1 Thursday, 20 July 2000
2 [Closed session]
3 [The accused entered court]
4 --- Upon commencing at 9.42 a.m.
13 pages 22922-22954 redacted – closed session
7 --- Recess taken at 11.05 a.m.
8 --- On resuming at 11.35 a.m.
9 [Open session]
10 JUDGE MAY: Yes. Mr. Nice, we'll deal with any exhibits
11 outstanding from that last witness in the usual way.
12 We have various matters outstanding, I know, and what I propose is
13 that I'm going to make an order in respect of the exhibits now. We've had
14 a chance of looking at the objections, and indeed at the exhibits
15 themselves. There are a very large number at the moment, and obviously
16 time is going to have to be devoted to getting them into some sort of
17 order for us to rule.
18 So, the order that we're going to make is this: that, as a
19 general principle, we will treat the Defence exhibits in the same way as
20 we treated the outstanding Prosecution exhibits. That means, in general
21 terms, the illegible and the untranslated will not be admitted. Questions
22 of authenticity and lack of signature and the like will, on the whole, go
23 to weight and not admissibility.
24 And applying those principles, clearly further discussion is
25 needed. We note that some of the exhibits have already been exhibited,
1 quite a large number, and unless that is regulated in some way, either by
2 removing them or by cross-referring, we are going to be in a position of
3 confusion. That will have to be sorted out, but it can be done.
4 What we're going to rule is this: that the parties are to make
5 themselves available, from now on and during the recess, to discuss with
6 the legal officers and the registry all those matters which are still in
7 dispute, in order to identify the matters which are really in dispute,
8 having regard to our earlier rulings, and to bring some order into the
9 exhibits in terms of numbering and the like. We will then rule on the
10 matter in -- after the recess at some convenient time.
11 And I should say, Mr. Sayers, for that purpose, although you've
12 stopped calling evidence -- I understand you have no more witnesses to
14 MR. SAYERS: After the procedural matters are dealt with
15 today -- affidavits, transcripts, and the exhibits, which I think that
16 you've already dealt with -- I think it's our intention to rest our case,
17 Mr. President.
18 JUDGE MAY: Well, you needn't formally close it, because we'll
19 have other matters to deal with, such as these exhibits, and anything like
20 that can be ruled on, as I say, after the recess.
21 So we make that order in respect of the exhibits, unless there's
22 anything anybody wants to say about them. We'll deal with the other
23 matters which we've got to rule on.
24 MR. SAYERS: The only very minor points I would make with respect
25 to the exhibits, Your Honour, is you're absolutely right; some of them,
1 perhaps a significant number, have already been made exhibits. We hope
2 that the indices that we've provided to the Court have helped elucidate
4 Just a word of explanation and to use one example. The numerous
5 orders that were signed by Colonel Blaskic, which form the second volume
6 of our exhibits, many of those, of course, have been previously
7 exhibited. But in order to provide the Court with a, as far as we can
8 make it, a comprehensive list of all of the orders that he signed,
9 separately organised into combat orders, non-combat orders, disciplinary
10 orders, and so forth, we had hoped that everything would be put in --
11 THE INTERPRETER: Could the counsel slow down, please.
12 MR. SAYERS: That was why there was a certain amount of
13 duplication. It was simply really to help the Trial Chamber follow the
14 chronological flow of the documents.
15 With respect to translations, the situation in which we find
16 ourselves is this: We have submitted documents to the Translation Unit
17 beginning, I think, some number of weeks ago, but there's an extensive
18 backlog, apparently, as a result of requests made by the Prosecution for
19 translation of the exhibits that are coming from elsewhere, and that's one
20 of the problems that we face. But given the order that the Trial Chamber
21 proposes to enter, that would appear to obviate the necessity of any
22 difficulties in that regard. And those are the only points that I wish to
23 make, Mr. President. Thank you.
24 JUDGE MAY: Would it be convenient next to deal with the video --
25 THE INTERPRETER: Microphone for the President, please.
1 JUDGE MAY: Sorry. Would it be convenient to deal with the
2 videotape exhibits next, since we have them, we are dealing with
3 exhibits? We've got the objections. We're grateful to the Prosecution
4 for dealing with this matter expeditiously. There are no objections to
5 most of them.
