1 Friday, 5th November, 1999
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.38 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T, the Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 JUDGE MAY: I'm sorry to have kept you
9 waiting. It was my fault. I was discussing various
11 Who's going to begin?
12 MR. SAYERS: Mr. President, with the Court's
13 permission, I will.
14 We have several issues that we'd like to
15 discuss today and get some rulings on, if we can. The
16 first is related to the issue of dead witnesses, and
17 specifically the statements of Midhat Haskic and Erik
18 Friis-Pedersen that the Prosecution wishes to have
19 admitted into evidence. Secondly, is the issue of the
20 site visit that the Prosecution has proposed. The
21 third concerns a request previously made by the Trial
22 Chamber to the Blaskic Trial Chamber relating to the
23 closed testimony of three witnesses. The fourth
24 relates to the protective order that has been entered
25 into; this case needs a slight modification in order to
1 make it reciprocal. We have an ex parte matter of a
2 very short duration that we need to take up with the
3 Trial Chamber. There is an issue related to the secret
4 witnesses that have been called by the Prosecution and
5 subsequent recantations of the need for protective
7 Then we have several issues related to the
8 conduct of expeditious and fair trial. There are five
9 issues that I've been able to identify. They are as
10 follows: the issue of the two weeks' advance notice of
11 the order of witnesses that has been ordered by the
12 Trial Chamber; the use of leading questions; the matter
13 of exhibits, and fair advance notice of what those
14 exhibits are going to be, so that we don't have to
15 scramble through them in the Trial Chamber; the issue
16 of notes and diaries prepared by witnesses; and then an
17 issue relating to certain standing objections in order
18 to eliminate the necessity for objections and
19 interruption of witnesses' testimony.
20 With the Court's permission, I will address
21 the issue of dead witnesses and Ms. Ers Haskic and
22 Friis-Pedersen; the Blaskic issue; I'll take up the ex
23 parte matter; and I will handle the two weeks' advance
24 notice and leading-questions issues. Mr. Stein will
25 take up the site visit issue, the protective order
1 issue, the matter relating to secret witnesses, and the
2 fair trial matters related to exhibits, notes, and
3 diaries, and standing objections.
4 JUDGE MAY: What we'll do is this. We'll
5 take these items one by one.
6 Perhaps the Registrar could do something
7 about the building works, please. Thank you.
8 The sensible course, I think, would be to
9 deal with some of these matters. Necessarily, it will
10 have to be dealt with in private session, I think.
11 But on the issue of dead witnesses, to begin
12 with the first, this is a matter which we have
13 discussed. It has been outstanding for some time. As
14 I observed on the last occasion, it's certainly not
15 usually a matter for the Defence to determine when the
16 application should be made, since it is the
17 Prosecution's application to have the evidence
18 admitted, not, as it were, your application.
19 Now, Mr. Sayers, what is it you want to say
20 about that?
21 MR. SAYERS: Obviously, Mr. President, if the
22 Court feels that this is not the appropriate time and
23 if the Prosecution feels that this is not the
24 appropriate time to address those issues, then so be
25 it. But I personally cannot imagine that there is
1 anything more to be argued concerning these issues. I
2 think that full submissions have been made to the
3 Court; they simply can be highlighted in oral
4 argument. As I understand it, with respect to
5 Mr. Haskic, anyway, there are some issues relating to
6 the death certificate that need to be addressed --
7 JUDGE MAY: Let me interrupt you. Mr. Nice
8 said yesterday that there was some evidence which he
9 was going to call which would bear upon that issue and,
10 if that is right, it would be presumably more sensible
11 to hear that and rule in the light of it.
12 Mr. Nice, perhaps you can help. Is that the
13 position, as I understood it?
14 MR. NICE: Yes. In each case -- that is,
15 Friis-Pedersen and Haskic -- there is more evidence yet
16 to come before the Trial Chamber on the topics to which
17 each of those deceased witnesses' statements could
18 bear. And it seems to me, rather than address argument
19 against the backdrop of projected evidence, it would be
20 more helpful for the Chamber and make more sense to
21 have all the evidence in, and then for the argument
22 about the dead witness to be addressed in light of that
23 evidence. It will then be possible to know to what
24 extent the evidence is freestanding and to what extent
25 it is confirming earlier evidence.
1 JUDGE MAY: And that could affect our ruling
2 in terms of --
3 MR. NICE: Indeed.
4 JUDGE MAY: -- how necessary the evidence
6 Mr. Sayers, it seems sensible to deal with it
7 when we know the full context in which the evidence is
8 going to be sought to be admitted.
9 MR. SAYERS: May I make just one point in
10 that regard?
11 JUDGE MAY: Yes.
12 MR. SAYERS: I fully agree with the
13 Prosecution, if there is confirmatory evidence
14 regarding the actual facts in dispute regarding
15 Mr. Haskic, for example, actual corroborative evidence
16 of the facts about which he testifies, not about prior
17 meetings or prior issues, then I'm in full agreement;
18 it may be best to defer that.
19 But with respect to Mr. Friis-Pedersen, it
20 strikes me that that's a completely discrete argument.
21 The argument is this. It's very simple.
22 Mr. Friis-Pedersen's testimony, his sworn testimony in
23 the Blaskic case, has already been admitted in this
24 case under the rule of Aleksovski. So what we have now
25 is an effort on the part of the Prosecution to have his
1 statement admitted as well, and we think that, for the
2 reasons stated in the Tulica dossier decision, amongst
3 other things, there's absolutely no reason not to do
4 that. This man was cross-examined --
5 JUDGE MAY: Mr. Sayers, we hear the
6 argument. I think it would be more convenient to deal
7 with any dead witnesses together, no matter what the
8 arguments are.
9 The next point you raised, to do with a
10 visit. It may be more appropriate to deal with that in
11 a closed session in due course.
12 MR. SAYERS: Yes.
13 JUDGE MAY: If we leave that for the moment.
14 The next matter was the Blaskic order and the
15 closed testimony. Would you remind us.
16 MR. SAYERS: I don't believe that there is
17 any need to go into closed session about that because I
18 don't need to mention the names. I think the Court
19 will have in mind that on August the 6th a request was
20 issued to the Blaskic Trial Chamber to have the closed
21 session testimony of three witnesses released to the
22 parties in this case. And no action has been taken on
23 that, regrettably.
24 JUDGE MAY: Very well. Let me draw that
25 attention to the senior legal officer, and the matter
1 will be pursued. Perhaps, if again there is no
2 response within 28 days, you can raise the matter
4 MR. SAYERS: I'm much obliged,
5 Mr. President.
6 JUDGE MAY: We will ask for a response,
8 Yes. There's an issue on protective orders.
9 MR. SAYERS: And Mr. Stein will address that.
10 JUDGE MAY: Mr. Stein, is it a matter which
11 we could deal with in open session or is it a matter
12 for closed session?
13 MR. STEIN: It matters not either way.
14 JUDGE MAY: Deal with it now then.
15 MR. STEIN: May it please the Court. We
16 would essentially ask that the Court amend the
17 protective order to make it reciprocal. In particular,
18 I would give you up a draft of the section of the
19 protective order that we would like to have changed, if
20 I may. A copy for the Prosecution and the Registrar so
21 we won't be dealing in the abstract.
