1 Thursday, 5th August, 1999
2 (Status Conference)
3 (Open session)
4 --- Upon commencing at 12.05 p.m.
5 JUDGE MAY: We'll deal next with the Status
6 Conference. We are in open session. Is there any
7 reason why we shouldn't remain in open session?
8 MR. NICE: Not that I can think of, no.
9 JUDGE MAY: We'll remain in open session.
10 We've had the letter now or a copy of the
11 letter from the Defence to the Prosecution setting out
12 matters they wish to raise. It may be convenient to
13 start with the Prosecution. Let us see where we are.
14 Can I, before we do that, summarise my note
15 of progress to date? Totalling the number of days sat,
16 the total, in all, is about 42 days, allowing, of
17 course, for half days and that sort of thing, and we
18 have, during that time, completed 32 witnesses. The
19 progress is slow. We don't necessarily criticise
20 anybody at this stage for that, but we have to bear it
21 in mind for the future. I think things are speeding
22 up. At least in the last week or two, they seem to
23 have been speeded up.
24 But looking at your overview, Mr. Nice,
25 dealing with the above-line witnesses, it seems that
1 you have identified some 150 witnesses remaining,
2 according to my calculations, in that category.
3 Of the various categories, again according to
4 my note, and it may not be totally accurate, of the 70
5 witnesses in category A, that is the victims and
6 witnesses from the villages and municipalities, who
7 could testify about the accused, it appears you've
8 called about 15 out of a possible 70-odd. You call six
9 international military personnel and monitors out of a
10 total of 30.
11 None of the nine witnesses on the
12 international armed conflict in category C, three of
13 the six witnesses, and 4 out of 74 witnesses to the
14 attacks on the villages in category E. Again, that's
15 not a precise figure but it gives one a rough idea.
16 That means we have a substantial way to go,
17 despite having spent four months. Again, the parties
18 are not to be criticised for that because I've been
19 engaged on another case and that means we have to sit
20 half days. As always in this Tribunal, there are other
21 cases which the Trial Chamber has to deal with, and
22 plenary. So one can't sit through as one would in a
23 national jurisdiction.
24 Perhaps you could tell us how you see the
25 matter progressing in order that we deal with it as
1 expeditiously as possible.
2 MR. NICE: Certainly. We're sorting out a
3 printing and copying oversight.
4 I'll explain exactly how I see things
5 progressing. First of all, it's clear that the time
6 that the trial will take is determined by the fact that
7 there is nothing that the Defence can admit, the fact
8 that it appears every witness has to be cross-examined
9 and the length of cross-examination, that is now out of
10 our hands.
11 It is a matter that the Trial Chamber can
12 deal with, and as I think I suggested before, given
13 that the Prosecution has, I think, achieved now the
14 maximum efficiency and economy in the presentation of
15 the evidence in chief, it would be open for the Chamber
16 to require of the Defence, before they cross-examine,
17 an indication of what the objectives of the
18 cross-examination are. It can be done --
19 JUDGE MAY: That's a matter for us, Mr. Nice,
20 if you forgive my saying so. There is one matter that
21 is within your control, and that is the number of
22 witnesses and the amount of evidence which you are
23 going to call.
24 MR. NICE: Your Honour says that that's a
25 matter for you and I must deal with that, because
1 throughout this trial I have respected and reflected at
2 every turn, by myself and by my colleagues, the fact
3 that the Chamber does not value interruptions in the
4 same way as I don't like making them. Therefore, I
5 have kept and we have kept to an absolute minimum,
6 objections about relevance, objections about the
7 production of documents and so on. We have done that
8 for several reasons but not least is because that
9 appears to be, and understandably so, the choice of the
10 Trial Chamber.
11 But if the reality is that time is being
12 taken too little value by excessive cross-examination,
13 then it is appropriate for me to mention it, and it
14 would be wholly wrong for the Prosecution to be under
15 any pressure to reduce the amount of material it is
16 entitled and obliged to present by reason of factors
17 outside its control.
18 JUDGE MAY: Mr. Nice, I have that matter
19 fully in mind. I had in mind to require you to finish
20 this case by Christmas. That would have given you
21 eight months. But the fact is that time is being taken
22 up in cross-examination and that, of course, is outside
23 your control. I note that typically a witness is
24 longer in cross-examination than he is in chief, which
25 is unusual. The usual experience is the other way
1 around. Now, those are matters which we have in mind.
2 MR. NICE: Can I turn to the number of
4 JUDGE MAY: Yes.
5 MR. NICE: Before I come to the number of
6 witnesses, I think the plan that I have in mind will
7 help you.
8 The crime base, that is the last category of
9 witnesses as we've ordered them in the overview, the
10 village witnesses, the crime base is not something that
11 can now be dealt with on the dossier approach as we
12 have originally planned, but in light of the decision
13 of the Chamber is a matter that we can deal with, we
14 believe, very expeditiously.
15 So what I have in mind is the following:
16 Efforts that were being directed towards preparing
17 dossiers for presentation in Court, on the basis of
18 witness statements and exhibits and so on, are now
19 being refocused on a broadly similar exercise but where
20 one of the principal focuses of the exercise will be
21 the possible reliance on prior testimony, either of
22 witnesses on our list or indeed of witnesses who can
23 give evidence and who gave evidence in other cases on
24 the same villages.
25 Those conducting this exercise will, of
1 course, plan to deal with a village not only by prior
2 testimony but, of course, by the testimony that comes
3 in from witnesses who have already given evidence and
4 from witnesses who will be coming to give evidence on
5 other topics. For example, direct evidence about one
6 or another of the defendants.
