1 Friday, 27th February 1998
2 (2.30 pm)
3 THE REGISTRAR: The case number IT-97-24-PT.
5 MR KEEGAN: For the Prosecution, I am Michael
6 Keegan, assisted by Ms Sutherland.
7 JUDGE MAY: Tell us again with the microphone
8 on so it is recorded.
9 MR VUCICEVIC: Dusan Vucicevic, on behalf of
10 the defendant, today with Defence is appearing
11 Professor Anthony D'Amato of Chicago.
12 JUDGE MAY: Can the accused hear in a
13 language that he understands?
14 MR KOVACEVIC: Yes.
15 JUDGE MAY: There are two motions which the
16 Chamber has before it today. The first is the
17 Prosecution motion to amend.
18 There is some problem with the mechanics.
20 The position, as I understand it, is that the
21 simultaneous transcription is, of course, being made
22 but it is not showing on the screens and it does not
23 seem to me necessary that it should, so we will
25 I was saying that there were the two motions:
1 one from each party. It would seem sensible to start
2 with the motion to amend. We will consider the other
3 motion in due course.
4 Mr Keegan, that is your motion.
5 MR KEEGAN: Yes, thank you, your Honour. The
6 Prosecutor, as indicated in her submission of 28th
7 January, respectfully requests leave to amend the
8 indictment in the subject case, for the purposes of
9 adding counts 2 through 15 to the indictment.
10 I assume, having not actually heard anything
11 but getting the official copy, that our request to file
12 the reply was accepted.
13 JUDGE MAY: Yes, we will, for the purposes of
14 this argument, we will certainly accept that.
15 MR KEEGAN: Thank you, your Honour. In which
16 case I will endeavour not to repeat anything in the
17 reply in my submissions today.
18 MR D'AMATO: I have not received a copy of
20 JUDGE MAY: Have you not received a copy
21 Mr D'Amato?
22 MR D'AMATO: No.
23 JUDGE MAY: Can you use the microphone,
24 please, and tell us the position?
25 MR D'AMATO: We have not received a copy of
1 the reply.
2 JUDGE MAY: You must have a copy. We will
3 hear what the Prosecutor has to say. Then, if you want
4 an opportunity to study the document, of course, you
5 shall have it.
6 MR D'AMATO: Your Honour, may I have it now?
7 JUDGE MAY: Yes. Do we have a copy?
8 MR KEEGAN: Yes, your Honour. I presume it
9 is in the mail box for the Defence downstairs.
10 JUDGE MAY: Mr Keegan, I understand that one
11 of my colleagues does not have it either, but it has
12 been handed in. Do we have a copy?
13 In those circumstances, Mr Keegan, it may be
14 just as well if you would refer to that document and go
15 through it, briefly indicating your argument on it.
16 MR KEEGAN: Yes, your Honour.
17 The nature of the reply, your Honour, was of
18 course a reply to the Defence response to the
19 Prosecutor's request for leave to amend. In substance,
20 the position of the Prosecutor is, first, that the
21 Article 9(2) of the International Covenant on Civil and
22 Political Rights is inapposite here. That provision of
23 the Covenant is focused on insuring the right to
24 personal liberty; that is, the province of unlawful
25 arrest and detention.
1 The notice requirement under Article 9(2) is
2 focused solely on that issue. In this case, this
3 accused was lawfully arrested, pursuant to an arrest
4 warrant issued as a result of a confirmed indictment.
5 Upon his arrest, he was notified of the reasons for his
6 arrest and given a copy of the indictment in his own
7 language. Subsequent to that time, as this Chamber
8 well knows, he has certainly exercised his right to
9 challenge the lawfulness of his pre-trial detention.
10 The notification to the accused and the
11 service of the indictment upon him at the time of
12 arrest, satisfied the requirements of Article 9(2) and
13 that ends the application of that particular
15 The Defence attempt to transpose that notice
16 requirement in Article 9 into some larger limitation on
17 the right of the Prosecution, or even conceivably the
18 court, to amend an indictment at a later date is
19 misguided and incorrect.
