, and we are
1 particularly concerned as to whether this has any real
2 probative value. Secondly, there are the problems of
3 translation, which are real ones. It means that the
4 Defence are not in a position really to deal with these
5 articles without a translation being provided. We are
6 not satisfied that the death notices, the obituaries,
7 have any real probative value, and of course if only
8 extracts are translated and not the whole document,
9 there are real difficulties both for the Defence and,
10 of course, for the Tribunal.
11 We are not prepared to admit these documents
12 at this stage. If they become relevant during the
13 course of the Defence case, of course, they can be put
14 to witnesses or, indeed, they can be introduced during
15 the case in rebuttal. But at this stage, because of
16 those variety of reasons, we shan't admit 2817.
17 MR. SAYERS: Mr. President, my apologies for
18 interrupting you. I just wanted to point out that with
19 respect to Exhibit 606, it was not our position that
20 this document had not been provided. I simply do not
21 know whether it has been provided, because it is not
22 listed on the summary of outstanding exhibits that we
23 were given by the Prosecution today. But assuming that
24 it requires a translation and a translation is
25 provided, obviously we would have no objection to it.
1 JUDGE MAY: Very well.
2 That brings us finally to the --
3 Mr. Lopez-Terres.
4 MR. LOPEZ-TERRES: [Interpretation] If you
5 will allow me, Mr. President.
6 We began the hearing this morning raising the
7 question of the international armed conflict, referring
8 to a document which was, according to the Defence,
9 redacted, and you asked for information on that point.
10 I am prepared to do so, if you want me to. I've got
11 the document with me.
12 JUDGE MAY: Yes. What is the position,
14 MR. LOPEZ-TERRES: [Interpretation] The
15 document is the one which was referenced Z2436. It's a
16 report dated 6 August 1993, and it comes from the Human
17 Rights Centre of the United Nations in Zagreb.
18 The document is being produced as we have
19 it. No redaction was done by us. But I would like to
20 point out that the document has five pages, and it says
21 on the first page that there are five pages. It's also
22 indicated, at the bottom of the last paragraph of that
23 document on the first page, that the drafter did not
24 attach some parts of the report in order to avoid
25 revealing the identity of its source. So this comes
1 right from reading the document and shows us that some
2 information is not there, but the report is complete
3 and it's in the state that we received it.
4 JUDGE MAY: Yes. Thank you,
5 Mr. Lopez-Terres. That -- unless, Mr. Sayers, you want
6 to say something about that particular document, I mean
7 the explanation. It's one thing if it's redacted by
8 the Prosecutor, but it's the document as they've
9 received it. It doesn't seem to me that they can do
10 much better than that.
11 MR. SAYERS: I don't think it bears any
12 further attention, Your Honour.
13 JUDGE MAY: Thank you. The matter will be
15 Now, it's one oclock. We are really close to the
16 end of the matters. There are just one or two
17 housekeeping matters which we have to consider, and the
18 Defence want to raise something with us.
19 MR. SAYERS: Three short matters ex parte.
20 It would not take more than five minutes in total, Your
22 JUDGE MAY: Very well. Let me just deal,
23 Mr. Scott, with the housekeeping matters.
24 First of all, the transcripts. Now, we
25 understand that they've been marked up by the
1 Prosecution and they are with the Defence. Is that
3 MR. SCOTT: Some, as Mr. Nice I think has
4 been indicating, Your Honour, some have been marked. I
5 can't say that they've all been marked yet.
6 Admittedly, we've all been busy these last couple of
7 weeks, and some of us have been marking transcripts
8 when we had a few extra minutes to do it ourselves.
9 But I would expect that they could all be finished in
10 the week ahead, given the additional time to devote to
12 JUDGE MAY: Yes, right. So that there's no
13 doubt about it, perhaps you could do it within a week.
14 MR. SCOTT: Yes.
15 JUDGE MAY: Within the week, because we need
16 to start work on them ourselves.
17 MR. SCOTT: Fair enough.
18 JUDGE MAY: Yes, Mr. Kovacic.
19 MR. KOVACIC: Your Honour, I think that you
20 just raised an additional question. We should need
21 probably -- I'm talking about merely technical reasons
22 in order to avoid the later problems. We should have
23 some kind of list index of the transcripts involved,
24 and most of those witnesses in that manner tendered in
25 this case should get some pseudonym from this case.