7 My forecast is that by probably October or
8 thereabouts, it should be possible for me to have a
9 summary, it may not be a summary that anybody else will
10 want because if it's not going to be agreed it's not
11 going to be of much use, but I will have a summary that
12 will identify the limited number of prior testimonies
13 per village or municipality, and the very limited
14 number of witnesses, if any, additional to those who
15 have already given evidence, that would be required to
16 establish a crime base for a municipality or a
18 Now, when that exercise is done, and in a
19 sense it can't be done until we've got a better idea of
20 what the intervening witnesses will provide in relation
21 to crime base, but when it's done and in light of the
22 ruling that the Chamber has given about prior
23 testimony, it will be open, of course, to the Defence
24 to seek leave to cross-examine those who gave prior
25 testimony, but as I read the Trial Chamber's decision,
1 whether they are entitled to cross-examine will be a
2 matter for the Trial Chamber.
3 So my intention is to put all the material
4 about the villages to the end of the trial because so
5 much of the material that covers it will already have
6 come in in other ways, along the way to identify
7 precisely the prior testimonies that we would seek to
8 put in, giving the Defence an opportunity to argue were
9 those witnesses should, if that's their case, come to
10 give evidence, and in the light of the decision that
11 the Chamber would then make about prior testimony, we
12 would be in a position, no doubt, to summarise the
13 prior testimony, because reading prior testimony is a
14 long and unappealing task, we could summarise it so
15 that the Chamber would then have for the crime base
16 documents of the general kind rendered admissible by
17 your decision, summary, as it may well be, of prior
18 testimony, and such limited number of witnesses as in
19 our judgement would then be required to prove the
20 various counts on the indictment.
21 Now, that is my plan. That means that I and
22 the Chamber or we and the Chamber can focus on all the
23 other categories of evidence first.
24 Picking out international armed conflict,
25 it's always possible, in light of recent decisions in
1 this building, that that matter may become more easily
2 resolved and, in any event, it's a matter that may be
3 substantially resolved by the submission of documentary
4 material, as was done in the Blaskic case. So far
5 we've called no individual witness in that category,
6 though we, of course, intend to do so, but note that
7 other evidence of other witnesses does, of course,
8 touch on that issue and can be accumulating so that
9 decisions about that can be made a little later.
10 JUDGE MAY: So the effect of that is of the
11 nine witnesses who you have at the moment, a number you
12 would anticipate not having to call.
13 MR. NICE: Yes. It may well be the case. My
14 very approximate calculation, done with the assistance
15 of Mr. Lopez-Terres, who has, in general terms, been
16 preparing lists and liasing with those who produce
17 witnesses for us, is that there is something in the
18 order of 70 or 80 witnesses above the line from the
19 other categories whom we are likely to wish to call.
20 Say 80 witnesses. Our present rate of
21 producing evidence in chief is that the witnesses last
22 between one and two hours. Some of those witnesses
23 include witnesses who inevitably will be long, other
24 witnesses who will be substantially shorter.
25 Yesterday's witness I think I accomplished in 40
1 minutes, and if we hadn't been introducing documents it
2 could have been done in 20 minutes, I think, or half an
4 Take two hours as an average for 80
5 witnesses, 160 hours, divide by 5 for the number of
6 hours in a full Court day. That's a little over
7 30 days. Six weeks, seven weeks for the evidence in
8 chief, and although, of course, some regard has to be
9 paid to the overall time limit, the time taken by a
10 case, some regard must also be taken when comparing the
11 length of these trials with other trials to the real
12 time taken, and it is my submission that that is not by
13 any means an excessive amount of time to need for a
14 case like this.
15 JUDGE MAY: Well, just let me comment that
16 speaking for myself entirely, if you were to call in a
17 case of this sort a hundred witnesses, I don't think
18 that could be objectionable by any standards. I think
19 that was the figure which the Blaskic Prosecution
20 called, about that.
21 If you were able to do it in 30 days, again,
22 nobody could complain about that.
23 MR. NICE: I'm grateful for that. Can I --
24 while we're dealing with the Court's powers, just take
25 us --
1 JUDGE MAY: I'm sorry to -- while you're
2 dealing with witnesses, in your overview, is it
3 possible to reduce the number or produce a document?
4 You produced one amendment on the 11th of May, which
5 rather increased the number. I wondered if there had
6 been any developments since then which we could be told
8 MR. NICE: There have been no developments to
9 reduce the size of the overview and its general shape.
10 We have produced, and I think they're now available for
11 distribution, a list of witnesses which I hope you'll
12 find helpful and encouraging. Perhaps I can distribute
13 that and then come back to the point I want to make in
14 the rules.
15 JUDGE BENNOUNA: What is this list exactly?
16 We have now in this list the witnesses to be called
17 until what? Is it limited in time or what? Fifty-two
18 witnesses. Can you --
19 MR. NICE: I'm afraid how long these
20 witnesses will take is substantially out of my
21 control. These 52 witnesses, on my calculation, would
22 take in chief for their evidence 52 times 2.100 divided
23 by 5, 20 days in chief. I can't say how long they'll
24 take overall.
25 But in answer to Your Honour's question,
1 there are a couple of points I want to make. This is
2 both a list of the witnesses we intend to call and we
3 put as a hope or approximation before Christmas. You
4 will see that at the end of the list, the second sheet,
5 there are six names listed with the word "transcript"
6 beside them, and the view is taken that those are
7 witnesses whose evidence may properly be read in either
8 summarised or in full from the transcript, to the
9 considerable saving of time.
10 I come back to the list as it reads. Our
11 concern is, of course, both to present our case but to
12 reflect the needs of the Chamber and the difficult job
13 the Chamber has. Our perception is that it must be
14 easier for the Chamber to have a varied diet but,
15 nevertheless, a sensible diet of witnesses so that we
16 have, generally speaking, interspersed the witnesses we
17 believe to be long witnesses around witnesses who we
18 believe can be taken much more swiftly.
19 So for example, without reading names out,
20 number 4 is likely to be a lengthy witness, I think.
21 JUDGE MAY: Cross-examination for number 4.
22 MR. NICE: Yes, that's all.
23 JUDGE MAY: And number 1 too?
24 MR. NICE: Number 1 has, but I think the
25 forecast of the time required is about a day, I think.