20 The right to amend indictments is recognised
21 by every jurisdiction. In each matter, the question of
22 the amendment is generally judged against one
23 particular criterion and that is, as mentioned in our
24 reply, whether there would be substantial prejudice to
25 the right of an accused to a fair trial or, as it might
1 be phrased in the United Kingdom, whether there would
2 be injustice to the accused as a result of the
4 In our circumstances, given the provisions of
5 Rule 50, which, as a result of an amendment, would
6 restart the pre-trial clock, the 60-day clock, if you
7 will, and the rights of the accused pursuant to Rule
8 72, to challenge both the indictment both as to its
9 form and substance through pre-trial motions,
10 sufficiently to protect the rights of the accused in
11 this matter. The right of the accused to prepare and
12 present to defence similarly would not be substantially
13 impaired by this amendment.
14 The additional charges arise out of the same
15 basic circumstances and facts as the original
16 indictment and there would be ample time, if necessary,
17 for the Defence to conduct its investigation.
18 The obligation of the Prosecution in this
19 matter is not simply to lay any charge against an
20 accused but the most appropriate charges which he
21 believes best reflects the conduct of the accused.
22 In this matter, both the international
23 community and the accused have the right to a fair
24 trial. The question of a trial without undue delay or
25 speedy trial as the Defence refers to it is also
1 a basic right in every system. Undue delay is relative
2 to the processes of each system and the circumstances
3 of each particular case.
4 It is a fact that history will not judge us
5 by how quickly we conducted our cases here but how just
6 our system and our judgements are.
7 JUDGE MAY: Mr Keegan, I think you must
8 address the question of delay in this case. The
9 history is this: this accused was arrested in July of
10 last year, the indictment having been reviewed and
11 confirmed as long ago as March last year.
12 The position is this: a year, or nearly
13 a year, after the indictment was reviewed and
14 confirmed, and some six to seven months after the
15 arrest of the defendant, you now seek to amend the
16 indictment. This amendment is not the addition of
17 a count or something of that sort; it involves what is,
18 in effect, the substitution of a new indictment.
19 Now, the question of delay is clearly
20 important. There is an obligation, of course, for
21 a trial to be fair, but there is also an obligation for
22 it to be expeditious. With this sort of delay, how can
23 the Prosecution justify an amendment at this late
25 I say "you"; of course, the criticism is not
1 directed at you personally, Mr Keegan, but, at the
2 Prosecution generally. How is it you could justify
3 such a delay in a case of this sort?
4 MR KEEGAN: Yes, sir. I think, as
5 I indicated earlier, that in each case the question of
6 undue delay must be looked at in terms of the processes
7 of the particular system itself, as well as the
8 circumstances of each case.
9 In this case there are, in fact, a number of
10 circumstances which have impacted on the decision of
11 when to submit an amendment.
12 As is clear from the amendment we indicated
13 at the earliest stage of our intention to amend the
14 indictment. In fact we notified counsel at our first
15 meeting of that intent and the basic nature of the
16 articles and the concept we would include in an
17 amendment for the purposes of providing notice.
18 Of course, in the early days of this case, we
19 had a change of Trial Chambers which negated the delay
20 of motions which were already existing which were
21 transposed to this Chamber.
22 We had a question of whether the accused was
23 going to submit to an interrogation, which he
24 ultimately chose not to do, which is his right, but
25 that would also affect the question of when to bring
1 forth an amendment.
2 Then there was the issue of the accused's
3 request for release from pre-trial detention based on
4 the allegations of his serious medical condition. This
5 office already had, in fact, experience in the case of
6 General Dzukic, with an accused who did arrive who did,
7 in fact, end up being terminally ill and was released
8 as a result of that. In that case also there was a
9 pending amendment, but it was prudent to wait until the
10 decision on provisional release based on health was
11 issued and we, in fact, made that statement to this
12 Chamber and to the Defence as early as the beginning of
13 October, if I recall correctly, that we preferred to
14 wait until after the issue of provisional release was
15 determined. Because in our view, if the accused was
16 released based on the seriousness of his medical
17 condition it would directly impact on whether or not
18 there was any purpose in an amendment.
19 There are a number of factors which weigh in
20 the decision; whether this Trial Chamber accepts all of
21 those or any of those as relevant criteria, of course,
22 is your decision.
