1 Tuesday, 30
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.08 a.m.
5 JUDGE MUMBA: The registrar, please call the
7 THE REGISTRAR: [Interpretation] Case
8 IT-96-23-T, IT-96-23/1-T, the Prosecutor versus
9 Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.
10 JUDGE MUMBA: Thank you.
11 Yes, the Prosecution.
12 MR. RYNEVELD: Yes, Your Honour. I might say
13 that the Prosecution, of course, heard what the Trial
14 Chamber indicated to us at the close of proceedings
15 yesterday and we've had the opportunity to reflect upon
16 it, and accordingly we have decided, out of an
17 abundance of caution, to cancel the witness we had
18 proposed to call today, Dr. Cleirin, in light of the
19 comments of the Court yesterday. So we have cancelled
20 her for today.
21 We do, however, think that there are some
22 aspects of the report that may be of assistance to the
23 Court and may well be the subject of productive
24 discussions with our learned colleagues from the
25 Defence. Perhaps there may be some areas where we can
1 come to some agreement with respect to whether or not
2 there were aspects of the report that have a probative
3 value capable of weight by this Court, and that may be
4 of assistance to you. It may be that we would propose
5 that we utilise the time over the pending break and
6 that we might deal with those issues after 105 has
7 testified, when I understand that the matter next
8 proceeds on the 13th of June, I believe it is, of this
10 That is basically our position, and I suppose
11 I should ask the Court -- I have acted pre-emptively in
12 cancelling Dr. Cleirin, in light of our decision -- but
13 I would have the Court's concurrence that we have, in
14 fact, done so appropriately in light of our decision
15 not to call her at this time.
16 JUDGE HUNT: Mr. Ryneveld, may I suggest this
17 in relation to the discussions you're going to have
18 with the Defence counsel.
19 MR. RYNEVELD: Yes, please, Your Honour.
20 JUDGE HUNT: Article 5 does not require you
21 to prove that the rapes were widespread; it only
22 requires you to prove that the armed conflict against
23 the civilian population was widespread. The evidence
24 that you or Ms. Kuo suggested was going to be available
25 from this witness' evidence seemed to be an attempt to
1 establish that the rapes were widespread.
2 MR. RYNEVELD: Well, Your Honour, quite
3 clearly our position throughout has been that we're
4 quite aware that it's the attack on the civilian
5 population, under Article 5, that is at issue --
6 JUDGE HUNT: And the attack that you've been
7 seeking to prove here, as I understand it, is the
8 detention of the women and the mistreatment of the
10 MR. RYNEVELD: Absolutely. Rape is only one
11 of the constituent ingredients in the widespread or
12 systematic attack. We have both options, widespread or
13 systematic. But even if we were to talk about
14 widespread, it is not just the rape; it is the
15 gathering of the individuals, the detention of them in
16 various camps, the mistreatment of them at the various
17 camps, of which, when it comes to the women, includes,
18 but not exclusively, the rape, the systematic means by
19 which these rapes allegedly are carried out. That is
20 part of the submission that -- of course this report
21 talks about all kinds of aspects that we think are of
22 probative value to the Court and which do not focus
23 exclusively on the issue of whether or not various
24 women were raped by individuals other than these three
25 accused in other parts of Bosnia-Herzegovina.
1 JUDGE HUNT: But then if I may just emphasise
2 what I think I said to Ms. Kuo yesterday: We do have
3 to be satisfied beyond reasonable doubt that the
4 attacks were widespread.
5 MR. RYNEVELD: True.
6 JUDGE HUNT: Now, that doesn't mean we have
7 to be satisfied beyond reasonable doubt in relation to
8 each item of evidence that you tender in order to
9 establish that fact. It's the ultimate fact that the
10 armed conflict was directed against the civilian
11 population that has to be proved beyond reasonable
12 doubt. But I myself fear that an assertion as you get
13 to the periphery of the area that you needn't have as
14 much proof, that does not appeal to me, if I can put it
15 that way.
16 MR. RYNEVELD: I understand completely Your
17 Honour's comments. However, perhaps we may be able to
18 more precisely identify the extent to which we think
19 that other aspects of this report may be of assistance
20 to the Court in the issue of the either widespread or
21 systematic attack on the civilian population.