1 JUDGE ROBINSON: Mr. Nice, it's not clear to
2 me. You intend to complete your case with these
3 witnesses? No?
4 MR. NICE: This is the next 52 witnesses, but
5 I'll explain my position more fully after that.
6 Number 4, I think, would be a lengthy
7 witness. Number 20, too early to identify the witness
8 but would be lengthy. Number 25, an expert. Number
9 28, 38, and number 40 will be probably longer
10 witnesses. Many of the other witnesses would be short
11 witnesses, and I would still hope very much that we can
12 achieve a figure of between one and two hours for
13 examination-in-chief, even for the longer witnesses and
14 particularly for the experts, because I believe that it
15 is possible, by the techniques we are using and by
16 appropriate use of skills, to get the material across
17 to you very swiftly.
18 JUDGE BENNOUNA: (Interpretation) Mr. Nice,
19 like Judge Robinson and I listening, you are creating
20 an adversarial expectation. Of course, we are quite
21 ready to follow you if you are also ready to give us
22 sufficient elements to support what you are telling us,
23 because you are not only speaking for yourself, you are
24 telling things to the Chamber.
25 So are you intending to still call 80
1 witnesses, if I followed you properly, that is, in
2 addition to the witnesses we've already heard, you
3 intend on calling another 80 witnesses, and out of
4 these 80 witnesses, 50 are now on the list that you
5 showed us. So this is the first thing that I should
6 like to really clear up.
7 The second thing, you intend to call another
8 80 witnesses, and you have given us a list of 50 out of
9 these 80 now. Then you also said that you intend to
10 begin with categories A and B and to leave other
11 categories following, in particular, category E, for
12 the end of your case. Did I understand you properly?
13 Categories by villages.
14 You also told us that you intend using
15 transcripts and particularly summaries of transcripts.
16 Personally, I do not think it is quite a good
17 idea. I do not think it would really be good to go
18 into summaries. I think the transcripts should be used
19 or produced such as they are, rather to avoid any
20 controversies arising from summaries.
21 But could you please clarify these points
22 which I have just raised?
23 MR. NICE: Your Honour is correct in all
24 particulars save one, that I am certainly not in a
25 position to identify at this stage precisely how many
1 witnesses I intend to call, whether it's 80 or whether
2 it's more or less, for two reasons: First, as I have
3 already explained, the village crime base evidence may
4 require additional witnesses, some; second, because of
5 the other witness was -- well, there are three reasons,
6 but the second reason is because of the other witnesses
7 on the list that I haven't listed in this first 52,
8 we'll make our minds up about our need to call them as
9 the case unfolds, and it may be that we'll need to call
10 another 20; it may be that we will be able to reduce
11 that number in light of the way the case develops.
12 It has to be borne in mind, and I make this
13 point so that it's not overlooked, that things may
14 arise, as indeed they did this morning in a particular
15 setting, where witnesses have to be added to the list.
16 As this morning's private session revealed, I have to
17 add a witness, at the very least, for cross-examination
19 So this is not a final list or anything like
20 it, but I am very hopeful that this list will
21 substantially deal with all aspects of the case, apart
22 from those categories that Judge Bennouna correctly
23 explained I had omitted expressly from this list.
24 Can I respectfully take you at this stage,
25 because there is a way in which the Prosecution and the
1 Chamber can, to some degree, work together, it may be,
2 can I take you respectfully to 73 bis (D), which is the
3 Trial Chamber's powers to reduce -- or may call upon
4 the Prosecutor to reduce the number of witnesses if it
5 considers that an excessive number of witnesses are
6 being called to prove the same facts.
7 Where witnesses cross so many boundaries of
8 evidence and aren't, for example, the ten witnesses who
9 prove this particular killing or the ten witnesses who
10 prove that particular destruction of a house, it's an
11 unreal exercise to do this, in a sense, in advance.
12 Our position is that it is too early for the Chamber to
13 be making any orders on us at this stage, and it would
14 be wrong to do so.
15 But given the summaries that we produce that
16 identify topics in numbered paragraphs, it is, of
17 course, the easiest thing in the world both for us to
18 forecast what we need from a witness, where we say,
19 "The witness can speak of 20 paragraphs. We're only
20 going to these two paragraphs in the middle," and we'll
21 take evidence for ten minutes and then to sit down, and
22 it's also possible for the Chamber to indicate, when
23 it's appropriate and safe for the Chamber to do so,
24 that to call any more witnesses on that particular
25 crystallised and carefully identified topic would be
1 excessive, and we will, of course, be responsive to
2 that, subject only to the concerns we've raised earlier
3 about the difficulties that the Chamber has in making
4 provisional, factual findings.
5 But subject to that and that matter having
6 been dealt with in some way and at some stage, if the
7 Chamber looks at a witness statement or a summary and
8 says, "Well, the Chamber doesn't need to hear any more
9 on that topic," then we pass on to the next one. We've
10 made it clear, right from the beginning, that our aim
11 is to keep the Chamber's time full of evidence, and we
12 are prepared in that -- with that in mind, we are
13 prepared to have as many witnesses as is necessary here
14 and lined up, even if each of them is only going to
15 give a very short amount of evidence.
16 So that's the plan. You asked me what the
17 plan is. I am hopeful, especially if the acceleration
18 that, subject to the last witness, we've seen, if an
19 acceleration continues, I'm hopeful, indeed, that these
20 witnesses can be dealt with by Christmas, and I'm
21 hopeful that that would leave a small and manageable
22 amount of the case left. But these time estimates are
23 necessarily extremely approximate.
24 As to His Honour Judge Bennouna's point about
25 transcripts being read, not summarised, we are entirely
1 in the Court's hand, as we are in the Court's hand as
2 to whether if it decides it wants transcripts read in
3 full, it would prefer them read publicly or whether it
4 would be content to read them privately.