22 May it please the Court. Pursuant to Rule
23 73(a) and 75(a) of the Rules of Procedure and Evidence
24 and paragraph 11 of this Court's 15 January 1999 order
25 for measures to protect victims and witnesses, we
1 essentially move to amend certain parts of the
2 protective order relative to the announcement of and
3 contact with defence witnesses.
4 We will presumably be obliged shortly, and I
5 use the term advisedly, to produce a list of defence
6 witnesses. The Prosecution, of course, has insisted on
7 a protective order relative to the witnesses they have
8 named in their submissions. We, with great care, have
9 studied that order and we realise it is not reciprocal.
10 The sad part about what has happened in the
11 former Yugoslavia is there is a perception by witnesses
12 who I have interviewed, by witnesses that other members
13 of our team have interviewed, of concern, whether it's
14 legitimate concern or not is not the point, about being
15 contacted by either members of the Prosecution
16 themselves or investigators.
17 And so we essentially ask for the same kinds
18 of protections with regard to defence witnesses that
19 are already extant with regard to Prosecution
21 JUDGE MAY: So this is an order which will
22 apply when the defence begins?
23 MR. STEIN: Exactly. Or 30 days before
24 because we'll be announcing our witnesses by then.
25 I think the specifics of the order are set
1 out very clearly, the proposed order, in the draft I've
2 handed up. The Prosecution will suffer no prejudice by
3 it. We have suffered no prejudice by living under the
4 order for as long as we have, and it would be advisable
5 to enter into such an order. Certainly the Rules
6 contemplate that the orders entered for protection of
7 witnesses be reciprocal. Rule 75(a) authorises the
8 Trial Chamber to adopt measures for the protection of
9 witnesses "at the request of either party." This issue
10 was forecast in Pre-Trial proceedings, in pleadings
11 regarding the protective order. Certainly the
12 Prosecution was aware of it as early as 23 October
13 1998, and in our pleadings in the fall of 1998, and we
14 think now is an appropriate time to deal with and have
15 the Court resolve it.
16 JUDGE MAY: Does the Prosecution have any
18 MR. NICE: I haven't seen this draft before,
19 therefore, I haven't been able to integrate it with the
20 original order. Protective orders is something that's
21 been dealt with principally by Mr. Scott, and I didn't
22 know this was going to be raised this morning. There
23 is no immediate pressure on having this agreed. Maybe
24 have until next week just to look at it, and if there
25 is no objection, we'll let you know straightaway.
1 JUDGE MAY: Yes.
2 JUDGE BENNOUNA: [Interpretation] Mr. Stein,
3 wouldn't it be simpler, from a formal point of view,
4 because what you are suggesting is a review of a
5 previous order for protective measures, and therefore
6 we have to have the previous order in order to make
7 comparisons with what Mr. Nice had just said. But
8 would it be simpler, since it's going to apply only, as
9 you said, once the Defence has begun to present its
10 case or a little time before, you spoke about a month,
11 wouldn't it be better for you to have another plan,
12 another draft or, rather, another order rather than --
13 rather than one that would be changing this one?
14 Wouldn't that be easier? Because it's a formal issue.
15 I think it would be easier for you to make a
16 request in proper form, with a proposal for an order
17 for protective measures that we could study, and at
18 that point we would have the response from the
19 Prosecutor and we would take our decision in that
21 MR. STEIN: We can certainly proceed that way
22 -- it is on. We can certainly proceed in that way.
23 In this age of word processing, the reason that I
24 attached what I did and gave it to you, for those of us
25 who are semi-computer literate or not, is you can see
1 on the draft the old part of the order that we want to
2 strike and the new part that we want to enter. But we
3 certainly can file a formal pleading setting out the
4 change in the order, if it makes it easier, and we'll
5 be glad to do that. It won't take but a few minutes.
6 But I chose this way.
7 JUDGE MAY: The Prosecution needs some time
8 to look at it. Obviously, we need a bit of time,
9 because it may be helpful. There is no need to enter a
10 formal pleading with the argument and all of that sort
11 of thing, but to enter the proposed order which you
12 wish to suggest to us.
13 MR. STEIN: I'll clean that up and have that
14 within 48 hours or so.
15 JUDGE MAY: Yes, I think that would be the
16 best way to proceed.
17 The next matter is described as secret
19 MR. STEIN: May it please the Court. What
20 we'd like to have at this time is a review of the
21 process relative to secret witnesses. We believe thus
22 far two at least of the secret witnesses have revealed
23 the process which creates a problem. Two of the
24 witnesses, I'm sure Your Honours are aware because they
25 are not public, Mr. Cicak and Mr. Kljuic, we were told
1 were secret witnesses. The Prosecution flooded the
2 Chamber with many prejudicial statements why they
3 wanted to be secret witnesses. When they came actually
4 to The Hague, they said, "We don't want to be a secret
5 witness. We want our testimony for the world."
6 In the meantime, we had been prejudiced
7 because, A, only four of our team could work on the
8 matter; B, the discovery attendant to the witness's
9 testimony was delayed until ten days before their
10 appearance; and last, but not least, what is not
11 particularly apparent is that the process by which we
12 have to set up our affairs and our own shop to make
13 sure that no one has access to these particular
14 witnesses statements is difficult.
15 Moreover, some of the witnesses bring huge
16 amounts of documents and things with them. So in ten
17 days we are asked to analyse a large amount of
19 What we ask the Court, not to eliminate the
20 process of secret witnesses. That would be
21 inappropriate. But before the Prosecution is allowed
22 to use and embark on the secret witness process, that
23 the witness sign an affirmation presented to the Court
24 as to why he wants secret witness status and that he
25 does in fact want said status. That would eliminate
1 the entire problem.
2 That's all I have to say on that particular
4 JUDGE ROBINSON: Mr. Stein, even after he
5 signs that affirmation, he might still change his mind.
6 MR. STEIN: Absolutely correct. Absolutely
7 true. But at least we'll have a reason in advance to
8 know of his status. And if he changes his mind, that
9 might be -- in fact, become a credibility issue. But
10 there are exigencies, of course, that we have to
12 I guess what I am really saying is there
13 appears to be, and I can't say this with certainty, a
14 gap between the Prosecutor's office and the witness or
15 whoever contacts the witnesses from the Prosecutor's
16 office on the secret witness status. We are trying to
17 close that gap. If someone from the Prosecution's
18 office believes the witness wants secret witness
19 status, have the witness himself sign an affirmation in
20 that regard.
21 MR. NICE: I certainly hope there is not a
22 gap between the office and the witness. There is, of
23 course, sometimes a difference between the attitude of
24 the witness ahead of getting here and ahead of
25 overcoming the practical difficulties of getting here
1 without being interrupted and disturbed, and the way he
2 feels when he is here. Of course, when they are here,
3 they are all subject to the emphasis that I personally
4 place on witnesses giving evidence in public whenever
5 possible. And that may account in part or whole for
6 apparent changes of mind.