23 The point is, as I indicated, the crux of the
24 determination at this point, we believe, whether or not
25 the grant of the amendment would have substantial
1 prejudice or result in injustice to this accused with
2 regard to his right to a fair trial.
3 We submit it would not, because of the fact
4 that we are still in the pre-trial stage and the
5 protections that Rule 50 gives by virtue of restarting
6 the clock to the accused and his right to challenge
7 this indictment, because there are two separate stages
8 here: one is the question of the confirmation of the
9 proposed indictment; the second would be whether any or
10 all of that indictment survives challenges by the
11 accused, if they so bring them by virtue of Rule 72, or
12 what other motions they may bring with respect to
13 jurisdiction and other issues.
14 There are many issues still to be resolved
15 here that may affect the ultimate trial. The question
16 here is whether this accused would still have -- be
17 able to achieve a fair trial under our processes with
18 the grant of the amendment.
19 JUDGE MAY: You, no doubt, say that any
20 unfairness to the accused could be cured by an
21 adjournment of the trial sufficient so that his Defence
22 could be prepared.
23 There are two points about that: the first is
24 that the adjournment, given the size of the amendment
25 which you are asking for, would have to be for
1 a considerable time. Mr D'Amato in his brief speaks of
2 seven months. That does not seem unreasonable, given
3 the size of the case.
4 That means that we would be looking at
5 a trial, if the amendment were to be granted, in
6 October, the accused having been arrested last July.
7 Now, that cannot be expeditious. Therefore, there is
8 a distinction between producing a trial that would be
9 fair to both sides and one that is expeditious.
10 The second point, one that Mr D'Amato makes
11 in his brief, is because there has been such a delay in
12 producing these amendments, the Defence have not had
13 the opportunity which they would otherwise have had of
14 gathering evidence and preparing for an amended
15 indictment which contains all these new counts.
16 Now, that is a potential unfairness, is it
17 not, and one that cannot be cured.
18 MR KEEGAN: If those were, in fact, the
19 circumstances, your Honour, yes, that would result in
20 injustice to the accused. But for the same reason
21 which the Trial Chamber may challenge the Prosecution's
22 assertions as to length of delay, resources needed or
23 any other aspect of its preparation of a case, relative
24 to the right of the accused to an expeditious trial, we
25 believe the Trial Chamber can challenge the Defence to
1 substantiate its assertions.
2 There is a question whether or not another
3 seven months is necessary. All the additional charges
4 flow from the basic facts and circumstances as to
5 genocide. The nature of proof involved in a genocide
6 count will flow over into all of these charges. If you
7 look at the nature of the indictment, the background
8 facts and the preparatory facts for each of the
9 charges, all relate back to the same basic
10 circumstances which occurred in Prijedor.
11 This Defence team has been to Prijedor on
12 a number of occasions already, conducting defences, as
13 they indicated in their communications with this
14 Chamber and with the Prosecution.
15 Certainly, they now understand the nature of
16 the witnesses who were prepared to testify both as to
17 the accused's actions, his character and all the other
18 related factors which would are been necessary for
19 Defence in -- for the genocide charge. Those factors
20 are still going to be applicable to these additional
21 charges. A factor that also plays into the right or
22 the obligation of the Prosecution is, unlike state
23 jurisdictions where the police and prosecution and
24 court, as arms of the state have great control over all
25 aspects of the investigations and the accused, the OTP
1 and in fact the Trial Chamber, in some respects, do not
2 have that same type of leverage of authority.
3 We believe in making determinations about
4 what is undue delay or what is reasonable in light of
5 the circumstances, one must account for the changing
6 opportunity that are available to the Prosecution in
7 its investigations, including the ebb and flow of state
8 communication. The Office of the Prosecutor is
9 continuing to investigate this case, like every other
10 case, up until the end. We will continue to
11 investigate up to the date of final judgement, as is
12 our obligation, because of the nature of this
14 This factors into the question of timing of
15 the submission of an amendment. If there are other
16 justifications for delays, like the issue of the
17 provisional release here, which was a real question for
18 many months, it is a question for the Prosecutor to
19 decide whether it is appropriate to issue an amendment
20 at a particular time or to continue investigation to
21 see what that evidence may develop with respect to the
23 All those factors we believe should be
24 considered in the question of whether it is undue
25 delay. In this circumstance, how much more time is
1 necessary for the Defence to complete its preparation
2 of its defence, given the related nature of the facts
3 which form the basis of all of these charges.
