1 Wednesday, 22
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE MAY: Mr. Nice, we've had the usual shower of paper as we
6 came in. I'm going to have an instruction that the Registry or some other
7 competent body should establish at the end of this case how many pages of
8 documents have been produced during the course of it because the
9 International Community, as you know, is concerned about the length of
10 these trials and the slowness of the proceedings, and we feel that one of
11 the reasons is the sheer amount of paper which is being generated, and the
12 Tribunal has to look at this in a way to try to control it.
13 Now, no criticism intended of counsel here who are dealing with a
14 jurisprudence in a new jurisdiction, but we really must start looking into
15 the amount of paper.
16 I'm going to ask the Defence to provide us at some stage,
17 certainly not before their submissions because they've got too much else
18 on but when they've got the time, to let us know how many documents and
19 how many pages, if they can, of documents have been disclosed to them
20 during the course of the proceedings.
21 It may be, Mr. Sayers, you know the figure off the top of your
22 head, but I suspect a bit of research is needed.
23 MR. SAYERS: I can honestly assure the Trial Chamber that I do not
24 know the figure off the top of my head and we'll do our best to comply
25 with the Trial Chamber's request.
1 JUDGE MAY: Very well. We have now two witness statements in
2 front of us concerning the transcripts, I would guess.
3 MR. NICE: Yes.
4 JUDGE MAY: How long do you anticipate they might be in chief?
5 MR. NICE: I think pretty short, Your Honour. Mr. Scott will be
6 taking them, but I would have thought half an hour. Half an hour in chief
7 probably for one and I would have thought less for the other.
8 JUDGE MAY: We've not got long. I thought one could be quarter of
9 an hour, quite honestly, the first one who is in front of us, who is five
10 paragraphs. I can't believe she could take very long.
11 MR. NICE: Right.
12 JUDGE MAY: The other one very much the same, half an hour at the
14 Is it anticipated there would be very much in cross-examination of
15 these witnesses?
16 MR. NAUMOVSKI: [Interpretation] As far as we are concerned, Your
17 Honour, not very long. Not more than 20 minutes.
18 JUDGE MAY: Very well. Let's see if we can get through them by
19 the adjournment, if possible.
20 MR. NICE: Your Honour, we understood that Your Honour was
21 concerned to have the question of admissibility of the transcripts dealt
22 with first and thereafter to determine the question of the evidence. The
23 witnesses, I'll just check on their present location. I'd intended to
24 address issues about the admissibility of the documents generally because
25 I thought that was Your Honour's requirement.
1 JUDGE MAY: It was. It was. But since the witnesses are here and
2 since they've got to return, it seems sensible to hear them.
3 MR. NICE: Your Honour is very thoughtful of them. I'll just
4 check to see if they're in the building at the moment.
5 While that's being done, would it be convenient if I started the
6 process of identifying what seems to us to be the most critical and -- not
7 critical, the most valuable to you of the transcripts that have been
9 The evidential position -- the position is this so far as the
10 materials are concerned: Originally when these transcripts became
11 available to us, we provided full translations of the whole documents to
12 the Defence. It became clear that this was simply impractical as imposing
13 too large a burden on the translation department, and, therefore, what has
14 happened since is that passages of value have been identified and those
15 passages only have been translated, although, of course, the
16 transcriptions of the entire meetings have been made available to the
17 Defence in all cases, although I see that Mr. Sayers, in his original and
18 helpful response, was noting some deficiencies.
19 I think those deficiencies have now been made good and indeed the
20 paper that's been lodged with the Chamber this morning is, I think, simply
21 the latest and, I hope, final translations of those documents. Our
22 position on the transcripts, as the Chamber will have seen, is that they
23 are not of limited value, which might be overall one of the
24 representations of the Defence, but they are of significant value in a
25 number of respects, showing, in particular, the control of events in
1 Bosnia by Croatia and by its late President Tudjman directly; going to
2 show a lot directly about the real objectives, in particular, the
3 objectives of annexation of part of Bosnia to Croatian; showing the
4 involvement of the party and its true purpose; and also showing things
5 about individuals, including Kordic.
6 As a matter of context or historical context and the context of
7 this trial, the Chamber may remind itself that the first of the
8 transcripts that we've identified as capable of helping you from this
9 batch is dated the 8th of June of 1991. The Chamber has already heard of
10 a transcript dated the 27th of December of 1991 which did involve Kordic's
11 presence, that transcript being verified by the witness Kljuic.
