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  1. 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

  2. 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

  3. 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

  4. 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

  5. 1 around. Now, those are matters which we have in mind.

    2 MR. NICE: Can I turn to the number of

    3 witnesses?

    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

  6. 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

    17 village.

    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,

  7. 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

  8. 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

  9. 1 minutes, and if we hadn't been introducing documents it

    2 could have been done in 20 minutes, I think, or half an

    3 hour.

    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 --

  10. 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

    7 about.

    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,

  11. 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.

  12. 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

  13. 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

  14. 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

    18 purposes.

    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

  15. 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

  16. 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

  17. 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

    24 manageable.

    25 MR. NICE: Thank you. I don't know if I can

  18. 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

  19. 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

  20. 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

  21. 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

  22. 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

  23. 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

  24. 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

    14 it.

    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

  25. 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

  26. 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

  27. 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

  28. 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

    12 well.

    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

  29. 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

  30. 1 separate.

    2 The other problem is even though a transcript

    3 is "public", that doesn't necessarily make it

    4 available.

    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

  31. 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,

  32. 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

    6 stand.

    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.

  33. 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

    9 problems.

    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.

  34. 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

    9 consider.

    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

    13 milinfosums.

    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

  35. 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

  36. 1 basis where the other side's documents have yet to be

    2 seen.

    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

  37. 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

  38. 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

  39. 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

    10 minutes.

    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

  40. 1 done so, but they may be willing to deal with the

    2 argument.

    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

  41. 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

    19 is.

    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

  42. 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

    24 building.

    25 If something could be done, if you could

  43. 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

  44. 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.