22 It seemed that yesterday's discussion was
23 focused primarily on the issue of proving rapes, and
24 that may be just the way in which it came up. I'm not
25 sure whether we adequately addressed the multipurpose
1 aspect of this report in that its reliability and
2 probative value lay in the broader, wide spectrum of
3 the attack by Serbian perpetrators on a Muslim civilian
4 population, which is part of the bigger Article 5 issue
5 that we have to prove; the specific rapes in this case
6 being only one of the aspects by which this widespread
7 or systematic attack on the civilian population can be
9 Now, the other thing that needs to be said is
10 that we were not attempting to use this report to prove
11 that any one of these three accused did anything
12 against the victims that have testified. That is
13 self-contained within the evidence that has already
14 been given, that's been cross-examined upon, and that
15 this Court will have to make findings of credibility,
16 reliability, probative value, and ultimately whether or
17 not the Crown has established their case beyond
18 reasonable doubt with respect to that aspect of the
20 But this report, perhaps the Presiding Judge
21 yesterday was closest to it by indicating that its
22 previous purpose was to put in the historical context,
23 and it may be that that is how it's gone in before. In
24 any event, we feel that the report has a wider
25 application than merely its historical context, but it
1 should at least go in for that purpose. I don't want
2 to say that that's the limited purpose for which it
3 should go in but we would like an opportunity to
4 discuss that with our friends during the break. Of
5 course, since last night and this morning there hasn't
6 been sufficient time to identify all those areas which
7 we say are reliable and are probative.
8 I've just outlined to you, as briefly as I
9 can, what we may be able to accomplish during the break
10 which is scheduled in any event.
11 JUDGE MUMBA: Yes. Thank you very much.
12 Because what all of us have to bear in mind is that the
13 trial before this Trial Chamber is on the charges, the
14 specific counts, so our concern is to establish that,
15 and the concern from the Defence is to disprove that.
16 MR. RYNEVELD: Absolutely. I just want to
17 make sure that my friends didn't somehow think that we
18 were trying to put this report in to prove that their
19 three accused -- that this is a document which proves
20 that their three accused were guilty of the crimes with
21 which they are charged, other than as it relates to the
22 widespread and systematic pattern. That's its only
24 JUDGE MUMBA: Thank you. So the Prosecution
25 case will continue on Tuesday, the 13th, with one of
1 their witnesses, and maybe another or with documentary
3 MR. RYNEVELD: That is our hope, yes. Thank
4 you, Your Honour.
5 JUDGE MUMBA: Yes, Mr. Jovanovic.
6 MR. JOVANOVIC: [Interpretation] Your Honour,
7 perhaps this is not the right time but yesterday I was
8 a bit late. At the very end of the hearing yesterday I
9 wanted to address the Trial Chamber but I was too
10 late. It relates to the incident that occurred on the
11 24th of May this year, when the expert witness,
12 Mr. Nogo, was being questioned. With the permission of
13 the Trial Chamber and thanks to the instructions of His
14 Honour Judge Hunt, I discussed this with my client, and
15 I wish to inform you of the following:
16 Immediately after the hearing I talked with
17 my client. After that I had yet another meeting with
18 him on Friday when I called on him in prison. When I
19 talked to him immediately after the hearing, I also
20 talked to the secretary of the Chamber, Diane. I also
21 wish to say that when I talked to my client, I realised
22 that his reaction was quite spontaneous because my
23 client has some information related to Mr. Nogo and the
24 unit that he commanded.
25 We are truly sorry if this looked in a
1 different way and if Mr. Nogo had the impression that
2 he was being threatened. There was no desire to do
3 this; there was no intention to do this. I also wish
4 to express my regret over the fact that such an
5 incident occurred.
6 Please accept our assurances that in the
7 future such situations will not repeat themselves.
8 JUDGE MUMBA: Thank you, Mr. Jovanovic,
9 because the Trial Chamber takes it that the Defence
10 counsel has a duty to make sure that his or her client,
11 or their clients, behave themselves during
12 proceedings. Mind you, everything that goes on here is
13 on camera and it's very easy to play the tapes and see
14 how everybody is behaving. Also the Judges do get
15 concerned about the conduct of the accused persons
16 whilst in court because it's very easy to commit
17 contempt; it's very easy to give away your guilt or
18 innocence by your own conduct.
19 Thank you. That is the close of the matter.
20 --- Whereupon the hearing adjourned at
21 10.19 a.m., to be reconvened on Tuesday,
22 the 13th day of June, 2000, at 9.30 a.m.