4 Many of the charges, of course, if they were
5 in a state jurisdiction, would probably, as a result of
6 a Statute lessor, included defences and would have been
7 natural alternative charges in jurisdictions to begin
8 with. We do not have that here. One cannot make that
9 as a blanket statement, but if one looks at the
10 amendments, one would certainly see that, for example,
11 the homicide, the murder offences, the other serious
12 bodily injury offences would in many jurisdictions be
13 related offences to the same or similar facts.
14 I think all those factors which exist in
15 other jurisdictions which do not exist here should be
16 considered in those questions about whether there is
17 undue delay.
18 JUDGE MAY: One other matter I want to raise
19 with you is this: it might be argued that the amendment
20 was delayed because of the difficulty of obtaining
21 evidence, or the fact that you had not the evidence to
22 file your amendment. But, as far as I can see, most of
23 the supporting material is evidence which you had in
24 your hands before the arrest.
25 MR KEEGAN: That is correct, your Honour.
1 JUDGE MAY: So it is not a case where you are
2 saying that there is new material which has come to
3 light which has caused us to amend the indictment.
4 MR KEEGAN: No, your Honour. I am suggesting
5 opportunities opened up which might render better or
6 alternative forms of evidence. For example, if we now
7 come into possession of documents in the last recent
8 months, that would supplant witness testimony which
9 would be the necessary form of information. For the
10 purposes of an indictment that might be the preferable
11 form to submit with the indictment, reducing the risk
12 of exposure of a witness prior to the commitment of
13 a trial.
14 So, I am simply saying that the purpose of
15 a continuing investigation simply raises or opens up
16 the options available to the Prosecutor in reaching her
17 determinations. Yes, you are absolutely right. We
18 processed prior to the last few months the information
19 necessary for the amendment.
20 JUDGE MAY: Why was the matter not tended to
21 more quickly? As I have said, in effect, you are
22 substituting a new indictment. This could have been
23 done a very long time ago.
24 MR KEEGAN: Your Honour, the answer to that,
25 your Honour, that I can make, is that it was the best
1 judgement of the members of the Prosecution given our
2 experience over the last four years, that, given the
3 other issues in this case that were going on at the
4 beginning, that it was preferable to continue the
5 investigation and wait and see what would happen with
6 the accused in the initial stages, whether he would be
7 released or not, before we submitted the amended
9 At the time when it became clear he would
10 remain in custody, we then submitted. We made our
11 intentions clear back in October, as early as I can
12 recall. Prior to that, the notice we intended to amend
13 had been made from the very beginning days to give the
14 Defence -- to put them on notice that they would have
15 the opportunity to act accordingly. Presumably
16 a prudent Defence counsel when making trips to
17 Prijedor, knowing the intentions of the Prosecution, is
18 going to act accordingly. We believe those are
19 relevant questions for the court also to determine.
20 JUDGE MAY: Whether prudent Defence counsel
21 could have anticipated such a large-scale change in the
22 indictment, I do not know. I rather doubt.
23 MR KEEGAN: Our discussions were fairly
24 candid. We made it clear we intended including the
25 charges that are there, from our very first meeting.
1 I was simply going to move on to Rule 50, if
2 you would like to ask questions at this stage, please,
3 your Honour.
4 JUDGE MAY: Yes, you can go on.
5 MR KEEGAN: With respect to the actual
6 confirmation process, your Honour, Rule 50 -- the
7 amended Rule 50 because, of course, it has changed
8 since we began this case and in fact since the Defence
9 raised its motion for clarification under Rule 50 --
10 the revised Rule 50 addresses only the mechanics for
11 the amendment of an indictment dependent on the status
12 of the indictment and of the accused.
13 It does not alter the standard or the manner
14 of review of the -- or the obligation of the
15 confirming judges if it is before the Chamber. That
16 obligation is still derived from Article 19 of the
17 Statute and Rule 47 of the Rules of Procedure and
19 Article 19 indicates that if a judge is
20 satisfied that a prima facie case exists, he or she
21 shall confirm the indictment. Neither Article 19,
22 Rule 47, nor Rule 50 make any provision for the right
23 of an accused to contest the confirmation process or
24 the supporting material.