6 Mr. Sayers, perhaps if you've got this document here, or
7 Mr. Browning, whoever is dealing with it.
8 MR. SAYERS: Yes, sir. With the Court's permission, Mr. Browning
9 has been dealing with the video exhibits and would like to address these
11 JUDGE MAY: Well, let's go through them, Mr. Browning. Number 2,
12 bad quality. Well, quality is a matter which -- something which we can
13 take account of, but it doesn't make the matter inadmissible, I would
15 The next one, number 3, there's apparently no translation. Can
16 you assist about that?
17 MR. BROWNING: Yes, Mr. President that is a broadcast and the
18 language of the broadcast is actually in Arabic. I believe it might be TV
19 Zenica. The significance of the video is the actual physical footage of
20 Commander Totic in the presence of Mujahedin who were masked, so the
21 commentary that's given by TV Zenica is not particularly significant.
22 What's significant is physically what happened to Commander Totic. And if
23 I could proceed, there's also an objection here in terms of relevance.
24 JUDGE MAY: Well, there's no need to address that.
25 MR. BROWNING: All right.
1 JUDGE MAY: Now, during the recess, perhaps you could look into
2 getting a transcript for that. It can't be beyond the resources of
3 Hunton & Williams to find someone to translate from Arabic into English.
4 MR. BROWNING: I will certainly check into that, but I'm not aware
5 of any of my partners or associates that are conversant but we will do our
7 JUDGE MAY: You've got offices all over the world, haven't you?
8 Yes. Well, the next one, no translation. I see the subject
9 matter. Again, if there is a transcript, it should be -- or comments,
10 they should be translated.
11 What about number 13? Number 13, again, no translation. Perhaps
12 you could look into that, again over the recess.
13 MR. BROWNING: Certainly, Your Honour.
14 JUDGE MAY: And then you have already submitted others for
15 translation. We'll come back to look at these after the recess then.
16 We'll admit those of which there's no objection. We'll admit the one
17 where the quality is apparently not very good. But the others we'll wait
18 for the translations.
19 MR. BROWNING: Thank you, Mr. President.
20 MR. NICE: Your Honour, can I just make one point?
21 JUDGE MAY: I'm sorry, yes.
22 MR. NICE: Can I make one point, please, and that is that where
23 we've said "shock effect," that is effectively raising an objection, or a
24 potential objection it seems, to ask that a lot of this material is being
25 advanced simply for its emotional effect.
1 We've been very cautious and restrained in any material that would
2 have an emotional effect on the listener and it doesn't seem to us helpful
3 to produce material that will have such an effect. And so far as item
4 three is concerned, I heard what Your Honour said about relevance, but the
5 Court will recall that circumstances of his arrest is not a matter in
6 issue, it's not being challenged. And, therefore, I can't see, frankly,
7 how this particular footage will do anything except burden the Chamber.
8 JUDGE MAY: It's all --
9 JUDGE ROBINSON: Mr. Nice, as far as the shock effect is
10 concerned, remember you are not before a jury.
11 MR. NICE: I appreciate that. On the other hand, if it -- if that
12 isn't the effect that it's designed to have, it seems to me to be candidly
13 totally irrelevant because this Prosecution from the word go has
14 acknowledged that were crimes on both sides and hasn't ever sought to say
16 JUDGE MAY: I think it's a matter which is necessary for us to
17 consider and at the moment, my view is this: That however things may have
18 started out, and whatever views that other Trial Chambers may have
19 expressed about a tu quoque argument, I think there is relevance in this
20 case as part of the story of what was happening elsewhere beyond those
21 villages in which there were attacks, as alleged, by the Bosnian Croats on
22 the Bosnian Muslims. And the fact that there were attacks the other way
23 around, I think, are inescapably part of this case. And, therefore, to
24 rule at this stage that such evidence is inadmissible would seem to be
1 MR. NICE: I don't disagree. On the contrary, I accept it. It's
2 in evidence. It's a question of how it's presented. I have nothing
3 further to say on that.
4 JUDGE MAY: Apart from those matters where translations are
5 required, the videos will be admitted. We will come back to the others
7 Now, we have to deal with the transcript witnesses and the
8 affidavits. I am in the parties' hands as to which the most convenient to
9 deal with is. Would it be more convenient to deal with the transcripts
11 MR. NICE: The transcripts. We've presented a tabulated document
12 this morning. I trust the interpreters have got copies. There are three
13 transcripts to whom very substantial objection is taken. In our
14 respectful submission, it would be wholly wrong for those transcripts to
15 be admitted.