12 The Chamber may have noted, if it's had an opportunity to consider
13 the schedule of summaries put in by the Prosecution, that Kordic doesn't
14 then appear present until a much later stage in these proceedings and it
15 may be that we would only -- if not proceedings, in the history -- and it
16 may be that we would only be asking for you to consider admitting one of
17 those later transcripts involving him. I say asking you to consider,
18 asking you to consider as a priority admitting one of those.
19 Still not knowing the precise position of the witness, can I then,
20 if Your Honour has the schedule that I believe you've been working from as
21 opposed to the more recent one served to reflect additional transcripts,
22 if one ...
23 JUDGE MAY: Can I just interrupt this. Can I just say that the
24 interpreters had difficulty yesterday apparently following and
25 interpreting. Their work was made more difficult by the fact that they
1 didn't have the document to which everybody was referring. So if there is
2 a spare copy of the schedule ...
3 MR. NICE: Your Honour, any shortcoming in the provision of
4 documents to the interpreters is a matter for which I can only apologise,
5 and I do. They have been provided with a schedule. I hope it's the one
6 that Your Honours are working from. If not, the schedules closely
8 JUDGE MAY: If you've distributed and everybody else has a new
9 schedule which I have had, let me have a copy from it and I will follow
10 from my original schedule.
11 MR. NICE: It's the one which has 283.3.
12 JUDGE MAY: Yes. The difficulty is that that we were given and
13 worked from an original document.
14 MR. NICE: Yes.
15 JUDGE MAY: And now there's apparently an amended one.
16 MR. NICE: I'm happy to work from the original document. We can
17 easily go and copy that again for the interpreters, and while they are
18 waiting for that to come their way, they can be confident that the revised
19 version is pretty much the same text until a later stage. If Your Honour
20 prefers to return to the first version, then I'll work happily from that
21 and we'll get a copy of that one to the interpreters.
22 JUDGE MAY: Yes.
23 MR. NICE: But we'll do that, I'll get that copied.
24 JUDGE MAY: Very well.
25 MR. NICE: May I say that the ones that we would highlight as
1 particularly important, it's about 10 or 12, and in each case I'll only --
2 because I know that the Court has already considered these -- this summary
3 of material, I'll be very brief in focussing why we say the particular
4 transcripts are of importance.
5 The first one is one on the 8th of June of 1991. It's pretty well
6 in the middle of the page where the true objective -- and this is a
7 meeting involving Tudjman and others. Right in the middle of the page,
8 "Absurd to return to a colonial creation," and makes it plain that,
9 "Croat Herzegovina restlessness is well understood." Then it goes on to
10 say, "If everything moves in a democratic fashion through mutual
11 agreement, that's fine, but if things move differently, we will have to be
12 ready to take decisions, Croat decisions just like those the Serb policy
13 has brought about." So that fits with entirely -- the rest of the quoted
14 passages do the same, but that fits entirely with the notion of forcing
15 new boundaries, imposing them by force, if necessary.
16 Your Honour, I'm not going to read every bit of these passages
17 out; it would be an insult to the Chamber if I did so. Now, Your Honour,
18 Mr. Sayers has been good enough to provide objections itemised. I think
19 the Chamber will accept, and I hope Mr. Sayers will, that they are
20 broadly, frequently, similar in form. I'm entirely in the Court's hands
21 as to whether it would be better to deal with these matters item by item
22 or deal with them compendiously. It might be compendiously would be as
23 appropriate as anything.
24 JUDGE MAY: Yes.
25 MR. NICE: The second one again, which follows the, if I can call
1 it this way, the Kljuic transcript, the next one is of the 8th of January
2 of 1992, and is again one that shows, it may be thought, that the Muslims
3 are not being given a choice in the matter.
4 Working from Your Honour's version, it's just about over halfway
5 down the page where President Tudjman, having been absent from the
6 meeting, rejoins and speaks of a confederal three-way structure for Bosnia
7 and Herzegovina, including the redrawing of municipal borders, and then
8 goes on -- I beg your pardon. He's absent at this part of the meeting.
9 This is in his absence. But those present speak of "humane resettlement,"
10 in quotation marks, "of minority populations," the confederal units having
11 stronger relations with Croatia.
12 Then, if one turns, the foot of the page, when President Tudjman
13 rejoins and hears a summary of what's happened, he notes, over the page,
14 that history has shown the need for resettlement from time to time.
15 I can then turn on -- omitting the next one on the 10th of March
16 and turning directly to the 17th of September. A lot of material there
17 but it's on the second sheet of Your Honour's schedule, and the last
18 paragraph where President Tudjman presents his conclusions which the
19 Bosnian Croat leaders were to understand and accept, the ideal solution
20 being a loose confederation, a federal system being unacceptable. And if
21 the confederal idea proved impossible, secession and annexation would be
22 the only acceptable option, and he deals on the banovina and so on.