7 I would resist the suggestion that there has
8 to be some routine whereby witnesses sign an
9 affirmation setting out their requested measure of
10 protection. That would create all sorts of practical
11 difficulties, I think, and would not relieve the
12 Tribunal of making a decision on a case-by-case basis.
13 I would ask the existing routine to stay in
14 place, that is to say, that the Tribunal will consider
15 applications on a case-by-case basis. Obviously, if it
16 has questions or concerns, when material is presented
17 in written form, it can seek further clarification from
18 us. If it wants something particular from a particular
19 witness, it can do so. But it can be confident that so
20 far as I am concerned, and I hope all of my team, the
21 clear emphasis with all witnesses is on giving evidence
22 in public, and if that has occasionally led to an
23 apparent change of position, I'm sorry. But I think
24 it's a change in the right direction.
25 MR. STEIN: Let me, if I can for the Court,
1 merely remind the Court that Mr. Kljuic, for instance,
2 came to Court and said, "I never wanted to be a secret
3 witness. I have to tell the world about what went
5 Now, there must have been some
6 miscommunication between the Prosecutor's office and
7 Mr. Kljuic, because he was the subject of a secret
8 witness application.
9 JUDGE MAY: Or Mr. Kljuic changed his mind.
10 MR. STEIN: Either or. But this proposal
11 would elucidate that issue.
12 JUDGE BENNOUNA: [Interpretation] Mr. Nice,
13 when you work with a witness, your investigators see
14 the witness, they gather the substantial information,
15 and the witness says that he intends to testify under
16 that circumstance. Do you have him sign his statement
17 as to the substance? Would it be difficult for you
18 also to have him sign a declaration about the way and
19 the manner that he wishes to testify? Would that
20 disturb you so much? I am speaking about the future
21 witnesses. For those who have already been here it's a
22 closed issue. But when you make a statement, perhaps
23 they could also sign as to the substance and as to the
25 MR. NICE: I don't think there will be a
1 problem when witnesses are seen at the time that the
2 decision is made for them to come and give evidence.
3 But there are witnesses, I think, with whom we have no
4 direct contact ahead of their coming to the Tribunal
5 and with whom negotiations are made sometimes via third
6 parties, of necessity, and sometimes via other
7 agencies. And so in those cases, of course we wouldn't
8 be able to have a statement contemporaneous with their
9 first expression of intention and willingness to
11 But where we do see a witness directly, yes,
12 I don't see any problem with that, and I can endeavour
13 to ensure that that is all done for all future such
15 JUDGE MAY: Or in the case of the other
16 witnesses, you simply send an affirmation or
17 declaration or something of that sort through to them
18 and ask them to sign it.
19 MR. NICE: If only it should be that easy. I
20 can deal with it ex parte, but there are one or two
21 cases where I'm afraid that simply wouldn't be
22 possible. But I think there are only one or two cases
23 outstanding, in any event.
24 JUDGE MAY: Well, I was going to ask you
25 that, as to the size of the problem.
1 MR. NICE: Very small. It's a very small,
2 outstanding problem.
3 [Trial Chamber confers]
4 JUDGE MAY: Well, we will consider this
5 matter. The principle, of course, is that evidence is
6 given in public session and we would encourage anything
7 to that end. We recognise that in some cases there
8 will be good reason why this can't be done. But we
9 also recognise that it does place burdens on the
10 defence, if such a procedure is followed, as has been
12 What we shall order is this: That normally
13 the witness should sign a declaration that he wishes
14 the matter to be heard in the way which is suggested,
15 i.e., secretly; that if there are reasons why that
16 can't be done, that will have to be explained to the
17 Court. The statement should also set out briefly why
18 the witness is requesting that the matter be dealt with
19 in this way.
20 MR. NICE: That will be done.
21 JUDGE MAY: The next issues are, I think, if
22 I have it right, under the heading of expeditious
24 MR. SAYERS: Yes, Mr. President. We've
25 grouped these issues together, and I don't think they
1 will take particularly long to address. They are all
2 under the heading of fair and expeditious trial
4 At the beginning of the discussion, I
5 certainly want to stress -- and I hope that the Court
6 is under the impression that this has been the case --
7 that the Defence has been bending over backwards to try
8 to accommodate the expediency with which evidence is
9 brought in. It's embarrassing and unprofessional for
10 us to have to scramble around at the last minute to try
11 to come up with a comprehensive, short,
12 cross-examination plan. That takes unnecessary time,
13 goes into unnecessary subjects, and it's
14 extraordinarily difficult, once you have come up with a
15 plan in advance without knowing exactly what subjects
16 the witness is going to testify about, to eliminate, on
17 the spur of the moment, areas of questioning which, had
18 you had a little bit more advance notice or time to
19 prepare, a little more time for reflection, you
20 wouldn't have to go into. And that would save the
21 Trial Chamber's time and patience.
22 The first two issues that I want to bring up
23 are related directly to those matters. The first is --
24 actually, both of these issues involve a large number
25 of witnesses identified by the Prosecution as witnesses
1 it intends to call, and therefore for whom the Defence
2 has to prepare; 375, I think, is the number. I don't
3 think anyone really believes that that will ultimately
4 be the number, but we don't have any definitive number
5 yet, and that's a problem for the Court, but especially
6 for the people that have to prepare for the
7 cross-examination of these witnesses.
8 And so the two issues that I would like to
9 raise initially are the use of leading questions.
10 First, the Prosecutor itself sought a prohibition, as
11 no doubt the Trial Chamber will remember, on the use of
12 leading questions on direct examination. I think that
13 as procedures have evolved in this case, there's been a
14 move away from that, and perhaps it's a legitimate and
15 a good move under the appropriate circumstances. And
16 those circumstances are, I think, when we are given an
17 accurate -- and I stress, an accurate -- forecast of
18 what the witness is supposed to be saying sufficiently
19 in advance to be able to identify -- 24 hours would be
20 sufficient, as has been occasionally the practice with
21 respect to past witnesses; 24 hours would be sufficient
22 to specify to the Trial Chamber the matters upon which
23 we do not object to having the Prosecution lead its own
24 witnesses through the evidence. But I do stress that
25 we do object to the use of leading questions when we're
1 given these offers of proof 24 seconds before the
2 witness testifies, as was the case yesterday,
3 especially in regard to witnesses that the Prosecution
4 orally characterises as important witnesses, and
5 especially when there's such a substantial deviation
6 between the forecast of what they're supposedly going
7 to say and what they actually do say.
8 So we would urge the Trial Chamber to hold
9 the Prosecution to what it had originally sought, when
10 these offers of proof are not provided more than
11 24 hours in advance, and that is, do not lead your own
12 witness through the testimony. We think it's unfair.
13 It's unfairly surprising, and it puts unfair burdens
14 upon the Defence to have to make snap decisions, once
15 again on the spur of the moment, as to areas which are
16 appropriate subjects of leading or not.
17 JUDGE MAY: Can I interrupt, Mr. Sayers, to
18 say this. The first thing that you are asking for,
19 although you haven't in terms, is a definitive list of
21 MR. SAYERS: Yes.
22 JUDGE MAY: Now, as I recollect, we have
23 ordered a Status Conference towards the end of this
24 month, the 26th of November --
25 MR. SAYERS: Yes, indeed.
1 JUDGE MAY: -- to my recollection. And the
2 Prosecutor is going to provide us with a list.
3 As for the other matters, this is -- the
4 whole question of leading questions is partly a matter
5 of practice, and where I come from, you can't lead on
6 matters which are in dispute. That's the essential
7 rule, and the reason is that if you do, it makes the
8 evidence worthless, because it's counsel giving the
10 But that said, on matters which aren't in
11 dispute, matters of bringing the witness to the point
12 of proof, to the real matters which are in dispute,
13 then leading questions play an important role; it gets
14 the witness there as quickly as possible.