5 JUDGE MAY: I imagine the latter. If we're
6 trying to save time, we would certainly do so. We will
7 have to discuss --
8 JUDGE BENNOUNA: (Interpretation) Excuse me.
9 I must say that I never spoke about reading, I never
10 mentioned the words "reading of transcript". I was
11 speaking about the tendering of transcripts, so I think
12 that is a misinterpretation on your part, Mr. Nice, of
13 what I said. Let us make it quite clear. I never
14 spoke about reading.
15 JUDGE MAY: The other matter which you raise
16 is the total number of witnesses and the time. Of
17 course, we recognise that these are all matters which
18 may change and change from day to day. But what we
19 have in mind and what is our responsibility is the
20 overall size of the case and also the length of it, and
21 both of those must be within manageable proportions.
22 I must say, again speaking for myself, the
23 outline which you mentioned, Mr. Nice, does seem to be
25 MR. NICE: Thank you. I don't know if I can
1 assist further on this topic at this stage.
2 JUDGE MAY: I should add this, that we have
3 already identified one topic and indicated that we
4 required no further evidence upon it.
5 MR. NICE: Kaonik.
6 JUDGE MAY: Yes, and we will do so again.
7 MR. NICE: Certainly. Thank you very much.
8 I don't know if I can help further at this stage. This
9 list is responsive, in part -- well, we're going to
10 prepare it in any event -- but it was responsive to the
11 Defence request. I hope it helps them. They wanted
12 the whole list. I was always prepared to give it.
13 As to the witnesses available for the first
14 fortnight, I can simply tell the Court and my friends
15 opposite that all we do is we try and batch witnesses
16 so that they aren't greatly inconvenienced by being
17 kept waiting, and anything that can be told to us about
18 how long witnesses will take will better ensure that
19 that there are no gaps and, likewise, better ensure
20 that witnesses are not kept too long.
21 At the moment, we are working on the basis of
22 experience, how long each witness has been
23 cross-examined, and having to make our calculations,
24 save when we specifically discovered that it is
25 expected that a witness will take a long time. But the
1 more information, the better for that.
2 JUDGE MAY: Thank you.
3 Yes, Mr. Stein?
4 MR. STEIN: May I simply inquire at this
5 point, I don't want to interrupt the Prosecutor's
6 presentation, is this approximately the order you
7 intend to call, more or less?
8 MR. NICE: It is indeed the order we intend,
9 but the order that we intend is frequently something,
10 as the Court will recognise, that we can't deliver for
11 all sorts of reasons, but we'll do our best to stick to
12 this order or approximately.
13 JUDGE BENNOUNA: (Interpretation) Mr. Nice,
14 you have made a very useful suggestion, and that is
15 referring to 73(D), which we are very familiar with, we
16 know it so well that we have not, up until now, imposed
17 it upon you, but in order to implement it, you need to
18 help us, and that is, inform us, because you are the
19 one who has the information about the witnesses who are
20 coming and the counts, factual points that they are
21 being called to testify on.
22 So to help us, it is not small summaries that
23 do not inform us about anything. I have already been
24 able to comment on it, because on the basis of a
25 summary, we don't know exactly what the witness is
1 going to say and we do not wish to take the
2 responsibility of asking you to scratch from the list
3 such and such a witness.
4 However, on the other hand, could you give
5 us, well in advance and using the team that are not
6 going on holiday, could you give us, well in advance, I
7 don't know how to call them, but the basis of your
8 examination-in-chief, that is, the points on which you
9 are going to call those witnesses to testify on? This
10 is a technique that has functioned well, but we usually
11 get it just on the eve of the appearance. So could you
12 give us a kind of dossier this time regarding the
13 contents of the testimony of these witnesses, which
14 would help us to work in advance, and I think that
15 would help the Defence as well, and to tell us that --
16 then we would be able to see whether there is
17 repetition or whether it is absolutely necessary. This
18 would be very helpful.
19 MR. NICE: I regret, I think, probably not.
20 This technique that I introduced outside the rules to
21 assist reflects the reality of calling witnesses in
22 these cases, which is as follows: The witnesses are
23 seen at various stages in the last four years, I
24 suppose, and statements are taken from them. They may
25 be seen more than once, but nearly all of them are
1 hundreds of miles away, and contacting witnesses is a
2 difficult exercise which is very time consuming.
3 When a witness comes to give evidence, he
4 comes the night before, and the procedures that we
5 adopt are to take his material, such as it is, and it's
6 not just statements, it may be quite a volume of
7 material, and to summarise that material and to discuss
8 it with him, of course, and correct, amend, and change
9 it. That's the reason the summaries inevitably come
10 late, and I am quite sure that there are simply not the
11 resources to provide a summary of that detail earlier
12 or to provide two summaries.
13 The Defence have the material that provides
14 the outline, the first outline of the witnesses'
15 testimony, but the summaries which reflect all the
16 additional things that they can say and all the
17 changes, if any, that they want to make, can only come
18 when they are here in The Hague. We, therefore, have a
19 batch of witnesses. Say I have five witnesses on a
20 Monday for that week -- well, five witnesses on a
21 Friday, because typically, of course, we get people in
22 on a Friday, work with them over the weekend, and then
23 present them on the Monday, Tuesday, Wednesday. Yes,
24 you might have Tuesday and Wednesday's summaries ready
25 by Monday, but it's simply not possible to have them
1 ready earlier than that. Then the next batch of
2 witnesses may come in on a Monday or Tuesday typically
3 for the second half of the weekend, and so they then
4 get worked on on Tuesday and Wednesday, and they can't
5 be available until either the day before or a couple of
6 days before they give evidence.