23 Yes. And I'm reminded there'd already been reference to they'd
24 only keep what they took by force, in an earlier paragraph.
25 And interestingly enough, in light of the discussions that have
1 been in evidence about Herceg-Bosna, Bosnian Croats to emphasise aspects
2 of their institutions which affirm their statehood.
3 I'll just discover what the position about the witness is.
4 [Prosecution counsel confer]
5 MR. NICE: Your Honour, the witnesses are here and available.
6 We're entirely at the Court's disposal.
7 JUDGE MAY: Yes. We'll hear the witnesses now.
8 MR. NICE: Mr. Scott will take those. I'm grateful to the Court,
9 and I'm sorry for that hiccup in our administration and uncertainty.
10 [The witness entered court]
11 JUDGE MAY: Yes. Let the witness take the declaration. If you'd
12 like to read the declaration.
13 THE WITNESS: [Interpretation] I solemnly declare that I will speak
14 the truth, the whole truth, and nothing but the truth.
15 WITNESS: [redacted]
16 [Witness answered through interpreter]
13 Page 27422 redacted – Confidential Order to redact public transcript.
8 [Closed session]
13 Pages 27424 to 27465 redacted – in closed session
19 [Open session]
20 MR. NICE: Your Honour, I think, if it's convenient, I think I
21 just dealt with the meeting of the 17th of September of 1992.
22 JUDGE MAY: Yes.
23 MR. NICE: And the next two we would say are particularly
24 important; the 20th of January, which is on page 4 of the document Your
25 Honour is looking at, starting at the foot of that document but going over
1 to page 5, we'll see regular references, as in the middle of that block of
2 text or just below the middle of the block of text, to a witness in this
3 case, DJ, as he was, the witness whose name begins with an "A". And it's
4 worth noting that he acknowledges there that the Croatian people were
5 taking increasingly little part in the government of Bosnia-Herzegovina,
6 and the summary is to the effect that Tudjman was directing Croat policy
7 in these negotiations and his leadership role was unquestioned.
8 If we can then go to the next transcript for the 8th of March,
9 it's probably important just to make one amendment to the persons
10 attending on the left-hand side. Skopljak was also present, Pero
11 Skopljak, and that's important because, in the recent filing of the
12 Prosecution in relation to Exhibit 1367.1, there is recitation of passages
13 at this meeting recorded of what Skopljak said, but those passages,
14 although they have been translated, had not yet been supplied. The
15 argument, of course, being in part responsive to the Defence argument
16 submitted at the beginning of this week, and the translation's on its
17 way. So that that particular meeting, which might otherwise be to some
18 degree repetitive of matters already raised, may be important because it
19 sustains the argument that the Court can find - I don't suggest it looks
20 through it - at paragraphs 12 and 13 of our latest filing.
21 If I could take you then, missing some out as not of prime
22 importance, to the time of Stupni Do and the 22nd of October, which is on
23 page 8 of Your Honours' document, 22nd of October. And one can see
24 immediately the significance and great significance of this document for
25 international armed conflict in the second fresh paragraph, with the
1 introduction by the late president saying, "Several months ago, I told you
2 about the situation and gave the tasks to the Minister of Defence Susak
3 and Bobetko as regards our health and our engagement. I told them that
4 this was where the future borders of the Croatian state are being
5 resolved." He says, "The general political situation is such that few of
6 the international factors think that the union of Bosnia and Herzegovina
7 will survive." In regards to the Muslims, he notes, "Because of strategic
8 reasons, have to reach this agreement with them."
9 And then, more interestingly, over the page at the end of this
10 paragraph, an existing agreement with the man Abdic, of whom you've heard,
11 that if and when there is a split, western Bosnia will become an integral
12 part of Croatia. And I think -- although the rest of the block is all
13 interesting, I know the Court's had an opportunity to read it, and towards
14 the bottom of that same page on which the Court presently is, one can
15 see -- I'm sorry, I'm having to check things -- the late president
16 complaining about what Bobetko's done and how he wasn't being taken
17 seriously enough. So a very important document, in our submission.
18 Ms. Somers wants me to come back to the 15th of September and I
19 probably will, but I'll carry on in the scheme that I'm in at the moment.