15 We have been through this question of the
16 offers of proof and heard the Prosecution on the
17 subject, and their answer always is, "Well, we do the
18 best we can, but we have a limited amount of time
19 because of the witnesses arriving fairly late in The
20 Hague and us having to get the witnesses ready." We've
21 encouraged the use of these offers of proof as a way of
22 concentrating the evidence in a particular area, and we
23 would not wish to discourage their use.
24 There is no burden on the Defence in
25 relation -- or should be no burden on the Defence -- in
1 relation to saying what is disputed and what isn't. No
2 one would expect you, on getting a document,
3 immediately to be able to respond to it. I think it's
4 the ideal situation if you have it 24 hours in advance
5 so that you can, and I would hope that the Prosecution
6 have that in mind and try and comply as much as
7 possible. But I guess, in some cases, their answer is
8 that it's physically impossible to do it before then,
9 in which case there is no burden on you to say what
10 they can lead on and what they can't.
11 But I think some intelligent, as it were, use
12 of leading questions is perfectly permissible. And I
13 think to this extent there's a burden on the Defence,
14 to say, objecting, "Don't lead from now on."
15 MR. SAYERS: I fully agree.
16 JUDGE MAY: If leading is going on, "Don't
17 lead on this point." And it's an important part, if I
18 may say so, because it does indicate what's in dispute
19 and warns the Prosecution, and what isn't. If that's
20 of any assistance.
21 MR. SAYERS: Of course it's of assistance,
22 Mr. President, in the abstract, but as a practical
23 matter, when you're confronted with something that's 25
24 pages long and maybe 165 paragraphs -- I mean, I'm not
25 telling the Court anything that it doesn't already know
1 -- it's extraordinarily difficult for us to read that
2 and assimilate it in any reasonable period of time, and
3 then react to it instantly, without constantly standing
4 up and interrupting and -- I hope I can say --
5 incurring the risk of the Court's wrath by appearing to
6 be obstructive when we don't mean to be, and we simply
7 mean to say that these matters are in dispute. And
8 oftentimes the pace of leading questions is so fast
9 that sometimes you're through a subject before you have
10 the opportunity to say, "Objection."
11 JUDGE MAY: Mr. Sayers, speaking for myself,
12 I do not object when counsel, even from a sitting
13 position, shouts out, "Don't lead," and that is the way
14 to stop it. If there is a torrent of leading
15 questions, as it were, on a matter which is in dispute,
16 then of course the Prosecution should be stopped. And
17 it's in fact helpful if the Defence do say, "Don't
18 lead," because then the Court knows that these are
19 matters on which there should not be leading
21 MR. SAYERS: That is helpful, Mr. President.
22 I hope that it won't be necessary, but in the event
23 that we get deliveries at the last second, so to speak,
24 then we will try our best to inform the Prosecution
25 that it should not lead as to particular paragraphs.
1 JUDGE MAY: Yes. And if you have a situation
2 with the document arriving just before the witness
3 gives evidence, then by all means say so, so that the
4 Court knows what the position is. And if you do make
5 your objections in that form, then it will be
7 MR. SAYERS: Thank you very much,
8 Mr. President.
9 The second point that I wanted to address in
10 this regard is related somewhat, and it's somewhat
11 different from the point that you raised regarding the
12 universe of witnesses. It's really an issue that's
13 related to the scheduling order that was entered on
14 March the 22nd. We did not want necessarily to bring
15 this to the Trial Chamber's attention. We've had a
16 torrent of correspondence with the Prosecution, but I
17 think, frankly, the time has come when we need to
18 insist upon exactly what the Court ordered.
19 And the Court ordered two very simple
20 things. In paragraph 5 of the scheduling order that
21 was entered on March the 22nd, the Court required that
22 "The Prosecution shall provide the Trial Chamber and
23 the Defence with not less than two weeks' notice of the
24 witnesses to be called"; and then the second thing was,
25 "and shall draw the attention of the Trial Chamber to
1 the relative importance of certain witnesses as
3 Now, as far as I'm aware, there have been
4 about three occasions upon which we have received this
5 two weeks' advance notice in the seven months of
6 trial. There have been 54 witnesses called so far.
7 Many of the witnesses who were indicated in the three
8 two-week notices that we've got are actually witnesses
9 who have, A, not been called, or not called in that
10 order. So once again it's a matter of preparation, a
11 matter of expediency, trying to accelerate the fairness
12 of the process and streamlining our cross-examination.
13 I think we're entitled to exactly what the
14 Court ordered, except in extraordinary circumstances,
15 obviously, which can perhaps be addressed on a
16 case-by-case basis. But it seems to me, Your Honour,
17 if I may say so, that given the fact that the order is
18 so clear, it was entered before the trial even began,
19 we're entitled to know who the witnesses are going to
20 be for the upcoming two weeks and the order in which
21 they're going to be called, and that's all we'd like.
22 Also, it might be helpful if there was some
23 indication as to what the relative importance of these
24 witnesses was going to be because sometimes and
25 apparently an insignificant witness turns out to be a
1 very important one and apparently an important one
2 turns out not to be so important after all.
3 JUDGE BENNOUNA: [Interpretation] I understand
4 what you are saying, Mr. Sayers. That is, you're
5 telling us something reasonable. It would be
6 reasonable; it would be rational. It so happens that
7 the Prosecutor is confronted with difficult
8 circumstances and he explained on several occasions
9 what that was about so we all know what's going on, and
10 the difference between the reality and what is to be
11 wished. But what I would like to say to Mr. Nice is
12 that unless there is no testimony at all, unless there
13 are a few days without witnesses, preparation should
14 not be done in an improvised manner.
15 I don't think we're trying to justify here
16 the number of hearing days; that's not the problem.
17 The problem is to reach the truth within a fair trial
18 carried out under the best circumstances. I think I
19 agree with what Mr. Sayers has just said, it needs --
20 some preparatory time is necessary both for the Defence
21 and for the Trial Chamber, and that the Office of the
22 Prosecutor must do its best, keeping in mind the
23 difficulties that it is confronted with, and unless
24 there is no hearing at all, but it would be better that
25 the hearings be properly prepared and that the
1 information arrive in advance. At least that's how I
2 see things. I believe the problem is not to have a
3 record number of witnesses but rather to have a system
4 of evidence which is presented under the best
5 conditions with the best preparation and the greatest
6 fairness so that the Defence can present its case in
7 the best way.
8 I don't know whether Mr. Nice can improve
9 things further, given the difficulties that he is faced
11 MR. NICE: As matter of history, I think the
12 two-week order was pretty well immediately overtaken by
13 our supplying 60 witnesses in the proposed order which
14 was then supplanted by an even longer list, or longer
15 list. We have always drawn to the Defence's attention
16 every change in the order of witnesses as soon as we've
17 known of it, so that it's always been my intention they
18 should have much more than just a two-week running
19 order. They should have the whole order of the
20 witnesses as being forthcoming. If we stuck with the
21 order itself, it would be restrictive on them and, I
22 think, restrictive on everybody else.