16 Number one, Your Honour only has to look in light of the last or
17 more recent evidence that we've been hearing to the summary of what this
18 witness would say, namely that Kraljevic planned and executed the attack
19 on Stari Vitez entirely on his own without any help of others.
20 Our position on that is that she has to testify if her evidence is
21 to be in at all with full cross-examination. Apart from the shortcoming
22 of there being four pages of transcript, I think some more pages may have
23 been served this morning, but I haven't had a chance to look at them.
24 This is a central issue, and it simply can't be allowed in.
25 The Chamber will recall that with our transcript witnesses,
1 wherever one of the defendants was touched upon directly by way of
2 implication, the Chamber immediately indicated that its approach would be
3 different from its approach in relation to transcripts where they weren't
4 touched upon directly, and in either all or nearly all cases, the
5 transcripts were excluded.
6 Here, there is evidence, were it ever to be accepted, that would
7 go to exclude one of the defendants at least for an important part of the
8 evidence laid against him, and, therefore, that evidence would have to be
10 Number two, Palavra is subject to the same observation.
11 JUDGE MAY: We think we'll treat these as a whole rather than
12 doing them one at a time.
13 MR. SAYERS: One point I wish to raise, Your Honour. We're in
14 open session, and the third witness on the -- sorry, the fourth witness on
15 the Prosecution's sheet testified in closed session.
16 JUDGE MAY: It can be referred to as number four.
17 MR. NICE: Witness number two, similarly, is a witness whose
18 evidence can only be taken and weighed if the witness attends and is
19 cross-examined. His position as Commander of the 4th Military Police
20 Battalion is plainly a significant one. The Defence have twice announced
21 an intention to call this witness. Even this week he's cancelled or not
22 appeared. That, itself, not being without significance. He played a
23 major role in Central Bosnia and it would be the Prosecution's case that
24 he was deeply involved himself in what happened.
25 He was referred to by Blaskic as the most involved. He would be
12 Blank page inserted to ensure pagination corresponds between French and
13 English transcripts
1 only the second of two senior military officers to testify, military
2 police officers to testify, and the only one who will be capable of having
3 real memory and knowledge of events in the Lasva Valley. Vukovic left in
4 January 1993.
5 In Blaskic, his testimony and the cross-examination was directed
6 only about Blaskic. He wasn't asked about Kordic at all. And if he
7 didn't follow Blaskic's orders, we ask, rhetorically: Whose did he answer
8 to? And it would be those topics amongst others that he must be examined
9 on. We venture to suggest he, like the next witness but one, is simply a
10 witness far too important even to contemplate allowing in on the
11 transcript from another case where there was simply no full examination.
12 We respectfully remind the Court of its powers under Rule 98,
13 given that the Defence has twice announced an intention to call this
14 witness, it may be that the powers available to them of enforcement will
15 be a little less than the Court and the Court's order will be effective.
16 Witness 3, although it's of course a matter for the Tribunal, we
17 take the view, in the spirit of attempting to save time, which we know the
18 Court wants to pursue, or wants us to have as a general spirit, although
19 we don't accept his version of events, we acknowledge that he wasn't
20 physically present, and much of his testimony was hearsay and is in
21 contradiction to others but with all that in mind, we don't challenge the
22 admission of his transcript.
23 I think it would be safer to -- if I may respectfully suggest,
24 that we go into private session for number four because whatever I say
25 about the witness might be revealing.
1 Would that be acceptable to the Court?
2 JUDGE MAY: Yes.
3 MR. NICE: Even so, in private session, I shan't name him.
4 [Private session]
13 page 22966 redacted – private session
2 [Open session]
3 MR. NICE: I'm sorry, Your Honour. I thought you asked me to go
4 back a bit.
5 JUDGE MAY: No. Back into open session.
6 MR. NICE: Oh, sorry. Yes, of course. Sorry.
7 5, 6, and 7, we set out our position. Providing in each case the
8 entire transcript, including cross-examination and related exhibits, is
9 admitted, we don't object. That, I think, was the policy pursued in
10 relation to Prosecution transcripts that were admitted, and in each case
11 it's important that the cross-examination is there, but I imagine that
12 that point would itself not be contentious. We've attached to our
13 tabulated document the 23rd of March edition of Nacional, translated into
15 MR. SAYERS: Using the template suggested by the Prosecution,
16 generally, of course, to the extent we suggest that transcripts from prior
17 cases be introduced into this case, Your Honour, all of the
18 transcript -- direct examination, cross-examination, all of it -- should
19 be introduced. And to the extent that there's been any suggestion, and I
20 don't know where it came from, that we're only asking for four pages of
21 Witness DQ to be introduced, if I'm responsible for that error, then I
22 apologise. It's not intentional. We want her entire transcript.