1 JUDGE MAY: Well, that is a point which I --
2 MR. KOVACIC: I'm sorry.
3 JUDGE MAY: No, no, you're quite right to
4 raise it, Mr. Kovacic.
5 MR. KOVACIC: And if I may --
6 JUDGE MAY: Yes, let's deal with that point
7 now while it's still being considered.
8 Some of the witnesses, Mr. Scott, it's right
9 should have pseudonyms.
10 MR. SCOTT: Yes, Your Honour.
11 JUDGE MAY: Where they had pseudonyms before,
12 unless there's any objection, they should have them
13 again. I'll be informed of what a suitable pseudonym
14 for a transcript is. "T1", "T2", "T3" is the
16 MR. SCOTT: That would be possible, and I'm
17 literally thinking about this for the first time as I
18 stand here. It might be easier reference, in referring
19 to the Blaskic transcripts, just to simply keep the
20 existing designation in those and make some indication,
21 "/B" for Blaskic, or "/K" for Kupreskic, or something,
22 and then if someone knows they are talking about
23 Witness NN from the Blaskic case, it's still "NN." As
24 I said, I'm --
25 JUDGE MAY: We needn't rule on this now, but
1 provided it doesn't confuse the witnesses in this
3 MR. SCOTT: That's the issue, yes.
4 JUDGE MAY: Well, some suitable form of
5 pseudonyming should be found.
6 MR. SCOTT: Yes, Your Honour.
7 JUDGE MAY: And, indeed, an index. I imagine
8 there will be. An index should be prepared, indicating
9 the witnesses whose transcripts have been admitted,
10 together with their pseudonyms and paginated in some
12 MR. SCOTT: Yes, Your Honour. We appreciate
13 that, and the points are obviously well taken.
14 JUDGE MAY: Yes, and in binders, please.
15 Yes. Now, when do the Defence think that
16 they might be able to add any comments to the
17 transcripts, or would you rather simply leave it, leave
18 it be and leave it for comment? It may be simpler,
19 given the time constraints, for you to simply comment
20 on the transcripts in due course.
21 MR. SAYERS: It may be, Your Honour. But
22 just thinking out loud, it might be useful for us to
23 supply the particular parts upon which we would rely in
24 due course, and I can't say exactly when that would be
25 because we have some pretty substantial --
1 JUDGE MAY: The answer is this: that we will
2 receive the Prosecution transcripts, marked up,
3 indicating the parts on which they rely, and the
4 Defence can deal with it in whatever way they think
5 fit. It may be appropriate, during the Defence case,
6 for you to produce those parts upon which you rely.
7 MR. SAYERS: That's appropriate.
8 But let me say just one thing on this, Your
9 Honour. We're concerned that there's a little bit of a
10 moving target here. We've got a very short period of
11 time within which to prepare a fairly substantial
12 document, and we really don't know what the, you know,
13 the final state of the evidence is. And I frankly am
14 at a loss to know how to assess that. If we --
15 JUDGE MAY: You now should know what's been
16 admitted and what hasn't. Have you the transcripts
17 which have been admitted?
18 MR. SAYERS: Yes.
19 JUDGE MAY: So you've got the evidence, and
20 you should have all the exhibits.
21 MR. SAYERS: Except for the translations,
22 which are still to be provided, and that's -- might we
23 suggest -- I don't know that there's a substantial
24 number of translations that are outstanding. Might we
25 suggest that a deadline be set for them, you know, by
1 Monday or Tuesday, and that maybe our one week to do
2 the motion for judgement of acquittal runs from that
4 JUDGE MAY: We're concerned not to let the
5 timetable slip. When can we expect any outstanding
6 translations? I know there are translation problems,
7 but this is a serious matter.
8 MR. SCOTT: Your Honour, I'm afraid the
9 honest answer to that is I can't begin to anticipate.
10 As you know, those resources are entirely outside of
11 our control. We have a number of matters pending. We
12 have asked and we have submitted translation requests,
13 but I think it would be disingenuous for me to stand
14 here and try to give you some prediction. I don't
15 know, without talking to them and asking.
16 JUDGE MAY: The simplest course may be this:
17 that if you are going to rely on any untranslated
18 documents in your submissions, then they will have to
19 be translated. If you're not going to rely on any
20 untranslated documents, then the matter may not be so
22 If, Mr. Sayers, you come across documents
23 which you need for the purposes of your submissions,
24 then you can refer the matter to us in writing while
25 we're not sitting, and we'll deal with it as best we
2 MR. SAYERS: Could I raise one more -- I hate
3 to be the -- well, it's on the international armed
4 conflict issue.