20 The next one of importance is the following one. The earlier ones are
21 more important than the later, by and large. The 5th of November, this is
22 indeed the one at Vila Dalmacija. One can see that there is reference to
23 the negative impact of the massacre at Stupni Do in the first paragraph,
24 and there's knowledge of activities in Vares in the third paragraph. But
25 the Court may also find valuable from this passage, in the middle of the
1 page, reference to something that was explored in cross-examination where
2 the archbishop, who was present -- I beg your pardon, whose letter was
3 available expressing his lack of faith in Croatian politics and so on. So
4 that is part of the overall picture.
5 Over the page, the Court will find on page 11 of the document Your
6 Honour has, an account being presented at this meeting about Stupni Do and
7 about Rajic's special purpose unit going from Kiseljak and about the
8 operation. So this is a report right to the centre of Croatia of
9 something apparently particular to Bosnia-Herzegovina.
10 The following -- I hope I'm not going too fast for the Court or
11 for the interpreters. The following document, the 6th of November meeting
12 may have some particular value for the Chamber. If one looks at the third
13 line of the entry as the summary, Tudjman explicitly characterises the
14 conflict in Bosnia as the war for the borders of the Croatian state.
15 There's further reference to the man Abdic again. Yes. He emphasises he
16 wants to hang on to Central Bosnia, and then refers to the deal with
18 On the issue of control, on the top of Your Honours' page -- the
19 Chamber's page 12, Bobetko proposes an offensive to take Gornji Vakuf. He
20 also reminds Tudjman that he appointed Roso HVO commander and they
21 proposed various kinds of assistance for the HVO, with Tudjman saying they
22 can be generous as there will be no fighting in Croatia itself in the near
23 future and now we have to ensure the borders of Croatia, those future
24 borders of the Croatian state in Bosnia-Herzegovina.
25 Interestingly enough, this entry concludes -- the summary
1 concludes with a discussion of airlifting supplies to Central Bosnia, the
2 mention of using weapons of mass destruction, and Tudjman instructing them
3 to do everything necessary but not to use chemical weapons.
4 A very important record, in our submission to the Chamber.
5 The following one is also important, but as I say, by the time we
6 get through this, we've only got about four of the others that rank of a
7 similar importance, in case that should be of interest.
8 The meeting on the 23rd of November touches on similar topics.
9 Four lines down from the entry, we see the late president dealing with --
10 discussing the number, location, and performance of Croatian army units in
11 Bosnia and Herzegovina, especially in Gornji Vakuf and Prozor, as well as
12 HV helicopter assault and resupply missions. Tudjman describes measures
13 taken to conceal the HV's presence and to introduce HV members to
14 volunteer for service in Bosnia. It's critical of Bobetko, and recalls
15 that he personally ordered Roso to take over the command in Bosnia. The
16 Court will recall, at some stage, the evidence it's heard on that topic,
17 although I say no more about it in this setting than that.
18 On the Court's page 13, the meeting of the 28th of November, with
19 Boban and Susak present, is of very considerable importance for showing
20 the complete control that Croatia exercised over Boban, because in this
21 meeting he was effectively dismissed, told he had to step down and to
22 allow someone less compromised to take control.
23 The Court will see in the middle of that block of text a
24 description by Boban of Kordic's anger at Croats who refused to fight for
25 Kakanj, and when Boban pleads for his job, Tudjman authority remains --
1 Tudjman's authority remains clear.
2 At the foot of that entry, Tudjman retains the need for control
3 over Novi Travnik, Vitez, and Busovaca so that Bosnian-Croat territorial
4 unit would not be reduced to merely Western Herzegovina.
5 Now, I think we can, then, in the interests of economy, and as
6 Your Honour will see, made very substantial proposed reductions if and
7 insofar as the Court -- no. Well, the Court knows what I mean.
8 If you go over to the 13th of February, 1994 --
9 JUDGE MAY: I don't seem to have that.
10 MR. NICE: It's at page 18 of Your Honour's, I trust. They get
11 out of order slightly.
12 And those attending is revealed in the left-hand column. In the
13 first paragraph, of importance in light of some of the issues raised not
14 least with some of the experts, the discussants - a new word to me, but
15 never mind - the third line, those discussing the topic, I think, make
16 clear that they consider Herceg-Bosna to be a state in every sense of the
18 The next paragraph starts with Tudjman repeating it was his
19 decision that Boban should no longer lead the Bosnian Croat negotiating
20 teams and should step down, and indeed it is interesting that, at the foot
21 of that paragraph, when somebody raises a constitutional objection, it's
22 simply brushed aside.
23 Boban is then, in the next paragraph, blamed for his mistakes,
24 such as in respect of Mostar bridge, and Kordic, as a new vice-president,
25 is rejected as a possibility.