23 Witness DQ is an interesting witness in some ways. It's a good
24 example of the importance of the repeated stress that we've laid upon the
25 need for access to all of the transcripts in all of the Lasva Valley
1 cases. And I'm bound to say that we came across Witness DQ's testimony
2 fortuitously as a result of a mistaken belief on my part that Witness DQ
3 was the mother of the children, eight children in -- some of the children
4 who were blown up in Vitez on the 10th of June, 1993, by an ABiH artillery
5 shell immediately before the Convoy of Joy. In fact, that witness was
6 Mira Garic, and that's the last witness whose transcript in the Blaskic
7 case we have asked the Court to admit, fairly short testimony.
1 I think I've covered Mira Garic, Mr. President. There does not
2 appear to be any objection. And one of the reasons we requested to use
3 her transcript is this lady went through a very traumatic personal
4 experience, and there's no good reason, in good conscience, to subject her
5 to have to go through that again.
6 The second witness on the Prosecution's sheet is Colonel Marinko
7 Palavra. Mr. President, this witness gave no less than 474 pages of
8 testimony in the Blaskic case. He was extensively and aggressively
9 cross-examined by Mr. Kehoe. We think this witness provides
10 significant -- not critical, but significant testimony regarding the chain
11 of command in the military police. You've already heard about that from
12 one of our witnesses, Colonel Zvonko Vukovic. You've already heard about
13 that from the Prosecution's witnesses. I do not believe that the chain of
14 command in the military police is an issue which is seriously contested by
15 any of the evidence in this case. Colonel Palavra replaced the notorious
16 Pasko Ljubicic as Commander of the 4th Battalion of the Military Police on
17 August 1st, 1993.
18 With respect to the contentions regarding questions addressed to
19 Mr. Kordic's status in relation to the military police, Your Honour, as
20 the Court well knows, that was a central issue in the Blaskic case.
21 Colonel Blaskic and his lawyers attempted to skirt, mitigate, or minimise
22 the liability of Colonel Blaskic for the crimes committed by soldiers by
23 pointing fingers at others. That was done throughout the Blaskic case,
24 Mr. Kordic being one of those individuals, a point which I'll elaborate
25 upon with respect to the next witness.
1 The contention that there was no incentive to ask questions about
2 Mr. Kordic of this significant witness is absolutely belied by the 474
3 pages of his transcript. And it is noteworthy to stress that he was asked
4 extensively, as you might expect, about the chain of command in the
5 military police, and he was absolutely clear on the subject.
6 The most responsible individual in the zone of responsibility was
7 the Commander of the Operative Zone, Colonel Blaskic. In fact, it was
8 Colonel Blaskic who appointed him, Colonel Blaskic who first met him and
9 said that he was doing an extremely responsible job, and Colonel Blaskic
10 who congratulated him on his new appointment and stressed that he had
11 important functions to fulfil.
12 He described the organisational structure of the military police
13 and the chain of command in detail and he also stated that the
14 headquarters of the military police was subjugated to the Command of the
15 Operative Zone. So any contention that he wasn't questioned extensively
16 on the chain of command is simply not the case.
17 This gentleman is currently a colonel, serving with the Ministry
18 of Defence, I believe, of the Federation, and he is the head of military
19 police for the Federation. His testimony is important and the Trial Court
20 ought to receive it.
21 There are two ways that we would suggest that the Court receive
22 this testimony: Either his transcript from the Blaskic case or the Court
23 could summon him itself under Rule 98, if it feels that there's any lacuna
24 in the 474 pages of his testimony, but we do not think that that is
1 With respect to the third witness on the Prosecution's table, I
2 don't believe there's any objection if the entire transcript comes in.
3 Therefore, there's no point in discussing that any further.
4 If we could go into private session for a few minutes to discuss
5 the fourth witness.
6 [Private session]
13 page 22972 redacted – private session
15 [Open session]
16 MR. SAYERS: There does not appear to be any other objection --
17 JUDGE MAY: Just one moment.
18 [Trial Chamber deliberates]
19 JUDGE MAY: Yes. Well, we've had a chance to consider the
20 position, Mr. Sayers, and we would be minded to follow the suggestion.