7 So that I'm afraid to say, pleasant and
8 helpful to all of us, though it would be, to have
9 detailed summaries at an earlier stage, I'm afraid it
10 isn't going to be possible because the resources aren't
11 there, and, indeed, it wouldn't be appropriate to go
12 and -- it wouldn't be helpful to go and see the
13 witnesses, even if we had all these teams of people --
14 JUDGE BENNOUNA: (Interpretation) Mr. Nice,
15 I'm interrupting you, and I apologise for that. You
16 are not obliged. You have a detailed summary on the
17 basis of which you are going to conduct the
18 examination-in-chief, but what you could give us is a
19 scheme, a more detailed one than the summaries that we
20 have now, bearing in mind that this scheme, the
21 contents that you know from the information you have
22 collected, will not be definitive. We understand very
23 well that you bring the witness, you specify with him
24 the questions, and you base yourself on a document
25 listing a certain number of points. This is a method
1 that has produced very good results, and everyone is
2 appreciative of this. But perhaps you could work in
3 advance on this witness to give us an outline of the
4 contents of the testimony, because you know that
5 because you're calling them to testify on such and such
6 an aspect, and I think that that is possible.
7 I don't know whether you have the material
8 means to do it, in view of the number of your
9 responsibilities, and whether you have the necessary
10 teams to do this, but in any event, I believe that you
11 could do something in between the small, current
12 summaries that we have and the final document that you
13 use to conduct the examination-in-chief.
14 MR. NICE: I regret the resources at my
15 disposal, I think, would not make that possible. It's
16 a matter of -- there are not limitless resources here.
17 The summarising exercise is not done by investigators,
18 it's done by lawyers, and the lawyers typically work,
19 whatever their obligations, most evenings and all
20 weekends, and the present tasks that we have occupy all
21 our time.
22 There is also the reality that to provide
23 detailed earlier summaries would be duplicative and, in
24 a sense, dangerous, because if it's done a month or two
25 months before the witness comes, first of all, you have
1 to revisit all the area, reread all the material, so
2 you're doubling up the work, and you run the risk that
3 some of the material that you ought to research to do
4 the job properly will be missed between the two periods
5 or will occur between the two periods and the search
6 engines or whatever else are employed will have to be
7 reused. I'm afraid, my judgement is, that I won't have
8 time to do it.
9 Let me make it quite plain. If I can, if I
10 can in any way deploy my resources to make earlier
11 summaries or earlier draft summaries available, then
12 I'll do so. But I certainly am not in a position to
13 undertake that because I don't believe I can deliver
15 Within the way I work, within the way we have
16 to work with the production of witnesses by the Victims
17 and Witnesses Unit, we do provide the summaries at the
18 earliest opportunity, and, of course, the Defence are
19 in a position themselves to review in advance the
20 statements they have of these witnesses, they know now
21 the order, and to know in advance what's coming.
22 Come to that, since we've always made it
23 clear that we are happy for the Chamber to have witness
24 statements if they want them, the Chamber may itself
25 have resources that can, in some way, summarise, beyond
1 the short summaries, what the witness can say. But on
2 that, of course, I'm otherwise ignorant.
3 The Chamber can be quite sure that if there's
4 any deployment of our resources that will make life
5 easier and more efficient, then I'll do it.
6 JUDGE MAY: Thank you.
7 Mr. Stein, we have your letter of yesterday's
8 date, setting out various matters. Unless there's
9 anything you want to say about what's been said so far,
10 it may be convenient to deal with the letter. I hope
11 we can do it before the adjournment, although that may
12 be overly optimistic.
13 MR. STEIN: We are going to end up paying for
14 everyone's dinner if we try to do it by 1.00, because I
15 will have more stops from the reporters and the Court,
16 but I will try.
17 Let me preliminarily observe that the
18 Prosecution's best witnesses are behind them now. That
19 was the order of the Court, and I think it's an
20 important observation to make. Also, something I've
21 harped on continually, the more we know in advance, the
22 better and quicker we are able to style our
23 examinations, hence, although we gritted our teeth and
24 are bearing the process by which the witnesses are led
25 through direct examination, it has produced shorter
1 direct examinations, and the sooner we know, by the
2 offer of proof or summary, what the witnesses are going
3 to say, it helps us, because it shows clearly what part
4 of the witness's statement or testimony the Prosecution
5 is going to function on.
6 So we could ask, and I'm skipping way head,
7 if Your Honour could impose on my colleagues a 24-hour
8 obligation, which you had suggested but we now make the
9 case, that we have the offers of proof
10 24 hours in advance, it would help us tremendously.
11 JUDGE MAY: I think the difficulty of
12 imposing it is that there is the physical difficulty of
13 the witness not being here, and that is where being an
14 international court has its problems. We would
15 encourage 24 hours, but I think to impose it may meet
16 the response that there won't be any summaries.
17 MR. STEIN: Well, we wouldn't want that.
18 JUDGE MAY: No. But I'm sure the Prosecution
19 have heard what you've said and clearly it is in
20 everybody's interest that the summaries are available
21 as soon as possible.
22 MR. STEIN: The next most important thing to
23 observe, based on what I heard my colleague say, is
24 that the Court is going to be, as we march forward,
25 dealing with affidavits which you suggest in your
1 Tulica decision, as well as the use of prior testimony,
2 all of which we have discussed a lot, and I'm not going
3 to repeat that ground, except I do want to observe one
4 point, if I may.
5 With the use of affidavits, which you are
6 allowed, obviously, to use and with the use of the
7 Aleksovski decision with regard to prior testimony, you
8 will have a relatively anomalous situation in that much
9 of your testimony from the Prosecution and presumably
10 the Defence will be in those formats.
11 Now, that's certainly consistent with the
12 rules, but I want to observe, if I may, that that does
13 not give you, in large chunks, the ability to see,
14 hear, and focus on the presentability, credibility of a
15 live witness. That's an obviously statement. The more
16 we rely on the cold record the more anomalous the
17 situation may appear. At some point, of course, Your
18 Honours make a judgement as to balancing that. That's
19 purely an observation on my part.
20 JUDGE MAY: Mr. Stein, of course we have that
21 in mind.