1 Yes. I'm grateful to Ms. Somers. Further up the page, after the
2 passage where -- in the middle of the page, the range of his authority is
3 such -- third line of the second paragraph. He also tells the gathered
4 Bosnian Croat leaders to direct a presidential council. That's the
5 measure of his control.
6 And this is interesting in light of a topic that was raised in
7 cross-examination. Towards the end of the meeting, a name reminds Boban
8 that he was vice-president for Sarajevo just as Kordic was for Central
9 Bosnia and Markovic for Herzegovina, and that features in one other of the
10 transcripts which we would propose to you of being of particular value,
11 and that is the one on the 11th of June, 1994, which is at Your Honours'
12 page 20.
13 On this occasion, Kordic is present. It's June 1994, so it's
14 obviously late, but, nevertheless, it is to the extent that it is
15 reflective of earlier history. And if you look in the middle, right in
16 the middle of this page, Kordic and several other speakers stressed the
17 need for the Herceg-Bosna leadership to follow the common Croatian policy
18 and the instructions issued by Zagreb. Akmadzic introduces himself as the
20 THE INTERPRETER: Could you slow down, please.
21 MR. NICE: Certainly. And I'm very sorry. Akmadzic introduces
22 himself as the vice-president, as all the party vice-presidents have
23 regional responsibilities. Then there's a reference to, at the foot of
24 that entry, Tudjman having defended the Lasva Valley at all cost.
25 There are two others that Ms. Somers reminds me, and it's been
1 difficult to deal with these in the time. One, I think, was the 13th of
2 September -- was at 15th September, 1993, and that Your Honours will find
3 on Your Honours' page 7, which starts off with the paragraph that deals
4 with the subordinate role taken towards Tudjman by Boban. And then, as
5 usual, discussing the relations with the Bosniaks, claiming that
6 Izetbegovic asks him if the Serbs go maybe it would be better for you
7 Croats to be independent so the Croatian Republic of Herceg-Bosna joins
8 Croatia, thinking that Izetbegovic would prefer not to share power and
9 would rather have a small state himself.
10 Then we have the following passage on relation to Praljak where,
11 after discussing the military situation, it's set out it would be
12 difficult to supply Zepce, Kiseljak, Vitez, and Vares and to reorientate
13 from fighting Serbs for a year, then to working with them against the
15 THE INTERPRETER: Would you please slow down.
16 MR. NICE: Yes. I'm sorry. And makes the point that they are
17 dependent on cooperation with the Serbs.
18 The other one that Ms. Somers wanted me to touch on, 22nd of
19 March, I think. If Your Honours would just give me one moment. Yes,
20 perhaps this is an important one, and if the Chamber would be good enough
21 to go to page 19.
22 This is the 22nd of March meeting, and in the middle of the block
23 of text, Akmadzic reports that --
24 MR. SAYERS: Mr. President, if I may, on page 19 of the version
25 that we have, there is no reference to a March the 22nd transcript.
1 JUDGE MAY: It's on the copy we have. It was number 23.
2 MR. SAYERS: Number 23 on ours, Your Honour, is May the 31st,
4 JUDGE MAY: Yes. That's the more recent one. Can you find it,
5 Mr. Nice, in the newer one?
6 MR. NICE: I think it got dropped from the newer version by
7 error. Indeed it did, because I marked my copy to that effect. It was on
8 page 19, number 23, of the one served at the end of last week, and I'm
9 only sorry it hasn't found its way, if it hasn't, to the Defence. I'm
10 confused about that. I don't understand how that's happened. I'll have
11 to check it.
12 May I, in any event, simply refer to what it does contain because
13 it speaks of Bosnian Muslims claiming that two-thirds of their Croats
14 favour Bosnian government instead of Herceg-Bosna and would insist on some
15 non-Herceg-Bosna Croats in the Federation government, to which Tudjman
16 gives a response which is set out there.
17 Your Honour, I'm grateful for the opportunity to identify what we
18 think are the most important of these transcripts. They are, in our
19 respectful submission, of very, very great weight in a number of ways. We
20 think all the transcripts could be helpful but we are mindful of the
21 understandable concern of all of us about material.
22 The Chamber will know, as a matter of fact, that there are,
23 elsewhere in these transcripts, meetings with both Lord Owen and
24 Izetbegovic which are all there because, if the Chamber takes the view
25 that some of these other topics are material, then the material is
1 certainly there to be adduced, but we've identified what we believe to be
2 the most valuable. Thank you.