5 The Court has requested, in its ruling of
6 March the 8th, submissions from the Prosecution within
7 two weeks, and then requested submissions from us two
8 weeks after that, and we're pleased to make
9 submissions. But it's difficult for me to see exactly
10 what we would be responding to without introducing our
11 own evidence on the subject. Did the Court have in
12 mind us highlighting particular issues which would be
13 disputed and particular issues which would be --
14 [Trial Chamber confers]
15 JUDGE MAY: Yes. If it wasn't clear, it
16 should be, that what the Trial Chamber wants is the
17 matters at this stage that are in dispute, what it is
18 you dispute about their submissions; not your positive
19 case, of course.
20 MR. SAYERS: That will be no problem, Your
21 Honour, and thank you for clarifying that.
22 [Trial Chamber confers]
23 JUDGE MAY: Mr. Scott, the other outstanding
24 matters which the Chamber needs are the village
25 binders, in their final form, and the final list of
1 exhibits. Admittedly, that will have to reflect our
2 rulings today. Is there any reason why those should
3 not be with the Trial Chamber within seven days?
4 MR. SCOTT: Subject to Ms. Verhaag, Your
5 Honour, I can't see why that shouldn't be doable by the
6 end of next week.
7 JUDGE MAY: Yes. I mean the important point
8 is we have it and the Defence have it in order to deal
9 with any submissions that are made.
10 MR. SCOTT: I understand, Your Honour.
11 JUDGE MAY: So the order will be seven days.
12 MR. SCOTT: Your Honour, I'm sorry, if the
13 Court will allow me just three final housekeeping
14 matters, if you will, from the Prosecution side.
15 First off, Your Honour, as to the marking of
16 the transcripts, I feel compelled to tell the Court, so
17 there is no misunderstanding, in marking some of the
18 transcripts to date, when you get to a village witness
19 whose transcript may be 40 pages in direct and it's all
20 about the attack on Han Ploca, for instance, I wouldn't
21 want the Court to think that you necessarily be more
22 selective than one would expect. I mean that witness
23 tells the story about the attack on Han Ploca, and it
24 isn't a question of saying, "Well, we want this one
25 line here and one line on the next page." I mean
1 obviously it's the story of that attack.
2 JUDGE MAY: A broad indication is
4 MR. SCOTT: Also, Your Honour -- I guess it's
5 a request to the Defence, if you will, through the
6 Court, or if the Court has any feelings on it, the
7 Court could give some guidance -- it would be helpful
8 to the Prosecution, Your Honour, if the Defence might
9 consider giving us their half time or motions for
10 judgement of acquittal in electronic form. If they
11 would consider doing that, it might assist making a
12 timely response.
13 JUDGE MAY: Any difficulty about that?
14 MR. SAYERS: I don't anticipate any
15 difficulty, but if there is, we'll promptly notify the
16 Chamber and the Prosecution.
17 JUDGE MAY: It's the Prosecution in
18 particular. It seems sensible.
19 MR. SCOTT: Finally, Your Honour, Mr. Nice
20 mentioned this yesterday, but I do feel -- this is very
21 important in Prosecution, and it's a matter of some
22 point to us. We will, if you will, rest our case with
23 the outstanding binding order litigation in mind.
24 We are fully of a mind, Your Honour, that if
25 the various parties, the Federation or Croatia, are in
1 fact prepared finally to be forthright in the
2 production of documents, that there could be very
3 important documents that would still be important to
4 bring to the Court's attention. To the extent we rest,
5 Your Honour, we rest subject to the ability to bring
6 those documents before the Court, documents which have
7 been asked now for some three-plus years. Thank you,
8 Your Honour.
9 JUDGE MAY: We understand that that is the
10 Prosecution case, that you're reserving your position
11 on any future documentation which may appear, and we
12 will consider that in due course and the appropriate
13 course to take.
14 MR. SCOTT: Thank you, Your Honour.
15 JUDGE MAY: We will hear the Defence ex parte
16 motion now. Meanwhile, as far as the general case is
17 concerned, it's adjourned until the next hearing, which
18 will be on the 30th of March, at the usual time, half
19 past 9. We will adjourn now.
20 --- Whereupon the hearing adjourned
21 at 1.15 p.m., to be reconvened on
22 Thursday, the 30th day of March, 2000,
23 at 9.30 a.m.