22 MR. STEIN: All right. Now, Judge, most
23 important, if I may -- it please the Court, is our
24 request at 4, which is the request which we have made
25 consistently to the Office of the Prosecutor for the
1 milinfosums, the battalion records, the war diaries,
2 the radio logs, all of which were mentioned in
3 testimony, all of which are important relative to
4 specific instances, the blockade, the issues that have
5 come up and which I think Your Honours have found
6 useful. You saw the Prosecution's use of those
7 milinfosums, which are a tremendous ongoing recordation
8 of what happens, and we have, as I note in my letter,
9 the Prince of Wales -- the Cheshire, rather, Regiment
10 fairly well in hand. The Prince of Wales replaced the
11 Cheshires and the Coldstream Guards were involved as
13 I believe the Prosecution has these already.
14 Certainly we can use whatever processes are available
15 to us to get them but it seems like an awful lot of
16 work. If the Prosecution has them, they're efficacious
17 and helpful to all parties, if they would turn them
18 over to us so we could be better prepared to present
19 for you the evidence from our point of view.
20 I'm given to understand that Mr. Dooley's
21 diary which is in their position is no more legible to
22 them than us and I accept that.
23 Again, I want to repeat what I've said
24 often. I'm asking for this submission and for this
25 information not on a reciprocal discovery basis but
1 instead under the doctrine of completeness because it's
2 already in their hands. They're using it, and it's for
3 that reason that we're proceeding.
4 I believe, if I may move on, paragraph 5 is
5 self-explanatory. I raise it more as a caution for the
6 other side. I also believe we've reached an agreement
7 that the Prosecution will give us their exhibit list.
8 The manner in which the exhibits are coming in, the Z
9 list being out of chronological sequence, I want to be
10 sure that we're operating from the same page. I don't
11 think that's something we need dwell on.
12 The issues raised in paragraphs 7 and 8 are
13 troubling for us. Your Honours have, in the past,
14 intervened on our behalf and, in fact, Your Honour
15 invited the Registry, in an order dated January 13, to
16 provide us with the transcripts of all public sessions
17 in the Aleksovski, Blaskic, Kupreskic, and Furundzija
18 case, and we have been trying to get those transcripts
19 in the first place and it is not easy for a variety of
20 reasons. Similarly with the exhibits in Blaskic.
21 The first step, and we had a meeting
22 yesterday with the registrar, the first step is just
23 getting the witness list and the exhibits list, because
24 then we can carve out which are protected witnesses or
25 confidential witnesses from our requests and make them
2 The other problem is even though a transcript
3 is "public", that doesn't necessarily make it
5 THE INTERPRETER: Could Mr. Stein slow down,
6 please? Could Mr. Stein be asked to slow down?
7 MR. STEIN: Hopefully by 27 August we will
8 have the lists, but I'm concerned that we won't have
9 what we need. Mind you, the Office of the Prosecutor
10 has all of the transcripts in all of the cases and all
11 of the exhibits in all of the cases.
12 The second and more fundamental problem that
13 we have not been able to resolve with the Registrar is
14 that the exhibits themselves from Blaskic, which are
15 relevant to this case, the copying of them and the
16 manpower is apparently a problem. We have offered to
17 send secretaries or paralegals over to do that task but
18 that offer was not met with an acceptance. I asked the
19 Court in a benign way to again solicit the registrar.
20 It is obvious that this case could be over by the time
21 we get some of the records and that wouldn't be fair to
22 anyone, the Court or us.
23 Moreover, should the Prosecution or the
24 Defence wish to use any of the transcripts in an
25 affirmative way in lieu of testimony, if we have them
1 ahead of time we can make a judgement whether we object
2 or not. So I hark to the theme I've hearkened to from
3 the beginning: The more we have, the shorter our job
4 will be and the easier it will be to produce evidence
5 of an important nature to the Court.
6 On a more ticklish subject is that which we
7 raise in paragraph 8, the private testimonies of Court
8 witnesses in Blaskic, (redacted)
9 (redacted). We ask the Court to
10 solicit the Trial Chamber in Blaskic to consider
11 releasing those under the same provisions that we have
12 always operated under, the protective order issued by
13 Your Honour some time ago.
14 Again, item 9 is self-explanatory. I don't
15 think we can use it in this courtroom, but that's the
16 blowup that was -- the diorama that was used, I think
17 successfully, in the Blaskic case.
18 I want to raise one point -- actually, two
19 more points. We have -- and I say this -- I don't want
20 to end on a bad note this summer, but we have been
21 constantly scolded or lectured by Mr. Nice relative to
22 a variety of things. I take the Biblical incantation
23 to turn the other cheek which we've done, and I will
24 continue to do save one point. Any witness who takes
25 the stand subject, employed by the Prosecution or not,
1 is subject to challenge, and his bias, her interest, or
2 her motive is subject and fair game.
3 So I just want to make that undeniable and
4 clear what our position is relative to calling members
5 of the Prosecution team or any other witness to the
7 You also asked, Your Honour, in your order
8 when we were discussing where we would proceed, to
9 discuss -- you invite us to discuss the state of the
10 case and deal with any matters which the Defence or the
11 accused may want to raise concerning their detention.
12 I'd like to think that their detention doesn't include
13 us and we may go home for the summer.
14 I think that's all I have. I have three
15 minutes to spare.
16 JUDGE MAY: Mr. Kovacic?
17 MR. KOVACIC: Your Honour, I don't think I
18 have anything particularly to add first, because I want
19 to contribute to the atmosphere to be productive.
20 However, the problem which my colleague Bob Stein
21 mentioned, the process of receiving the materials from
22 other cases is really complicated. It is not that
23 somebody is not doing their job or not willing to
24 contribute, but it is, technically speaking, very, very
25 painful and very, very complicated.
1 We do hope, according to the last
2 information, that we will be able to have at least the
3 majority of those materials from other cases before we
4 resume on -- for the September part of our job. But
5 that could be a glitch, and it is certainly one of the
6 causes why we are not able sometimes to predict how
7 long our cross will need or to discuss the other side,
8 possible stipulations, and it does cause many practical
10 MR. STEIN: If it would help on this issue,
11 Judge, I've prepared a summary of the public transcript
12 requests that we've made of the Registrar and the date,
13 similarly the missing exhibits by case. It's
14 over-inclusive because of the confidential nature. If
15 I may share that with everyone, I would appreciate it.
16 JUDGE MAY: Yes. If you would hand that
17 round, please. Would the usher get those documents?