25 Under Rule 50(A), by its language, that after
1 initial appearance the request for leave to amend
2 should be done by way of motion, would indicate that
3 the Defence has an apparent right to comment upon or
4 object to the request for leave, itself. At that
5 stage -- that is, the nature of the objection only
6 being to the request for leave to amend and not to the
7 substance of the indictment itself -- the only viable
8 objection from the Defence is that the very fact of an
9 amendment itself will substantially prejudice the right
10 of an accused to a fair trial. That should be the only
11 question here. Absent such a finding, the Trial
12 Chamber should then move on to the confirmation process
13 in which it is guided by Article 19 and Rule 47.
14 Interestingly, reading of Article 19 and the
15 two Rules I mentioned, raise the issue of whether
16 a judge can deny a confirmation for any reason once he
17 or she is satisfied there is a prima facie case.
18 If a judge cannot deny a confirmation for any
19 reason other than lack of a prima facie case it then is
20 clear that the right of an accused to object flows
21 directly from the right of an accused to a fair trial.
22 That would be handled through Rule 72, preliminary
23 motions, by way of objection to the form or substance
24 of an indictment.
25 We believe, however, that all of the factors
1 we have discussed prior would be necessary for the
2 court to consider prior to making a determination of
3 whether the very fact of leave to amend would
4 substantially prejudice the right of an accused to
5 a fair trial.
6 It is the position of the Office of the
7 Prosecutor that in a situation of a post-appearance
8 request for leave to amend, post-initial appearance,
9 that the Defence has absolutely no right to receive the
10 supporting material or to object to the basis of the
11 indictment at confirmation. That is consistent with
12 the confirmation process under Rule 47 in the other two
13 instances under the Rules, which are, of course, prior
14 to the time an indictment is actually confirmed or the
15 appearance prior to an initial appearance of the
17 In this case, we provided the materials to
18 the Defence with our request for leave to amend because
19 of the background in this case. The Defence had
20 clearly made it an issue from the early days. Rather
21 than go through what would have been the obvious motion
22 to provide the materials had we not done so, in an
23 effort to simply speed up the process, we provided
24 them. But it is the position of the Office of the
25 Prosecutor, as we have done in other cases pending
1 before the Chambers, that they have no right to the
2 materials nor any right to comment on the confirmation
3 process, itself. Thank you, your Honours.
4 JUDGE MAY: Thank you, Mr Keegan. Now, who
5 is going to deal with this on behalf of the Defence?
6 MR D'AMATO: Your Honour, may we split the
8 JUDGE MAY: If you wish.
9 MR D'AMATO: Thank you, very much.
10 Then I will address the objection to the
11 leave to amend, which Mr Keegan says at least relevant
12 under the fact that this is a motion to amend.
13 Mr Keegan has referred to the conversations
14 we had and I was very happy to have those conversations
15 back in September and to receive all the supporting
16 materials and I thanked him for that. I think the
17 openness and transparency of the trial is a great
18 asset, and I wanted to work very closely with the
20 I was not ever going to comment on our
21 conversations, on the substance of our conversations,
22 because I felt that those were off the record. But
23 since Mr Keegan has commented on them rather fulsomely
24 right now, let me rise to object to some of the things
25 he said.
1 First of all, he said that he made it very
2 clear to us that these new counts he was going to add;
3 that is not so. All he told me was that they were
4 thinking of adding a count of a crime against
5 humanity. When I pressed him on that he said "well,
6 maybe persecution", but certainly not 14 new counts.
7 It got no more specific than that.
8 Secondly, the idea that the Prosecution was
9 entitled to continue to delay to amend the indictment
10 because of conversations we were having and because of
11 the defendant's physical condition; not so. I think
12 the Prosecution was holding over our head the threat of
13 a vague possibility of an avalanche of amendments in
14 order to either get us to cooperate with the
15 Prosecution -- which I was not against in principle --
16 or to keep us off balance. This was a tactic, it was
17 not the neutral situation that Mr Keegan suggests. It
18 was a way of holding something over our head which we
19 did not know about, but which they knew.