23 I always do my best to ensure that they have
24 at least two weeks' notice of the witnesses, but I can
25 just give you -- I think I started yesterday -- I'll
1 give you an example of the things that have happened in
2 the last two weeks. There was somebody who couldn't
3 come because his child effectively ran away from
4 school; that was one day's notice or two days' notice.
5 There was somebody who couldn't come because a child
6 was going to visit him, and a long-planned arrangement
7 was suddenly jettisoned by him; he said, "I'm sorry,
8 I'm not coming." Then somebody has been taken on
9 military activity to a trouble spot that's arisen
10 unexpectedly elsewhere in the world, and he's suddenly
11 taken out of the list.
12 These problems are happening all the time and
13 mean that we have to reorganise the list. The
14 witnesses further down the list, some of them are
15 people who've got booked dates; that is to say, like
16 the people who are coming next week, one of them in
17 particular, he's booked his dates a long time in
18 advance, and he can't really be moved from that slot.
19 There's another witness, later on in the year, the
20 rigidity of whose timetable is absolute, according to
21 him and those who represent him.
22 Therefore the problems of juggling witnesses
23 is very, very considerable. All I can say is we do our
24 very best.
25 I think that both my friends and the Chamber
1 will be heartened to discover what I'm going to tell
2 you, in any event, about the listing of witnesses for
3 the remainder of the trial. I can either do that now
4 or later, but for the immediate forthcoming fortnight,
5 the position is as follows. Carter comes in on Sunday,
6 will be proofed on Sunday, and will start his evidence
7 on Monday. Therefore the Defence are in a position to
8 read Carter's statements, and I've instructed
9 Ms. Somers to make available a summary, in draft form
10 if necessary, on Sunday, as soon as it is available.
11 Duncan, the brigadier or general, has given
12 us just Tuesday and Wednesday. He comes in, I think,
13 on Monday night and has to be out on Wednesday night.
14 Happily, Carter is willing to be a sandwich if
15 necessary; he can, I think, stay till Friday, so that
16 if his evidence isn't finished on Monday, then he will
17 be available on Friday.
18 But although I may not be here for much of
19 next week because I'm in Jelisic, I'm going to ask the
20 Chamber and my friends, if they can, to deal with
21 Carter on Monday; maybe the only way they can deal with
22 that is by taking the summary as evidence in chief.
23 And if Friday is free, Colonel Schipper, who was here
24 yesterday and the day before but who had regimental
25 appointments to deal with today -- and they'd been
1 booked in advance, appointments to his regiment, people
2 applying, so he really couldn't stand them up -- has
3 agreed to be available on Friday. His summary or a
4 preliminary summary will be served today. So that
5 takes care of next week, and I hope one way or another
6 the days will be full.
7 For the following week, at the moment where
8 we have only sittings on, I think, Thursday and Friday
9 morning, it's Forgrave and Hay who are expected to be
10 available. So that takes us the fortnight, I'm happy
11 to say, and neither now or at a later stage I will tell
12 you what I am going to do about the listing of all
13 other witnesses.
14 JUDGE ROBINSON: Don't keep us in suspense.
15 MR. NICE: Well, the Chamber will recall that
16 the question of outstanding witnesses was raised by me,
17 and the Chamber responded to my offer of information by
18 a Status Conference. But, nevertheless, I am carrying
19 on doing exactly what I said I was going to do, which
20 was to review all outstanding potential witnesses and
21 to decide which ones, in our judgement, could provide
22 evidence that the Chamber should have and which ones I
23 could dispense with.
24 The list of those witnesses will be with you
25 not just on the week of the Status Conference, but next
1 week and I hope at the beginning of next week.
2 The list is going to be broken down into
3 various categories which I have identified in the way I
4 said I was going to; that is by looking first at the
5 material that you should have and then deciding on the
6 process by which we'll be able to make it available to
8 So there will be a list of witnesses willing
9 and to be called. They will be in the order I intend
10 to call them. And that should, broadly speaking, cover
11 the remaining witnesses for the trial. This isn't,
12 obviously, an absolutely final position. It can't be.
13 But it's where I am at the moment, in the common
15 The second category are witnesses who are at
16 present unwilling, but in respect of whom I will be
17 applying for subpoenas because I don't believe there is
18 any reason why they should not respond to a subpoena.
19 They are, I think, limited in number. One or two hands
20 at most.
21 The Chamber will recall that there might be
22 witnesses who are unwilling, who I am not prepared to
23 attempt at this moment to subpoena, because I judged
24 that they may have good reasons for being unwilling,
25 and in respect for whom I will in due course make an
1 application to have their statements read. That
2 category may be very small indeed. It may be
3 effectively one or a couple of witnesses. And that's
5 There will then be witnesses whose evidence
6 can, in our submission, properly be taken by affidavit,
7 and there are witnesses from other trials whose
8 evidence can be given by testimony. They will be
9 identified and can be --
10 JUDGE MAY: By transcript.
11 MR. NICE: I'm so sorry, by transcript. And
12 then there is then a small residual category of
13 witnesses who we may apply to deal with one way or
14 another, but about whom decisions are pending.
15 Now, that material I hope will be available
16 at the beginning of next week. It's being concluded at
17 the moment. It will, I think, provide rather
18 reassuring reading. I don't think we are going to be
19 in the event above 100 witnesses to be called overall.
20 And I remember one of the things Your Honour said at
21 one stage. And it may even be ten less than that. I'm
22 not sure at the moment. But that's the rough figures,
23 I think.
24 In addition to that material, the only other
25 evidence that has to be dealt with is evidence in
1 relation to the villages. And I've already explained
2 how I am going to be dealing with that; namely, not by
3 dossier. We better call them something else. By
4 village binders. I will have provided for everyone
5 extracts of material on a location-by-location basis
6 the villages or occasions that have been worked on by
7 individual investigators, and they, together, with one
8 of the lawyers from my team will be able at convenient
9 points in the remaining timetable of the trial to say,
10 well, in respect to Busovaca, here are the documents
11 that in light of the Tulica ruling we would invite the
12 Chamber to accept. Our proposal is that these two
13 witnesses or this witness or these three witnesses at
14 most need be called. Alternatively, may now, in the
15 judgement of the Chamber, be read, given all the other
16 evidence that's in.
17 So there will be a limited number of
18 exercises, location by location, presenting documents
19 and raising for discussion whether there are witnesses
20 who need to be called. If there are witnesses to be
21 called further on a location-by-location basis, they
22 will be limited in number and they won't take very
24 So that by next week I hope everyone will
25 have a pretty final, not absolutely final, but pretty
1 final list of witnesses to be called and in the order
2 they are to be called. And once we've gone through the
3 village binders or location binders, all the remaining
4 witnesses will be identified as well.
5 JUDGE MAY: You may also give us a date when
6 you anticipate the Prosecution closing. It would be
7 helpful. You've got our timetable of hearings,
8 although there is bound to be slippage one way or
10 MR. NICE: Yes. I haven't done a calculation
11 yet, and therefore it's only a matter of feel at the
12 moment. But I suspect we'll have something in the
13 region of 20 witnesses for the new year, but I hope it
14 won't be much more than that. In a way, that's a
15 better guide than giving a time. I've already said, I
16 think twice today, and once yesterday, the only way
17 that we can accelerate the speed of witnesses, apart
18 from -- no, there are two ways we can accelerate the
19 speed of evidence. One is by taking summaries to some
20 degree as evidence in chief. The other is by taking
21 much more limited evidence from individual witnesses.