18 MR. STEIN: That's one. There's another.
19 JUDGE MAY: So, Mr. Stein, so that we have it
20 in mind, your requests relate to the Blaskic material,
21 including the private session material of Court
22 witnesses, and you are formally requesting those.
23 MR. STEIN: Yes, sir, I am.
24 JUDGE MAY: You're asking us to take steps to
25 obtain them.
1 MR. STEIN: Yes, sir, I am. It also involves
2 Kupreskic, Judge, with respect.
3 JUDGE MAY: Well, I have made an inquiry of
4 the registrar, and I'm told that it is hoped that the
5 material will be available during the recess but, of
6 course, it does leave the matters you raise in
7 paragraph 8 in relation to the Court witnesses, and
8 that is something which this Trial Chamber will have to
10 MR. STEIN: Thank you, Your Honour.
11 Additionally, I don't know the Prosecution's position
12 on our request, paragraph 4, relative to the
14 JUDGE MAY: I was going to raise that with
15 them. Paragraph 4.
16 MR. NICE: Perhaps it will help if I deal
17 with exhibits a bit more generally. Core documents,
18 I've tried to agree to those with Mr. Sayers.
19 There were a number of objections to core
20 documents by the Defence, and I haven't discussed it
21 with Mr. Kovacic, but I suspect that it will boil down
22 to this: That where the Defence notify us that they
23 assert a document is a forgery or something to that
24 effect, then of course we will go and produce
25 traditional proof of its authenticity, and I suspect
1 that all other documents are capable of being admitted
2 without proof in the core bundle, subject to any
3 arguments about relevance that would be outstanding.
4 Of course, there are some documents where better copies
5 would be desirable and we'll deal with that.
6 Second, and this is more closely connected to
7 the issue in paragraph 4, I've raised with Mr. Sayers
8 and with Mr. Stein recently, I don't think I've raised
9 it had with Mr. Kovacic, not intentionally, just
10 because it hasn't arisen, but I've raised the
11 possibility of making available to the Defence our
12 present library of documents, that is, all the
13 documents we've presently identified but on a
14 reciprocal basis. The Defence could also provide us --
15 that they could provide us with all the documents
16 they've presently got and then each side could decide
17 which documents it wanted to trouble the Chamber with.
18 That idea is not acceptable, I gather, with
19 the Defence and, therefore, our proposal or
20 consideration of making our documents available to them
21 is not one we wish at the moment to take forward
22 unilaterally. Unless there is any doubt about it, the
23 reason has to be concern about the use, not of course
24 by the lawyers, but the use that may be made of the
25 knowledge of documents that are held on a unilateral
1 basis where the other side's documents have yet to be
3 But that then brings me on to milinfosums and
4 other matters of that sort. We do not have for either
5 most or all of these categories of documents libraries
6 of them. We don't actually have complete,
7 chronological -- we are not the battalion. So that
8 provision of them would, in any event, be difficult,
9 but -- because we can't do it any better than they
10 can. We have some but we don't have all.
11 But in any event, what they are seeking is
12 that which I think the Blaskic Chamber has said they
13 shouldn't be entitled to, which is full disclosure by
14 the back door when they're not prepared to reciprocate
15 and to trigger reciprocal discovery.
16 JUDGE MAY: Well, have you given them all the
17 milinfosums and the like that you have?
18 MR. NICE: No, I don't think we have given
19 them all the ones that we have and nor do I think they
20 are entitled to them, because they're entitled to those
21 that are relevant to a particular witness's testimony,
22 but there's no doctrine of completeness that says since
23 you have one particular document from a general
24 category, a category that may be authored by all sorts
25 of different people, that they're entitled ipso facto
1 to the rest.
2 JUDGE MAY: You might like to review that,
3 have a look at them and decide what to hand over and
4 what not to.
5 MR. NICE: I had considered, incidentally, at
6 an earlier stage for -- maybe ECMM documents where I
7 think we do have libraries, I'm not so sure, whether
8 the Chamber would itself want to have a library of such
9 documents. There seem to be two competing
10 possibilities. One is a Chamber would like to have a
11 continuous record where they exist that it can turn to
12 as a library document and say, "Well, what was this
13 authority saying on this day or that day?"
14 The alternative is perhaps to reflect the
15 views of Judge Robinson on one or two earlier
16 occasions. You might prefer or ask to identify what
17 you would like and not to be burdened with the
18 responsibility of looking at the whole library.
19 I mentioned we will be responsive to the
20 overall view that the Chamber expresses on that. For
21 the time being, we will carry on the policy of
22 producing what we think to be relevant, but we can't
23 always take the different course.
24 That's the position on exhibits. Can I deal
25 with two other things -- three other things? On page
1 1, the first page with the letter, there's a reference
2 at paragraph 3 --
3 JUDGE BENNOUNA: (Interpretation) Mr. Nice,
4 regarding the document question, because you're making
5 many proposals, what is, after all, the final solution
6 to regulate the matter regarding documents, because we
7 must have a clear answer to give to the Defence. What
8 is the most practical solution?
9 MR. NICE: I think that the most practical
10 solution is to carry on the way we are doing, that is,
11 to produce exhibits individually through the
12 witnesses. I will be responsive to His Honour
13 Judge May's invitation to reconsider that in relation
14 to any collection of documents that we have, and I will
15 discuss that with my colleagues and we will not burden
16 the Chamber with an excessive number of libraries of
17 documents unless invited to do so.
18 JUDGE BENNOUNA: (Interpretation) Well, I
19 should like to suggest on practical terms, because we
20 should also like to do that. We believe that Defence
21 should also prepare and submit a similar list to the
22 Chamber, not for all various categories but a list of
23 documents which you intend to produce.