3 MR. SAYERS: Mr. President. We would respectfully submit to the
4 Trial Chamber that the Prosecution has lost the wood for the trees and, in
5 fact, forests have been slaughtered to provide the paper that has surged
6 into this court on a daily basis. The four criteria that you outlined
7 yesterday, Mr. President, for admission of materials into evidence were
8 whether the materials were new. I don't know that there's been a
9 demonstration that these transcripts are new in the sense of being
10 responsive to requests for binding orders that have apparently been
11 obtained on an ex parte basis, I simply don't know that. But I would
12 point out that no representation, no showing has been made by the
13 Prosecution that these materials are new.
14 The second test was that these materials must not be cumulative or
15 repetitive. They're all cumulative and repetitive.
16 Third, it must be in the interest of justice in the sense of
17 being -- of relating to the core issues going to the guilt or innocence of
18 the accused. Now, as I understand it, the materials that have been
19 identified by the Prosecution, the transcripts, and please correct me if I
20 am wrong because it was a little difficult to follow, but only one of
21 these actually has Mr. Kordic speaking, and I think that that's in June of
22 1994, which is months after the period covered by the amended indictment.
23 If it were relevant to anything, which we submit that it's not, it
24 certainly doesn't go to the core issues involved in the case, which is the
25 guilt or the innocence of Mr. Kordic. What he said in the meeting of June
1 11th doesn't relate in any way to those issues.
2 And another issue on a general subject is obviously Rule 89(D).
3 Many of the people that assertedly spoke at these meetings are dead. For
4 example, Mr. Gojko Susak, Mr. Mate Boban and, of course, President Franjo
5 Tudjman. They're all dead. There's simply no way for Mr. Kordic to speak
6 to them to find out whether these views were accurately taken down or
7 whether there was any explanation for the views that they purportedly
8 suggested. That, we would suggest to the Court, at this extremely late
9 stage of the game, at the end of the case, and after the Defence has
10 rested their case, presents some serious, in fact, we submit insoluble
11 Rule 89 issues.
12 If I can just go down the list that we have: Number 1, 2, and 4
13 all fall into the same category. This is on the list that we have
14 submitted, annex 3 to our Zagreb materials response which, I might point
15 out, was filed within the time that the Court ordered, unlike Exhibits 1,
16 2, and 4. We did not get any transcripts from 1, 2, or 4 -- that's June
17 8, 1991 transcript, January 8, 1992 transcript, or the September 17th,
18 1992 transcript -- until the Croatian version of it was delivered to us on
19 November 13th.
20 You made some comment, Mr. President, about being daily showered
21 with paper. We have been receiving the same sanitary treatment, I regret
22 to say, and the first English translations of those documents were given
23 to us in our box this morning. So obviously, we haven't had a chance to
24 look at them. But clearly, there's no excuse for not providing those by
25 the date that the Court ordered, which was October 30th. These were
1 provided way beyond that and they are not -- we submit they should be
2 excluded for just that reason.
3 But if you want me to state our objections to each one of these as
4 far as I understand them based on the summary that was outlined by the
5 Prosecution, the first transcript looks like it was -- relates to a
6 meeting that doesn't involve Mr. Kordic, antedates the period covered by
7 the amended indictment and antedates the actual outbreak of war in
8 Bosnia-Herzegovina by almost a year.
9 One general point that I would like to make, Your Honour, is
10 this: Who is on trial here? Is it President Tudjman or is it Mr. Kordic,
11 at least from our perspective. President Tudjman is not on trial,
12 although one might be justified in forgetting that from time to time,
13 based on the presentations like the ones that we've heard today.
14 JUDGE ROBINSON: Mr. Sayers, there's something I'm not clear
15 about. Mr. Nice indicated that a lot of the transcripts that he's seeking
16 to adduce is relevant to the international armed conflict question. You
17 have said that your client was not present at some of these meetings, but
18 how is that relevant to this question?
19 MR. SAYERS: That's a perfectly legitimate point, Your Honour. I
20 absolutely concede that the Prosecution has raised international armed
21 conflict as an issue in this case. We would respectfully submit that the
22 summary of transcript number one, anyway, does not relate to international
23 armed conflict in any way. Now, there are some that do, concededly. For
24 example, if I can just flip through, if you will forgive me for just a
25 second --
1 JUDGE ROBINSON: Let me just get it clear. The point that you are
2 making about the presence of the accused at the meetings would not apply
3 to that.