21 Are we in open session? Yes. We are minded to follow this suggestion
22 that in relation to Colonel Palavra, that as both sides have suggested, we
23 summon him. The Court will do that.
24 In relation to witness number four, you suggest that we summon
25 him. It seems the same principle should apply, and so we are minded to
1 summon him. Unless there's anything more you want to say, the remaining
2 witnesses, I think, are all agreed subject to the entire transcripts being
3 admitted. We will admit the entire transcripts.
4 That leaves Witness DQ. We've considered the position in relation
5 to that, and we think that she is a witness who doesn't come in the
6 category of one who necessarily should be cross-examined and, therefore,
7 we will admit her evidence.
8 Now, that being so, I think the responsibility is yours to get us
9 a binder with these transcripts in. Witness DQ can be numbered TW32 or
10 whatever the next number is, I think it's in that sort of range. The
11 others are not subject to the -- the others, I should say, to make it
12 plain, they are Miroslav Pejcinovic --
13 MR. SAYERS: Mr. President, sorry to interrupt, but one of the
14 other witnesses testified in closed session, number five.
15 JUDGE MAY: Number five. Number five, number six and number
16 seven, all those will be admitted, but it's for you to produce binders
17 with those documents in, in a suitable form so that we can follow what's
18 going on, divided each from the other with an index.
19 MR. SAYERS: We've actually submitted the transcripts of all of
20 the testimony already to the Court. Could I just suggest this: It might
21 be helpful to the Court if we can prepare a separate document that just
22 highlights the specific pages and line numbers to which we'd like to draw
23 particular attention of the Court.
24 JUDGE MAY: If we send back what we have to you, and you can then
25 prepare it in a binder.
1 MR. SAYERS: Yes.
2 JUDGE MAY: Not loose leaf, if you please.
3 MR. SAYERS: Yes, sir.
4 JUDGE MAY: Thank you very much. That, I think, brings us to the
5 affidavit evidence.
6 MR. NICE: We have prepared the usual chart. We object to numbers
7 one and two and not to the balance subject --
8 JUDGE MAY: Let us get that. We have a great deal of paper here.
9 Before we begin, let me see if we've got everything. The original
10 affidavits are numbers 31 to 35, if I'm right, Krizanac, Mrlic,
11 Gvozdenovic, Pesa and Pojavnik. They were five which were in support of
12 various witnesses. And then since then, we've had submitted affidavits,
13 character witness, and family information affidavits. Perhaps it might be
14 convenient if we turn to those first.
15 MR. NICE: My oversight, I have omitted to bring them in, we
16 haven't had enough time to focus on them. But we discussed it briefly
17 yesterday and reminded ourselves that, I think in another case in which
18 Your Honour was involved, there was a policy of having one -- or a
19 practice of having one live witness as to character and others to come in
20 by some form of formal statement. Knowing the Chamber's concern to save
21 time, without, in any sense, acknowledging the accuracy of this material,
22 we would invite the Chamber to take the same course. Alternatively, if
23 it's content to say that there's already character evidence in, just to
24 let all the other evidence in. It's very much on the basis that we don't
25 necessarily accept it, of course, we'd rather ask these witnesses
2 JUDGE MAY: Are you still maintaining that Mr. Kordic was the
3 cousin of Mr. Boban?
4 MR. NICE: No. As for that particular one which I remember, one
5 would still want to know how the particular rumour circulated because it
6 was obviously widespread from what else underlay it. One would want to
7 inquire into it, but it's hardly matters of such significance that the
8 Chamber will regard that as worth bringing people here for, I would have
9 thought. So that's our suggestion that, at most, one and the rest
10 affidavits, or if the Chamber thinks it's got enough evidence of character
11 already from various people who have spoken about Kordic, subject to our
12 reservations and to save time, let it in.
13 [Trial Chamber deliberates]
14 JUDGE MAY: We will admit the character and family witnesses,
15 namely the affidavits of Sabuheta Tuko, Mustafa Tapic, Pero Kordic, Ljubo
16 Boban. Those four affidavits will be admitted and added to the list.
17 MR. NICE: Dealing with the other affidavits if I can,
18 collectively. First of all, we object only to two, subject to our general
19 objection to affidavits by which, of course, we reserve our position. But
20 we don't object that starting at the end to the last one, two, three, we
21 object to the first two.