22 I believe some of the outstanding witnesses,
23 I can't have them all in my memory, I'm afraid, but
24 some of the outstanding witnesses are witnesses who can
25 be taken to very focused points of evidence and taken
1 quite shortly. One or two of them, of course, are
2 witnesses who may be long, because they are, for
3 example, experts.
4 But I hope that's reassuring, and it may not
5 make the proposed Status Conference unnecessary, but it
6 may make it in fact more useful.
7 JUDGE MAY: Yes. Well, that's helpful.
8 Anything the Defence want to say about that?
9 It started as a response to your point, but went rather
11 MR. SAYERS: It was reassuring, obviously,
12 Mr. President. But, as you point out, it was not in
13 response to our point. Our concern is a little bit
14 more tangible, if you like. We are the ones who have
15 to prepare for the unexpected and so forth. And we
16 would like two weeks' notice to the maximum extent
17 possible. There may be, we realise, individual
18 deviants from the two week requirement, but we don't
19 think that it's unfair to insist upon what the Court
20 has ordered.
21 It makes it more expeditious to do the
22 cross-examination. We can do it more professionally.
23 It saves time. And it's what the Court's ordered.
24 JUDGE ROBINSON: Mr. Sayers, of course you
25 are right, that the original order was for two weeks'
1 notice, and I think it's only reasonable to maintain
2 it, but subject to individual circumstances that might
3 call for a reconsideration. Did you hear that?
4 MR. SAYERS: Yes, I did, Your Honour. And I
5 completely agree, but I think, to use the exception
6 rather than the rule should be that the -- we get the
7 two weeks with exceptional -- exceptions in individual
8 circumstances. Not that it should be exceptional for
9 us to get the two weeks notice. And I'm not upbraiding
10 the Prosecution. I really am not. I understand the
11 constraints under which they work. But it really puts
12 a very substantial burden upon the Defence not to have
13 two weeks' notice of who the witnesses are going to
14 be. It really does, for reasons that I don't think
15 require explication.
16 JUDGE ROBINSON: I believe we understand the
17 situation, and we have to take a fair and realistic
18 approach to it.
19 JUDGE MAY: The next point, I think, concerns
20 the use of exhibits?
21 MR. STEIN: It probably does, Judge, but in
22 comparison to the other three points which I'd like to
23 raise, it's relatively minor. Perhaps I can jump
25 Although absent from the Court, I have been
1 following the transcript with great care, and there are
2 three things that continue to crop up that I think we
3 might offer some assistance to the Court in terms of
4 expeditious treatment.
5 In quick order, they are a standing objection
6 to any evidence outside the time frame of the
7 indictment. Hearsay, a recurring issue. And last but
8 not least, most important to us, the issue of what's
9 been called facetiously tit-for-tat or the actions of
10 the Muslims and the Serbs in this regard and why it's
11 important. If I may cover them each briefly.
12 I've done a little chart I'd like to hand up
13 to the Court for its own edification. They can -- you
14 can pitch it if you find it of no utility. It's
15 essentially the amended indictment put in graphic form
16 relative to the time frame set out in the counts. The
17 time frame is different. But essentially the
18 persecution count runs from November 1991 through March
19 31 of 1994.
20 It is our position, as stated when the issues
21 come up, that any evidence outside of the time frame be
22 ruled inadmissible. We will continue to point that out
23 to the Court, but I thought this chart might be
24 somewhat useful. If not, or it's not graphically
25 clear, it's my fault. We will continue, of course, to
1 alert the Court when evidence as such comes in, but
2 because the Prosecution has styled its indictment with
3 regard to time frame differently, it's a little
4 difficult to track. It's therefore incumbent on all of
5 us to understand whether evidence is coming in pursuant
6 to the all-encompassing persecution theory, in which
7 case anything from November '91 to March of '94 is fair
8 game. Or, alternatively, it's a more precise kind of
9 evidence. The wilful killings, murder causing serious
10 injury, counts 7 through 13 having a much more
11 constrained time frame.
12 We don't want to burden the record in the
13 middle of the evidence of a witness with these
14 continuing issues, so I thought I would bring this to
15 the Court's attention at this point in time.
16 JUDGE MAY: Yes. Well, that looks helpful.
17 We will have in mind this document and we'll obviously
18 look at the evidence accordingly. But, of course, if
19 the Defence want to make an objection, they must be
20 entitled to do so, particularly if it's an objection on
21 grounds of lack of relevance.
22 MR. STEIN: Yes, Judge. And what I had hoped
23 was to persuade the Court that we have what's called a
24 standing objection. That's an United States term. For
25 evidence outside the time frame of the indictment. So
1 that we need not burden the Court each and every time.
2 On the other hand, I like to think that our
3 objections assist the Court in alerting the Court to
4 the issues as we see them. So I am not trying to
5 obviate our responsibility and just we are going to sit
6 like potted palms. On the other hand, I would like to
7 alert the Court to this issue and have a standing
8 objection to any purported evidence outside the time
9 frame of the indictment.
10 JUDGE ROBINSON: Yes. I don't like the
11 concept of a standing objection. I think the objection
12 should be taken individually in relation to a
13 particular point because the fact that there is
14 evidence outside the time frame doesn't necessarily
15 mean that it's irrelevant, but that I can see that a
16 question of relevance will arise. There could also be
17 a question of prejudice. But I think that it would be
18 more useful to take it as it arises.
19 MR. STEIN: And I understood that and
20 anticipate that different judges react differently to
21 the suggestion. I thought I'd at least hand it up to
22 the Court. We enjoy having our objections overruled.
23 We enjoy being the losers from time to time, but we
24 enjoy making them when we have to make them.
25 Moving along up the ladder is the issue of
1 hearsay. I understand, because I have seen the record,
2 the issue, the Tadic issue, that hearsay is not of
3 itself inadmissible.
4 I would just like to say this once so we
5 won't have to say it at all. The use of hearsay,
6 third, fourth hand, not only is unreliable, but it
7 makes it impossible for us to recreate the event and
8 challenge the event that's being discussed. It's
9 impossible, often, because the identity of the ultimate
10 declarant is hidden. The Court, of course, is not
11 insensitive to that.
12 Last, but not least, it has the reality
13 effect of shifting both the burden of proof and the
14 burden of presumption to us, because once hearsay is on
15 the record, then it becomes for us at the close of the
16 evidence to point out under the rules exactly where we
17 think the hearsay that has been admitted should be
18 deemed unreliable and not put in your judgement. And
19 it makes our investigation into the facts more
20 difficult when we are tracing down hearsay that is
21 third, fourth hand.
22 The issue, of course, needs to be resolved
23 each and every time it comes up, but having said what I
24 have to say, I hope the Court will have in its mind
25 these difficult issues for the Defence when hearsay,
1 which the Court usually spots before we make an
2 objection, or in conjunction with our objection, has to
3 rule on this difficult issue.
4 I understand that as a general matter hearsay
5 is not inadmissible and the Court specifically makes
6 rulings as to when it is. We are just trying to
7 persuade the Court again, and in this fashion, when we
8 have a little time, as opposed to making a speech each
9 time, to think about the difficulty and the practical
10 reality shifting of production and proof that the
11 admissibility of hearsay results in.