4 MR. SAYERS: There are two completely separate objections, Your
5 Honour. Obviously, to the extent that these materials could be argued to
6 be relevant to some issue in the case or to some accused in the case, they
7 become potentially eligible for consideration for admission into evidence,
8 obviously, under Rule 89. Those are the normal rules. But the first
9 transcript doesn't relate to international armed conflict, and it doesn't
10 even mention Mr. Kordic. It seems to be sort of squirted into the record,
11 if I may use such an inelegant verb, or trying to be squirted into the
12 record merely as filler, as background, and we've been over that sort of
13 objection when the Prosecution vociferously objected to the sorts of
14 background materials that we suggested for admission into evidence. And
15 even at the close of our case, they were excluded with enthusiasm on the
16 grounds of being unnecessary. So that's the first one.
17 But also, if I may, Your Honour, relevance obviously becomes a ...
18 [Trial Chamber confers]
19 JUDGE MAY: Yes, Mr. Sayers.
20 MR. SAYERS: Thank you, Mr. President. Relevance is obviously the
21 key consideration, relevance and probative value under Rule 89. There's
22 no dispute about that. But one must consider the stage at which these
23 materials have appeared in great abundance, and the opportunity that
24 Mr. Kordic and perhaps Mr. Cerkez have to address the issues that are
25 raised in these documents, the time. Actually, just the time even to read
1 these things. There's thousands of pages of these documents, and that
2 alone raises a very serious consideration and an additional one which I
3 think it affects a lot of these documents. The consideration is this:
4 The Croatian original is very, very extensive, sometimes going on for
5 hundreds of hundreds of pages. What the Prosecution has done is select
6 pieces, and very small pieces, of some of these transcripts and prepared
7 selected English translations of them.
8 Now, I'm fully aware that we have members on our team who speak
9 Croatian, but unfortunately, I don't, and I simply don't have time to sit
10 down with my colleagues and have them translate for me what these
11 thousands of pages of documents in Croatian read. Simple considerations
12 of fairness surely dictate, and especially at this stage, that if the
13 Prosecution proposes to introduce bits and pieces of these transcripts
14 into evidence, then they should provide a complete translation of what
15 these transcripts supposedly say.
16 Now, going on to the second one, the meeting of January 8th, this
17 does not appear to relate to an international armed conflict in any way.
18 Mr. Kordic wasn't there. This is purportedly a record of discussions that
19 occurred long before the referendum on independence that was held in
20 Bosnia-Herzegovina when, as the evidence establishes, all sorts of
21 solutions for the future of Bosnia-Herzegovina were being discussed by a
22 wide variety of people, and we would take the position that this is
23 irrelevant and peripheral, cumulative, and not necessary.
24 The next one is September 17th of 1992. Again, Mr. Kordic not
25 present. Difficult to see how, in any way, this is relevant. Doesn't
1 relate to international armed conflict. It just appears to be cumulative,
2 Your Honours, even if it had been delivered to us on time, which it
4 Going on to the next one, the transcript of January the 20th,
5 1993, I cannot see how the proposed summary -- well, the second sentence,
6 I guess it could relate to one ...
7 In terms of the international armed conflict inquiry, as I
8 understand it from the Tadic Appeals Chamber decision, there really --
9 you can boil down the principles articulated in that decision to two.
10 There is a pervasive control over the armed forces in the country in which
11 the international armed conflict is supposed to -- or is alleged to exist
12 by the forces of another country? But more, and particularly, it is
13 really a local inquiry? The question is, in the area covered by the
14 particular indictment, are there forces of another country, armed forces
15 of another country involved, HV forces in Central Bosnia?
16 This case is not about Gornji Vakuf or Prozor, we would
17 respectfully submit to the Court. I think that that fiction has been
18 disrobed long ago, if I may say so. As the Court well knows, you have a
19 huge amended indictment in here that covers Zenica. It also covers
20 30 municipalities in Central Bosnia, but there's been virtually no
21 attention whatsoever paid to 22 of those 30 municipalities. Almost all of
22 the attention in this case has been focused on the Vitez-Novi
23 Travnik-Busovaca pocket and other municipalities in Central Bosnia.
24 That's the inquiry. Were there HV troops in Central Bosnia? Not further
25 south in areas that touch only tangentially, if at all, on this amended
1 indictment certainly insofar as Mr. Kordic is concerned, but were there HV
2 units controlled by other than HVO military commanders operating and
3 fighting in Central Bosnia? That's the inquiry.
4 Now, I'm not going to --
5 JUDGE MAY: That's your point, is it?
6 MR. SAYERS: Yes. And I'm not taking the point to make a mini
7 closing argument, Mr. President.