20 Since he has admitted that all the facts were
21 there -- all the facts he needed to make the
22 indictment -- it seems that the only reason that he did
23 not add these new counts to the indictment were for
24 tactical reasons, for negotiating reasons to keep us
25 off balance, perhaps to investigate the situation in
1 Prijedor without us knowing what he was going, looking
2 for, because we had no idea what the counts were.
3 Those are pathologies which result from a failure to
4 get Article 9 seriously.
5 I will get to Article 9 in just a minute, but
6 before that I want to just make a few other comments on
7 Mr Keegan's statements. He said that all these
8 additional counts just flow from the basic facts of
9 genocide. That is not true. Genocide is a crime that
10 can occur in peace as well as in armed conflict and the
11 allegation of genocide did not put on us any burden of
12 arguing whether or not an armed conflict existed at the
14 As you all know, and from the Tadic trial and
15 other trials, that the question of the extent of an
16 armed conflict, when it occurred, whether the locality
17 was, itself, had to be part of the armed conflict, all
18 these are major issues which have nothing to do with
19 genocide but have a lot to do with the 14 additional
20 counts. That is just one example. There are all kinds
21 of things we would now have to look up, that they knew
22 about back in March of 1997 that we are finding out in
23 January and February of 1998 that would have to change
24 the entire picture of how we are approaching this
1 With respect to the point that he said when
2 he said that it might be better to substitute in the
3 indictment document evidence as opposed to witnesses,
4 first of all, he blacked out the name of any witness he
5 did not want us to see, so we did not know who those
6 witnesses were anyway.
7 Secondly, we are not talking about an
8 indictment but pre-trial discovery. You do not have to
9 give us document re examples in the indictment. In
10 fact, Mr Keegan wants it both ways: on the one hand he
11 says, "we were very generous and gave you a lot of
12 documentary and other evidence". On the other hand, he
13 is saying, "because we did that we are entitled then to
14 wait and amend the complaint later". He cannot have it
15 both ways.
16 When he refers to the fact that many domestic
17 courts allow indictment of lesser included offences,
18 I will stand on my brief on that. These crimes are not
19 lesser, murder is not lesser than genocide. Just about
20 everything in the added indictments could conceivably
21 carry a life -- a penalty of life imprisonment, so it
22 is not lesser at all, in fact, not even within the same
23 realm. They come from different realms of
24 international law. War crimes go back to the American
25 Civil War and earlier. The Genocide Convention of 1949
1 post dates World War II. Genocide was something that
2 was -- the word was invented in 1944 and was not part
3 of the Nuremberg Tribunal but came with the resolution
4 on genocide in 1948 and the Genocide Convention. These
5 are all wildly different, they have nothing to do with
6 each other.
7 It is unfair that because we were asking for
8 provisional release he did not want to tell us what the
9 additional indictments are. How does that follow? It
10 is illogical. If our client is sick and needs medical
11 attention and we were trying to devote our attention to
12 do that, what does that have to do with the ability of
13 the Prosecution to disclose these additional counts
14 that it has in mind? It really has nothing to do with
16 Now let me just say a few words about
17 Article 9, because I would like to rest on the brief
18 and I thank the court for reading it and so I do not
19 need to say much, but I would like to say, by way of
20 rebuttal: Mr Keegan's approach to Article 9 is very
21 simple and interesting. He says there is a purpose to
22 Article 9 of the International Covenant on Civil and
23 Human Rights; what is that purpose? It does not say in
24 Article 9 what the purpose is, but Mr Keegan knows what
25 that purpose is. That purpose, Mr Keegan says, has to
1 do with the initial arrest and detention.
2 So he infers a purpose for Article 9 and then
3 he uses that purpose to circumscribe what Article 9
4 says. These are equally fallacious steps. One, you
5 infer purpose then use it to limit the meaning of the
6 article. There is no justification for that.
7 Article 9 of the covenant is entitled
8 "liberty and security of person"; that does not talk
9 about original arrest. The language of Article 9
10 clearly excludes what is going on here.