22 So far as the first one is concerned.
23 JUDGE MAY: Let me just make a note.
24 JUDGE MAY: We'll begin with Mr. Krizanac then.
25 MR. NICE: Yes. You'll probably remember a little bit about this
1 when I remind you. This was a witness who was called on, I think a Monday
2 morning. And --
3 THE INTERPRETER: Excuse me, could the interpreters be provided
4 with copies of the documents that were just circulated?
5 JUDGE MAY: Could the interpreters have copies?
6 MR. NICE: I'm so sorry that they haven't.
7 THE INTERPRETER: The French booth only.
8 MR. NICE: There is only one required, I think, for the French
10 Before we come to the content, I think I'll pick up where I was.
11 This witness was called on Monday morning first thing, and we were
12 presented in court, minutes before -- sorry, Tuesday I'm told, Tuesday.
13 We were presented in court first thing on our desks with the affidavit.
14 Ms. Somers, who was dealing with this witness, drew to your
15 attention that she had had no opportunity to consider the affidavit before
16 she was being required to cross-examine the witness and made it clear that
17 her cross-examination really couldn't take account of it.
18 Now, in general, that has been unsatisfactory and unattractive
19 practice, particularly given that the Defence have taken this Chamber to
20 appeal on the basis that the very strictest interpretation of the
21 provisions has to apply for any affidavit. And those provisions, we know,
22 are aimed at allowing or enabling the cross-examining party to
23 cross-examine the live witness on material contained in an affidavit
24 served ahead of the live evidence.
25 So it is deeply unsatisfactory and, indeed on the Defence's own
1 approach to the Rules, simply wrong to present us, minutes before the live
2 witness, with an affidavit. We've actually put up with it as we have with
3 many other things in order to avoid conflict and to get this case going
4 and forward. However, on this particular affidavit, as Ms. Somers was
5 about to tell the Court but the Court was understandably concerned to hear
6 the evidence, on this particular affidavit things are rather more stark.
7 Not only was the affidavit signed on the previous Friday, but in
8 exchange of correspondence between the parties over the weekend, they were
9 specifically requesting for affidavits in support, as I recall, and it was
10 revealed that -- I think it was revealed that this affidavit was ready and
11 they simply declined to provide an affidavit in advance when they could
12 and should have done. We didn't cross-examine him on the content of the
13 affidavit and it would simply be wrong to allow it in now.
14 As to what bits are covered by what bit of evidence, we've set it
15 out in the usual way, but there was no excuse for not providing us with
16 this document in adequate time for Ms. Somers to prepare. She didn't, and
17 she didn't cross-examine on the basis of it.
18 MR. SAYERS: The particular argument that we've just heard was not
19 forecast in the paper that you have, but if I might just hand up the faxed
20 affidavit, it will show the Court when we received it. It was actually
21 received by our office on July 3rd, 2000, signed and we turned it over to
22 the Prosecution the very next morning.
23 JUDGE MAY: We will accept that you did that.
24 MR. SAYERS: The -- if I might address the specific objections
25 that are made, the affidavit generally corroborates the testimony of
1 Stjepan Neimarevic that was difficult given on July 4th. The witness
2 being the current guardian of the Guca Gora monastery. The principle
3 objection that I can see is to number ten, number ten on the Prosecution
5 According to the summary here, number ten was not covered with Mr.
6 Neimarevic, that 20.000 Croats fled from Travnik in June of 1993, 300
7 killed, 1.000 wounded and so forth. Actually, if you take a look at Mr.
8 Neimarevic's testimony at page 22009, he covered that point specifically.
9 The question was: "Would it be too much to say that 20.000 Croats were
10 driven out?" Answer: "It was at least 20.000."
11 So Mr. Neimarevic did testify about all of this. The affidavit is
12 broadly corroborative of fairly general matters. It does not, in any
13 sense, concern matters of centrality such as one of the members of the
14 Trial Chamber has observed, and we would suggest, although we are not
15 opposed to bringing along this witness if absolutely necessary, he would
16 simply say what he said in his affidavit, and that would simply duplicate
17 Mr. Neimarevic's testimony.
18 But if the Court wants, we can bring him along if it feels it is
20 MR. NICE: On this occasion, can I reply to two points? As to
21 paragraph ten, the 20.000 Croats may have been covered, as I understand
22 it, the balance is not. And as to the dating of the document, the
23 affidavit was dated the 30th of June, and the Defence provided, whether
24 intentionally or otherwise, the document, I think, over the weekend
25 -- tabulated document which revealed that they were aware, over the
1 weekend, the affidavit was already, I think, prepared.