12 Last, but not least, and most important to
13 us, there have been several exchanges between Your
14 Honour and counsel with regard to cross-examination
15 that is trying to illicit crimes committed by Muslims
16 against Croats, or Serbs for that matter, against
17 Croats. And Your Honour has opined on a variety of
18 times the relevance.
19 I'd like to reply to that now because it's an
20 important part of our case. Crimes committed against
21 Croats, the whole side of the triangle, if you will,
22 goes mens rea, goes to motivation for acts, actions,
23 defensive or offensive position, and ultimately, and I
24 hope we never get here, goes to mitigation.
25 In summary fashion, what I am trying to say
1 is there is an entire milieu in which the actions in
2 the Lasva Valley occurred. The office of the
3 Prosecution would have you look at one part of the
4 triangle, the Croat part, saying there are offences
5 committed on all sides. Just look at the Croats.
6 That's all we are here to worry about. If you do that,
7 you will never see the entire triangle.
8 What I am trying to say --
9 JUDGE BENNOUNA: [Interpretation] Mr. Stein,
10 as regards this question, very quickly. I think that
11 the objection that was raised is not to the murder
12 committed or other criminal acts that were committed
13 against the Croats as such, but rather the fact that
14 they have been covered as such and not in relation to
15 the indictment. Because from a legal point of view,
16 the fact that there were murders of Croats does not
17 justify murders committed by Croats of Muslims or
18 Serbs. Therefore, that was the point.
19 Now, you are telling us that that relates to
20 mens rea, the defensive or offensive positions, of
21 course, but we have to start from that point and move
22 toward the murders or other criminal acts that were
23 committed against Croats and not to deal with the
24 criminal acts committed against the Croats as such, in
25 and of themselves. We have to stay with the
1 indictment. If you make the relationship between the
2 criminal acts and the indictment, of course that's
3 clear and possible, because there is the questions of
4 legitimate defence and motivation, mens rea, et
6 MR. STEIN: Perhaps it's my fault, and I am
7 trying to be clear. We are not justifying actions. We
8 did this because they did that. That is not my point.
9 What I am saying is the context in which the acts
10 occurred, while not justification for the act, and
11 again our position generally on these things is that
12 Mr. Kordic had nothing to do with it, but that the acts
13 occurred in a milieu. And you can only understand what
14 happened in the valley if you understand the milieu.
15 The question, of course, is how far into that we get.
16 Mr. Nice, in fact, opened this issue in his
17 opening at page 74, where he raised for the record the
18 question of whether the Croat complaints about the
19 behaviour of the Bosniaks and the Mujahedins were
20 "genuine and well founded or was a smoke screen."
21 So the Prosecutor's themselves have kicked
22 off, if you will, the issue, if nothing else, to set it
23 up to put it down. The statutes, of course, of the
24 Tribunal require you to look at the wilful actions of
25 the accused, whether the circumstances under which he
1 acted were unjustifiable. There is an issue of
2 military necessity. But most important, and I don't
3 think this is apparent initially until I read it
4 yesterday, the exculpatory nature of the evidence that
5 we are trying to get in goes to not only exculpation
6 but as to sentencing under Rule 101(B), (ii) and
8 101(B), (ii) and (iii) incorporate by
9 reference the concept of mitigating circumstances as
10 well as the general practice regarding prison sentences
11 in the courts of the former Yugoslavia.
12 Under Article 56, paragraph 2 of the Croatian
13 Criminal Code, and I'll quote briefly:
14 "All the circumstances which result in a less
15 or more serious punishment for the perpetrator of a
16 criminal offence, the motives for committing the
17 criminal offence, the circumstances under which the
18 criminal offence was committed, the conditions in which
19 the perpetrator had lived prior to committing the
20 offence, as well as the totality of social and personal
21 grounds which contributed to the perpetration of the
22 offence --" shall be considered.
23 And I want to be clear. I've quoted from
24 that skipping along. I mean, I haven't quoted the
25 whole paragraph. That's again Article 56, part 2.
1 JUDGE ROBINSON: In my view, Mr. Stein, the
2 issue's a very difficult legal one jurisprudentially.
3 It's not fully settled. The statute of the
4 International Criminal Court does provide for
5 self-defence to be raised as a defence, but in
6 determining the extent to which is legitimate as a
7 defence, the whole question of proportionality is
8 exceedingly important.
9 So for my own purposes I've always considered
10 it relevant, particularly when it is raised in a
11 context of defence, as a defensive strategy, but I
12 think ultimately the question of proportionality will
13 be very, very significant. But I think it's an
14 important legal issue.
15 MR. STEIN: Thank you, Judge. And that, of
16 course, goes to how you view these things. And I can't
17 do them in an abstract. I was not the scholar I would
18 like to have been at law school. The abstract is
19 difficult, the specifics in which they are raised are
20 better. But I wanted to take advantage of the time
21 that we have today without a witness present to at
22 least put this on the record fully and completely.
23 The other thing that's important from our
24 perspective and you --
25 JUDGE BENNOUNA: [Interpretation] We agree.
1 We agree that we are not conducting a trial of certain
2 Muslims or Muslims milieu that are not included in the
3 indictment. Insofar as you agree with that, that's
4 fine. You must not pull us into things which could be
5 considered outside the subject. If you are within the
6 scope of the subject, then it's fine. I think that is
7 the position.
8 MR. STEIN: I am trying to do that and I hope
9 that is what everyone understands I am trying to say.
10 The only final thing I would like to say on that is
11 some of the witnesses who come before you present our
12 only chance to ask about these issues. Theoretically,
13 we can recall them and extend the trial, but much of
14 what our case is will be made through the
15 cross-examination of the witnesses. There will be no
16 other opportunity. I don't want to have to go through
17 the difficulties that my colleague has gone through in
18 retrieving these witnesses.
19 So that I ask when Your Honour rules on the
20 issues that come up that you consider these difficult
22 JUDGE MAY: The final point, I suppose, can
23 be dealt with in this way. You can, of course, deal
24 with it in cross-examination. That does have the
25 virtue of your not having to call any evidence about
1 it. But I anticipate that, at least for some of these
2 matters, you are going to call evidence, in which case
3 then it becomes rather less necessary to cross-examine.
4 MR. STEIN: Frankly, putting together the
5 defence case as I have been, that's one of the issues I
6 wanted to raise. I now sense the Court's attitude is
7 not to preclude me from doing all of this, as long as
8 it's within the parameters of the indictment with
9 reference to a specific defence recognised or at least
10 suggested by the statutes and of this Tribunal.
11 JUDGE MAY: Yes. I am not encouraging you to
12 call up large numbers of witnesses.
13 MR. STEIN: I will call -- Judge, I will take
14 that as a touchstone for our presentation.
15 JUDGE MAY: Let me -- well, we'll have to
16 deal with all of that in due course.
17 Let me go back to the matters that you
18 indicated made this sort of evidence admissible or made
19 it relevant, and see that I've got it right. You said
20 it was relevant to mens rea, motivation, and there was
21 a third point, which I think was litigation.