8 JUDGE MAY: No. We might as well -- the sooner we have it, the
10 MR. SAYERS: That is our point, and I don't think, frankly,
11 there's been any mystery about that. I mean, we've been perfectly open
12 about that from the beginning.
13 JUDGE MAY: I think you've said it before, so we have it in mind.
14 MR. SAYERS: Yes.
15 JUDGE BENNOUNA: [Interpretation] I'm sorry to interrupt you,
16 Mr. Sayers. I do not wish to open a debate about this which will take
17 place in due time, but I know that you have a certain interpretation of
18 the Tadic decision of the Appeals Chamber regarding the overall control,
19 the concept of overall control in the presence of foreign troops, which
20 means that the control has to be over a particular group in an internal
21 conflict, the control that is exerted from abroad. That is the idea of
22 the concept of global control, as opposed to the concept of effective
23 control. So there is a certain interpretation problem here but we will
24 discuss it in due time.
25 This doesn't necessarily mean, therefore, the presence of HVO
1 troops inside Central Bosnia. It only means that certain foreign troops
2 had an overall control over one of the parties in the conflict. So this
3 is the interpretation that we have at the moment, and I think that this
4 interpretation will be discussed in due time.
5 MR. SAYERS: And I take Your Honour's point. I think that you
6 could have an international armed conflict perhaps based on two things,
7 the actual physical presence of foreign troops on the scene of combat in a
8 particular area. Yes. No question about it. That would, therefore,
9 constitute an international armed conflict, and I think that other inquiry
10 that the Tadic Appeals Chamber indicates is appropriate is whether a
11 foreign power exercises pervasive dominant control over the military
12 operations in the area that's covered by the amended indictment.
14 But the only point I'm making is this particular transcript
15 doesn't relate to either of those things, obviously, and it doesn't
16 involve Mr. Kordic and it certainly doesn't go to the core issues
17 regarding Mr. Kordic's culpability or absence thereof.
18 Let me see. I think I had got to number 5. The general points
19 that I'm making have been made with respect to that. We've only received
20 excerpts of the English translation, although this is one of the
21 transcripts which have been completely disclosed to us in Croatian. We've
22 stated our objections to that. I don't have anything to add to them.
23 Number 6. The representations made to you today regarding extra
24 parts of the translation that are going to be provided to you in
25 connection with other arguments, I think they're a perfect illustration of
1 the situation in which we constantly find ourselves, the moving target
2 with which we've been presented. I don't know what those arguments are.
3 I haven't read the transcript, and I'm not in a position to respond to
4 them until they're provided to us. But here's the point: Why haven't
5 they been provided to us by October 30th, as ordered? That rhetorical
6 question, we would respectfully submit, there is no answer to.
7 Number 8 is September the 15th, 1993. With respect to the
8 allegations of an international armed conflict, it does not seem to relate
9 to that particularly, and with respect to Mr. Kordic's putative
10 culpability, this does not relate at all.
11 JUDGE MAY: Mr. Sayers, we are going to have to adjourn in a
13 MR. SAYERS: This appears to be a ...
14 JUDGE MAY: We've got another hearing at half past two, so we will
15 need to, I think, adjourn your argument until tomorrow. Which one have
16 you got to now?
17 MR. SAYERS: Number 8 on our list, September the 15th, 1993.
18 JUDGE MAY: We will make a note of that and we will return to the
19 matter tomorrow morning. We shall then hear the arguments about the
20 Cerkez documents, and we will hear the argument about the war diary.
21 MR. NICE: Your Honour, tomorrow morning I'm scheduled to be
22 elsewhere for an hour to deal with next week's evidence. I won't be back
23 until the break. Would the Court object if I'm substituted in responding
24 to Mr. Sayers by one of my colleagues?
25 JUDGE MAY: Not at all.
1 MR. NICE: Thank you. No discourtesy to Mr. Sayers or the Court
2 in my absence.
3 JUDGE MAY: We shall, as you'll remember, only be sitting tomorrow
4 morning. So we would be keen, if at all possible, to finish the arguments
5 tomorrow morning with a view to having time to resolving the matters,
6 after due consideration, by the end of the week.
7 MR. NICE: I've identified the Cerkez important documents, and I'm
8 telling my friends, before they leave, which of the miscellaneous ones are
9 important as well.
10 JUDGE MAY: Thank you very much. Half past nine tomorrow morning
12 --- Whereupon the hearing adjourned at 1.00 p.m.,
13 to be reconvened on Thursday, the 23rd day
14 of November, 2000 at 9.30 a.m.