2 [Trial Chamber deliberates]
3 JUDGE MAY: We've considered this matter. Normally, we do not
4 insist upon the calling of witnesses dealing with background matters.
5 However, there are controversial matters in this evidence and we bear in
6 mind that the Prosecution were taken by surprise by it and didn't have the
7 opportunity of cross-examining the original witness in the way that they
8 would have done had they had the document before, and in those
9 circumstances, we shan't admit this affidavit. We shall say the witness
10 is to come for cross-examination.
11 At some stage, it will be necessary to consider when it's
12 convenient during the course of the case for the co-accused to fit in such
13 evidence, but that can be done by agreement.
14 MR. SAYERS: We will make inquiries, Mr. President. Thank you.
15 JUDGE MAY: Yes, there are in fact two witnesses, I think, two
16 other witnesses, affidavit witnesses I have in mind, Stipac, Ivo Stipac
17 and Ivo Brnada, neither of whom have yet come. Now, clearly, they should
18 come or their affidavits won't be admitted.
19 MR. SAYERS: I think the affidavits were not admitted and the
20 Court required the attendance of the witnesses. We'll review the position
21 and let the Court know what the -- what our approach is.
22 JUDGE MAY: Very well. The next witness is.
23 MR. NICE: (redacted)
3 JUDGE MAY: Is this the incident in number three.
4 MR. NICE: That's right, yes. He gave the name --
5 JUDGE MAY: We've heard evidence about this and cross-examination
6 about it.
7 MR. NICE: But, in fact, it's given very lightly and this is a
8 level of detail which is itself built on hearsay and, in our respectful
9 submission, simply won't help.
10 JUDGE MAY: A very peripheral matter.
11 MR. NICE: Exactly. It's really more irrelevant than anything but
12 it simply doesn't help the Chamber.
13 JUDGE MAY: We will admit the affidavit.
14 [Trial Chamber confers]
15 JUDGE MAY: Mr. Nice, we received today some further motions, I
16 think, from the Kordic Defence. You may not yet have got them. If you
17 can let us have your responses within the next two weeks, we can deal with
18 them before the recess, that would be helpful. Unless there are any
19 further matters --
20 MR. NICE: There are two matters I want to raise, and it looks
21 like Mr. Sayers has something he wants to say.
22 JUDGE MAY: Mr. Sayers, was it about the motions?
23 MR. SAYERS: Could I suggest this, Your Honour, we would like to
24 suggest to the Court and request, if that's appropriate, a pre-rebuttal
25 and pre-rejoinder case conference, just for this reason. New documents
1 and new theories have been a daily development in this case and have
2 confronted us with a considerable challenge, something of a moving target,
3 so to speak. We are, I think, entitled to know what is the case that we
4 have to answer, and I think that observation has been made before and
5 we've done our best to do so.
6 It seems to me that the Court has already scheduled the rebuttal
7 and the rejoinder cases for the weeks of December 4th and December 11th,
8 respectively. It might make sense to have a conference that assigns firm
9 deadlines for the identification of witnesses to be called, the provision
10 of brief summaries of their testimony, provision of outlines, on both
12 And the only reason I make that observation is that December 4th
13 is five months from now. The Prosecution obviously has five months to
14 consider the evidence adduced by the Defence and put on a rebuttal case.
15 It seems to us fair to assign a deadline for the Prosecution to inform us
16 of what rebuttal evidence they intend to adduce so that we can make our
17 own inquiries and put on a smooth rejoinder case.
18 We're not suggesting that any unrealistic deadlines be imposed.
19 What I had thought would be, for example, the end of October to let us
20 know what -- or the third week in October to let us know what the rebuttal
21 case would be, and then perhaps a month later, or three weeks later, to
22 let the Prosecution know what our rejoinder case would be expected to be.
23 That way the Court would know, the parties would know, we would be able to
24 do the briefing with that in mind, and at that conference we could also
25 address any motions that are outstanding.
1 I know that there are going to be some motions that are
2 outstanding. One additional motion that we will make to preclude the
3 testimony of a witness that the Prosecution has already intimated to us
4 that it might attempt to call, but we did not adduce any evidence on that
5 subject and there is no rebuttal function to be served by that particular
6 witness. But matters of that type I think could be appropriately handled
7 at our pre-rebuttal and pre-rejoinder case conference.