24 So I should like to ask the Defence to also
25 tell us which of the documents did they miss, which
1 they still need. We could also examine, together with
2 the Prosecutor, rather, with the Prosecutor's Office,
3 anything that could be done very quickly.
4 MR. NICE: Paragraph 3, if it's convenient,
5 deals with unavailable or unwilling witnesses. This is
6 an argument that started weeks if not months ago and is
7 yet to be concluded. It may be the Chamber would
8 prefer not to conclude it today, especially if I can
9 conclude everything else I have to say in about five
11 JUDGE MAY: We'll deal with that in due
12 course when it arises.
13 MR. NICE: Can I -- well, it's due for
14 resolution. Can I explain what the issue is? We've
15 prepared a skeleton argument which touches on a
16 slightly wider issue, the unwilling witnesses, but is
17 specific as to dead witnesses, namely the two witnesses
18 that are referred to there.
19 The skeleton argument was only available this
20 morning, and I'm afraid I didn't get it served on the
21 Defence until rather later than it was actually
22 available. It was available sometime after 9.30. I'd
23 invited them, at an earlier stage, to prepare
24 themselves with the skeleton argument on unavailable or
25 unwilling witnesses generally. I don't think they've
1 done so, but they may be willing to deal with the
3 However, an alternative would be for the
4 Chamber to take the skeleton argument away and for the
5 matter to be argued shortly, sometime in September.
6 JUDGE MAY: That seems sensible.
7 MR. NICE: And I have attached to the
8 argument a short paper on "Developments of the Law on
9 and Hearsay in Canada", something I promised, something
10 that might be of particular interest to those with
11 common-law experience, so as not to suggest a bias that
12 I have for I have none. It doesn't suggest the
13 resolution of the problem but it's a thinking
14 document. It's a document to help with those arguments
15 that although they perhaps shouldn't use the word
16 "hearsay" do, and it seemed to me might be a useful
17 piece of material for the Chamber to have, and that is
18 available today. Can we, however, argue the point
19 shortly when we return in the autumn?
20 Dealing with the other points raised by
21 Mr. Stein, paragraph 9 would, I think, be extremely
22 unhelpful, to have the three-dimensional diorama used
23 by Blaskic. It was, I think, for some unexplained
24 reason out of scale by a factor of three vertically, so
25 that it made the area resemble a skiing resort, and was
1 stuck with a whole range of flags, and it doesn't cover
2 the whole area.
3 I have, as the Chamber requested, instituted
4 an exercise which will produce, I think it will be, a
5 large-scale map and probably with overlays to reveal
6 troop deployments and possibly troop movements over the
7 relevant period of time, and I hope that will be
8 available by the time we reconvene in September.
9 Dealing with the territory itself, we've
10 written to the Defence some time ago now with our own
11 proposal for any possible judicial view of the area,
12 and there's no urgency about this, but no doubt the
13 Defence will shortly reply with any other locations
14 that they think the Chamber might like to see, and then
15 the document will be available for the Chamber to
16 consider, but I imagine it would be helpful for the
17 Chamber to have it either at the start of the first
18 session in September or possibly earlier, but there it
20 As to the point about all witnesses being
21 fair game, I think that's a matter entirely for the
22 Chamber, but I do have a duty, which I will continue to
23 perform, to keep matters within limits and on point.
24 That's all have I to say.
25 JUDGE MAY: Are there any points that anybody
1 wishes to raise about the conditions of detention?
2 We're prepared to consider anything which anybody wants
3 to raise.
4 MR. KOVACIC: Your Honour, only one small
5 thing: If you can help, we did inform the Registry,
6 and, of course, since it is more or less a technical
7 safety consideration thing, it was left to be
8 considered; however, it seems there was no result.
9 Because of certain information which the
10 Dutch security got sometime, I don't know, this spring
11 probably sometime, April or May, the safety was really
12 increased. Among other things, the clients are
13 transported from the detention unit to this building in
14 little private vehicles with heavy bulletproof vests,
15 which, of course, we have to accept because it's
16 security and they are the experts on the issue.
17 The problem is they get very warm, and then
18 they are escorted in the same equipment from the
19 entrance of this building up to the detention part
20 attached to the courtroom, and they get wet from
21 sweating. Of course, we are not experts, and I
22 apologise for that, but it's obvious that a heavy-duty
23 bulletproof vest is not needed when entering the
25 If something could be done, if you could
1 address the Registry, that somebody should deal with
2 that, that is the only inconvenience they are facing at
3 the moment. Thank you.
4 JUDGE MAY: Yes, Mr. Stein.
5 MR. STEIN: Thank you for soliciting, Judge,
6 but we have nothing to raise on behalf of Mr. Kordic.
7 I would accept anything that they have in their library
8 by way of milinfosums, even if it's not all of them.
9 JUDGE MAY: As far as the matters which
10 Mr. Kovacic raises, they are matters, of course,
11 primarily of security, and the Court must accept what
12 he's ordered in that respect. But we will ensure that
13 the comments are passed on, and, no doubt, those
14 responsible can look at the matter.
15 MR. KOVACIC: I apologise, Your Honour. My
16 client is just telling me that it is now okay in the
17 building, but the same applies for their building in
18 the detention centre, because they are travelling from
19 the main entrance to their part and it's also very,
20 very long.
21 JUDGE MAY: Very well.
22 MR. KOVACIC: Thank you very much.
23 JUDGE MAY: The comments can be passed on.
24 MR. NICE: Sorry. Ms. Somers reminds me that
25 some of the names on the witness list are witnesses who
1 will almost certainly give evidence with full
2 protection; therefore, the list should remain simply
3 with the lawyers.
4 JUDGE MAY: Yes. The list is protected.
5 We will adjourn now until September, half
6 past nine on that Monday.
7 --- Whereupon the hearing adjourned at
8 1.15 p.m., to be reconvened on Monday,
9 the 13th of September, 1999, at
10 9.30 a.m.