1 Friday, 18 May 2001
2 [Evidentiary Hearing]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.46 a.m.
6 JUDGE WALD: Good morning counsel, defendants, technicians, fellow
7 Judges. I have just a few very brief announcements before we hear our
8 third Defence witness in closed session. The announcements are as
9 following: Judge Pocar will not be with us today due to urgent personal
10 reasons and so proceeding under Rule 15 the other members of the Appellant
11 Tribunal, Judges Vorah, Nieto-Navia, Liu and myself have agreed that we
12 will continue. Judge Pocar will be able to view the entire proceedings
13 and to listen to them through the audiovisual mechanism.
14 The second announcement I would like to make is that I would hope
15 we could hear the third Defence witness this morning and still have time
16 to hear Mr. Abell's arguments about the 92 bis and the rebuttal witnesses
17 and the Prosecution's reply before lunch. The Judges would then have some
18 time during lunch to confer and then we would reassemble after lunch we
19 would give you our decision and we would proceed following that decision.
20 That means, I think, Mr. Abell, that if it is possible for you to,
21 with this third Defence witness, to expedite matters, we would much
22 appreciate that.
23 MR. ABELL: I will try my hardest.
24 JUDGE WALD: Good. The third announcement I would like to make
25 deals with the schedule. So this is notice. We would intend at the
1 moment to issue, a week from, now a scheduling order for the main
2 supplementary briefs and oral argument in the main part of the case. This
3 is in accord with what you said yesterday, but with the dates perhaps
4 slightly more specific.
5 The following Monday or Tuesday or whatever -- which would be the
6 25th -- 28th or 29th, we will bring down our decisions dealing with the
7 applications on Witness AT, any other pending applications for additional
8 evidence, and any remaining issues on 92 bis statements or other pending
9 motions. I think that would allow the parties to be able to take full
10 account of those in pursuing their briefing schedule.
11 We've done this because it is the only way in which we can all
12 accord with the absolute briefing time limits and still have the oral
13 argument in this appeal before the UN holidays which will then allow us to
14 bring down the appeal decision in the fall.
15 I don't have anything else at this point and I believe the third
16 Defence witness is in closed session. So Madam Registrar, we'll proceed
17 along those lines and you'll tell us the pseudonym for the third Defence
19 THE REGISTRAR: Yes.
20 [Closed session]
13 Pages 360-414 – redacted – closed session
17 [Private session]
13 Pages 416-438 – redacted – private session
6 --- Recess taken at 1.16 p.m.
7 --- On resuming at 2.20 p.m.
8 JUDGE WALD: Good afternoon, everybody. We have some
9 announcements to make.
10 We're in open session now, Madam Registrar?
11 [Open session]
12 JUDGE WALD: Following upon the discussion that we had this
13 morning, the Appeals Chamber has consulted during the noon hour and has
14 arrived at the following two conclusions: Number one, as to the "92 bis
15 statements," I put in quotation marks, it's not yet fully developed how
16 much or how closely 92 bis governs proceedings in Rule 115 proceedings,
17 but the Appeals Chamber will take under careful consideration all of the
18 arguments that have been made, both written and oral - there is much
19 sorting out to be done - and it will render a decision, as I said, before
20 within the next week to ten days, statement by statement, on 92 bis
21 If in the ensuing week, I'd say just up until a week from today,
22 the Defence comes upon any startling new information relative to the
23 92 bis statements, then it may apprise the Chamber of them.
24 Now, as to the witnesses, we have been reflecting with great care
25 upon the argument made that the Defence did not, through no fault of the
1 Prosecution whatsoever since the Prosecution was not informed that it had
2 the right to call rebuttal witnesses until, I think, the May 11th
3 Scheduling Order, but that given the nature of some of the issues involved
4 and some of the testimony that we have heard, it may well be that in the
5 interests and fairness, the Defence needed more time to prepare for the
7 For that reason, we have decided to adjourn the calling of the
8 rebuttal witnesses and their cross-examination to next Friday morning at
9 9.30 in this same courtroom. At that time, we will pursue the same
10 procedure we had intended to pursue, but we have deliberated, and we
11 believe that the extra week will provide the Defence with a fair amount of
12 time in total so that a reasonable argument cannot be made that they have
13 not had adequate time to prepare for the cross-examination.
14 We certainly were willing to afford Mr. Abell a choice if he
15 wanted to proceed with the cross-examination today as to any one of the
16 witnesses, but it's my understanding that he does not. You can just say
17 yes or no to that, Mr. Abell.
18 MR. ABELL: No.
19 JUDGE WALD: Right. Okay. That was my understanding.
20 So we will proceed, however, next Friday, and I do want to
21 emphasise that we have also seriously considered and have arrived at a
22 firm judgement that cross-examination of the witnesses will proceed next
23 Friday but that there will not be, in fact, any right to call new Defence
24 witnesses in a kind of surrebuttal.
25 Our feeling is that Rule 115 has to have an end at some point and
1 that this procedure will have given the adequate amount of fairness to
2 both parties.
3 We regret very much the inconvenience that this has caused to the
4 witnesses who were called and were prepared to testify today, and we only
5 believe that it's necessary in the balance of fairness. We emphasise
6 again that the Prosecution was in no way to blame, if that's the word, for
7 this turn of events, but we do think that this is probably the most fair
8 proceeding, and in that case, I don't believe there's any more business to
9 be transacted today.
10 The rest of the scheduled that I talked to you earlier about will
11 go forward. We will put out a briefing schedule at the end of next week.
12 We will come down with decisions on AT and other pending motions. We will
13 come down with decisions on 92 bis and on any other exhibits which have
14 not been formally admitted into the proceedings, and we will hear these
15 additional witnesses next Friday.
16 With that, I think we'll adjourn.
17 MR. CLEGG: Could I --
18 JUDGE WALD: Yes. Sorry. Mr. Clegg.
19 MR. CLEGG: Before you adjourn, could I just indicate that it
20 would be virtually impossible for me to be here next week. I hope the
21 Chamber won't regard it as any discourtesy if co-counsel --
22 JUDGE WALD: Certainly not. We would be delighted. Not that we
23 won't miss you, Mr. Clegg, but we would be delighted to have your
24 co-counsel here in your place. Thank you.
25 --- Whereupon the Evidentiary Hearing adjourned at 2.25 p.m.