8 JUDGE MAY: That's a perfectly sensible suggestion, if I may say.
9 The only question is a matter of timing. What I have in mind is this, and
10 it partly depends on the Cerkez case and how long it takes. But if it
11 were possible to finish that case earlier rather than later, we
12 should -- and I speak for myself -- but we would have in mind, I suspect,
13 trying to start the rebuttal case as soon as possible so that we don't
14 waste time.
15 The fact is that the other case, the Kolundzija case, is now fixed
16 for the 6th of November. That is a date which we will keep. And
17 therefore, to some extent this case has to fit round that case and it
18 can't start before then, but it would be a pity if we found ourselves in a
19 position of losing time because parties weren't ready. So now is the
20 opportunity to warn the Prosecution. We shall expect them to be on.
21 MR. NICE: Your Honour has already, on an earlier occasion,
22 mentioned the possibility of I think rebuttal evidence starting before
23 November. We have that in mind. As to any deadline, it's really
24 impossible to forecast a date by which we'll know our final position, not
25 least because of what's happening, as we all know, in Zagreb.
1 What I can say is that efforts are being made to identify what, if
2 any, material should be sought to be led in rebuttal, and as soon as we
3 identify any particular material, we'll tell the parties straight away.
4 We won't wait for, as it were, a date and a deadline. That wouldn't be
5 helpful. So as soon as I know I'm going to call someone, I'll serve a
6 notice -- or intend to call someone -- I'll serve a notice, as indeed I've
7 done already in relation to one other witness. That must be the witness
8 that Mr. Sayers is referring to, although I can't remember it.
9 There are two other --
10 JUDGE MAY: Well, before you get to that, clearly a conference, it
11 may not be on a particular day and it may be a moving conference --
12 MR. NICE: Yes.
13 JUDGE MAY: -- depending on events, but in September, when we come
14 back, we should have in mind that we should fix such a date so we can
15 discuss these matters.
16 MR. NICE: I respectfully agree. Indeed, I think it's very
17 sensible, because probably by a week or so into September we'll have a
18 clue from the Cerkez Defence what the total Cerkez timetable is likely to
19 be, which will guide us all, I think.
20 There are two other matters, I think, but maybe three, very
21 briefly to mention. One -- it may be my mistake for not understanding
22 Your Honour -- was the question of the exhibits in relation to the last
23 witness that I was asking to put in. I hadn't got right through to the
24 end of that, I think. I don't know if the Court intended that we should
25 deal with that today or --
1 JUDGE MAY: No. Give the Defence the opportunity to formulate
2 their objections.
3 MR. NICE: So be it. Come back and deal with that.
4 Second point, which can be dealt with in open session, fully open
5 session, is summaries of the Cerkez witnesses. I'm not sure how many, if
6 any, we've got so far. There are still four outstanding, I think, for the
7 period of time that they've given a witness list, and we really do need
8 this material.
9 I forecast -- I might be wrong -- that the Cerkez witnesses will
10 be at a higher rate per day than in the Kordic case. That makes the
11 difficulties of adequately preparing, to acknowledge or challenge -- to
12 accept or challenge what they say, makes the difficulties preparing for
13 that much more difficult, because you're going to have in each case to
14 deal with the same issues for more witnesses. So we really do need the
15 outstanding --
16 JUDGE MAY: You could let Mr. Mikulicic know what it is you're
17 looking for.
18 MR. NICE: Can we have a private session very briefly, if that's
19 convenient, for one other short matter that I haven't given the Defence
20 notice of it, only because I've forgotten. I keep forgetting. But
21 perhaps I can mention it now.
22 JUDGE MAY: Before we do, Mr. Mikulicic, they say there are four
23 summaries outstanding. Can we be assured that that will be in hand?
24 MR. MIKULICIC: [Interpretation] Yes, of course, Your Honours. We
25 shall do it the moment we finish preparing those summaries. Our witnesses
1 will be arriving in The Hague today, and after our interviews with those
2 witnesses, the summaries will be submitted to the Prosecution.
3 JUDGE MAY: Thank you. We'll go into private session.
4 [Private session]
13 page 22987 redacted – private session
11 --- Whereupon the hearing adjourned at 12.50 p.m.,
12 to be reconvened on Monday the 24th day of July
13 2000, at 9.30 a.m.