22 MR. STEIN: It was meant to be mitigation.
23 JUDGE MAY: Mitigation. That makes it very
24 different. And that, of course, is the sentencing
1 MR. STEIN: Yes.
2 JUDGE MAY: I take the final point quite
4 As far as the first two are concerned, mens
5 rea, what's the relevance of it, this sort of evidence
6 to mens rea?
7 MR. STEIN: Right. The statutes under which
8 we are operating each have a defined mens rea or an
9 implied mens rea, but they each have a mental aspect to
10 them. There is wilful conduct, unjustifiable conduct,
11 and other terms. The context in which the conduct
12 occurred is either wholly just one day the Croats
13 decided to do this, in which case the Prosecution has
14 its best situation, or it's in reaction to, perhaps an
15 overreaction, but nonetheless a reaction to some other
17 It's never been my practice to lecture or to
18 suggest to the Court how to read the law. We will
19 certainly set out the law in our closing papers.
20 JUDGE MAY: Of course. Now, what I am asking
21 you to do is to apply your submissions to the law.
22 Then -- you haven't mentioned self-defence. Is that
23 part of your case?
24 MR. STEIN: In the context of what I am
25 saying, the answer is yes. Now, I want to be clear, we
1 are -- and we have to be fact specific and village
2 specific. Sometimes the answer is no. Sometimes the
3 answer is yes. So it depends very specifically about
4 where and when. And certainly the concept of
5 self-defence evolves over time as you march through,
6 from the times that the Muslims and Croats were
7 cooperating to the time that the coalitions broke
9 JUDGE BENNOUNA: [Interpretation] Don't
10 forget, Mr. Stein, that when you speak about legitimate
11 defence, this is covered by individual responsibility.
12 We are not dealing with legitimate defence of a
13 collective community or country or region. We are
14 speaking about individual criminal responsibility, and
15 it's within that framework that legitimate defence can
16 be raised.
17 MR. STEIN: And we have individual as well as
18 command responsibility issues, and the mens rea for
19 each appears and will be argued to be different.
20 JUDGE MAY: And motivation?
21 MR. STEIN: That's right, sir. Again,
22 motivation. If one morning a group of Croats decided
23 to just start up and do something, that's a clearly
24 different issue than if a village is part of a military
25 campaign, it is in an essentially strategic area,
1 indeed the attack may have gone awry or there may have
2 been more consequential damages, collateral damages
3 than anticipated. Those are the kinds of issues.
4 Now, again, every time I stand up and talk
5 about this, I want to give the big caveat that our
6 client was not in charge of the military. But to some
7 extent, in order to understand the events that went on,
8 since the Prosecution is claiming he was part of the
9 military establishment, we have unfortunately been
10 forced to have this burden on our shoulders to give you
11 a clear explication of what went on.
12 JUDGE MAY: It may at some stage be helpful
13 if you indicate -- and of course we have in mind that
14 these are foundation issues, or background issues,
15 were-the-crimes-committed issues, not issues as to
16 whether your client or his co-accused was involved in
17 the crimes. But even with that in mind, it may be
18 helpful at some stage if we have a document from you in
19 response, perhaps, to the dossiers when they come, as
20 to what it is the Defence say in each case.
21 MR. STEIN: Glad to help out, and as long as
22 we have them in a reasonable period of time that we can
23 produce a response, and reasoned response.
24 JUDGE MAY: So there is no question of doing
25 that in any hurry, but when you are able to do it.
1 Yes. Now, we shall have to have a break in a
2 moment. Were there any other issues you wanted to
4 MR. STEIN: We have two other issues on my
5 plate. I'll defer to Mr. Sayers in a moment. The site
6 visit as well as the issues regarding --
7 JUDGE MAY: I think this may be a matter
8 which is better deal with in private session.
9 MR. STEIN: Agreed. The only other public
10 issue, that we can deal with whenever Your Honour
11 directs us, is exhibits and notes and diaries; again, a
12 recurring problem that comes up.
13 JUDGE MAY: Deal with those.
14 MR. STEIN: Very good.
15 We have been put on notice --
16 [Trial Chamber confers]
17 MR. STEIN: We can tell, when we read the
18 discovery material from the witness statement, that a
19 witness has a diary or attachments to the statement
20 itself to the Prosecutor. Immediately upon reading
21 such, we send a letter to the Prosecutor: "Can we see
22 the diary or the attachments or the contemporaneous
24 We, I don't believe, save one instance, have
25 ever seen them before the witness testifies. The
1 witness comes on board with notes, a diary, and these
2 kinds of matters, referred to or not, to refresh or
3 not. But by the time we get done analysing the legal
4 issues as to whether or not we're entitled to see them,
5 we get them in the middle of the examination, problem
6 one; sometimes they're not in a language we speak,
7 problem two.
8 We are therefore requesting the Court that --
9 and suggest to the Prosecution -- that when such
10 diaries, notes, and things are patently apparent from
11 the witness statements and we ask our colleagues for
12 them, that we have them so we don't have to elongate
13 the trial fighting about them.
14 [Trial chamber confers]
15 MR. STEIN: Your Honour, before you rule, I
16 want to be clear. As to personal letters or
17 correspondence, we're not interested. As to documents
18 that have clearly been written to record events, and/or
19 handed to the Prosecution, or documents or notes or
20 attachments that are actually part of the statement
21 given to the Prosecution, we believe that these are
22 important. And certainly if the Prosecution has an
23 objection, they can tell us by way of a written
24 response. But we're not getting these things in time
25 to effectively use them and analyse them for your
2 JUDGE MAY: Well, I think we've already dealt
3 with this, that clearly, if the Prosecutor has material
4 which should be disclosed from a witness, then they're
5 under a duty to disclose it. If, on the other hand, as
6 does seem to happen, the witness has a diary, which he
7 either brings with him or not -- if he doesn't bring it
8 with him, there's nothing anybody can do with it. If,
9 on the other hand, he does bring the diary and refers
10 to it in his examination, then it's in issue as to
11 whether you should be able to look at it or not. It
12 would partly depend on whether there is any private
13 matter; in most cases not.
14 I suspect that the difficulty is that the
15 Prosecution don't have sight of this or knowledge of it
16 until the witness comes.
17 Mr. Nice, is that broadly the position?
18 MR. NICE: That is indeed broadly the
19 position. Wherever material is available and is
20 effectively part of the statement, we serve it.
21 Wherever there is a request made by the Defence for a
22 diary or similar document that is apparently identified
23 in the statement, we convey the request to the witness,
24 as soon as we get the request from the Defence, and
25 respond in accordance with what the witness tells us.
1 Wherever a witness turns up with his diary, we ask if
2 he wishes to refer to it and if he wishes to make it
3 available to us.
4 I think that's the appropriate regime for us
5 to continue. But I have no desire to keep material
6 back and every desire to make material available
7 because it accelerates the process.
8 JUDGE MAY: I think we have the point.
9 MR. STEIN: Very good, sir.
10 JUDGE MAY: Now, is there anything else in
11 open session that anybody wants to raise?
12 MR. STEIN: I think the rest should be in
13 closed session, if Your Honour so chooses.
14 JUDGE MAY: Provided it's not a lengthy
15 matter, we'll deal with it before the break.
16 Very well. Go into closed session.
17 [Closed session]
13 pages 9600-9603 redacted – closed session
17 --- Whereupon the hearing adjourned at
18 11.05 a.m., to be followed by an
19 ex parte