11 Eleanor Roosevelt, at the time Article 9 was
12 drafted in 1950, the question was -- I will read the
13 language of paragraph 2, for those who would like to
14 know what we are talking about here:
15 "Anyone who is arrested shall be informed at
16 the time of arrest of the reasons for his arrest and
17 shall be promptly informed of any charges against
19 "Any charges against him", is the key
21 Now the question is, what does, "any charge
22 against him" mean? The Philippine delegate in 1950
23 proposed we change that to, "shall be informed of the
24 charges against him", figuring that whatever the
25 charges were, the person should be informed of them.
1 Mrs Roosevelt objected to that. She said --
2 this was summarised by Mrs Roosevelt at the time: it
3 seemed better to her:
4 "Not to replace 'any charges' by the
5 words 'the charges', as the former text (that is the
6 'any charges') more nearly met the requirement that
7 the right of the person to know all the charges against
8 made him, whatever they were, should be protected."
9 Now, Dr Kovacevic, when he was arrested on
10 January 10 1997, had a right to know what all the
11 charges were against him. Any of the charges, all the
12 charges. He had a right to know that.
13 Mr Keegan now admits that all the facts were
14 in his possession to enumerate those charges and, of
15 course, if we look at the Karadzic indictment we will
16 see a list of similar charges drawn up two years before
17 Dr Kovacevic's indictment. On far fewer facts they
18 were able to come up with roughly the same thing.
19 Dr Kovacevic had a right to know what all the
20 charges were against him at the time he was arrested.
21 Mr Keegan knew what the charges were, but he did not --
22 but he chose not to disclose them until six months
23 later. If that is not a literal violation of a Human
24 Rights Covenant, Article 9, I do not know what is. You
25 cannot get round it by positing a purpose that does not
1 exist in this thing to try to narrow the scope. The
2 court is charged -- I am sure there is no argument
3 about this -- with upholding the provisions of the
4 International Covenant on Civil and Human Rights. That
5 is like a constitutional document that supersedes
6 anything that is going on here, including our internal
8 I think Mr Keegan has not made a dent in the
9 specific arguments that I made that Article 9 applies
10 here. They apply for very good reasons because
11 otherwise the Prosecution can use tactics that are
12 distinctly unfair, not just because it makes the trial
13 unfair -- that is another narrowing point, I will
14 conclude with that. It is not just that the trial
15 maybe unfair, but we -- you and I -- we all enjoy human
16 rights in addition to the right to a fair trial.
17 Dr Kovacevic has human rights as a person presumed to
18 be innocent. All this time that he is in the detention
19 centre he still has the human rights. He had the human
20 right of Article 9 and he has all the human rights of
21 the International Covenant. They do not just depend on
22 whether a fair trial comes later in time. They exist
23 at the moment. At the moment he was arrested he was
24 deprived of his human right under Article 9 to be
25 informed of any charges against him.
1 I will now turn over to Mr Vucicevic, unless
2 there are any questions?
3 JUDGE MAY: Thank you. Yes, Mr Vucicevic.
4 MR VUCICEVIC: Your Honours, the Prosecution
5 has basically, in the second part of the argument,
6 attempted to emasculate the new Rule 50. They suggest
7 that Rule 50 should be interpreted to effect, give the
8 same lack of legal defence to the accused before this
9 Trial Chamber, basically his interpretation would like
10 to silence defence, were the meaning of the Article 50
11 as it is drafted now calls that leave to amend shall be
12 by motion and everybody knows that the business of the
13 court in deciding on the motion is not only to hear
14 whether or not application for leave is timely -- which
15 we heard it is not -- but also to hear whether or not
16 the standards for confirmation are met.
17 If the Prosecution has been willing to turn
18 the supporting evidence willingly on the motion for
19 provisional release and has turned it now, anticipating
20 that this will be a hearing under new Rule 50, it is
21 just plain unfair to allow them even to pedal back to
22 say that they were given the supporting material.
23 If this is Trial Chamber is going to accept
24 such an argument, that would mean that this would and
25 should be an ex parte hearing again, as it used to be
1 before the amendment. However, we fully realise that
2 embodiment, if the new Rule 50 gives right to Defence
3 to point out to the inconsistencies in the evidence
4 that the Prosecutor is adducing to support the
6 The Prosecutor has repeatedly said that the
7 standard of proof on the indictment is prima facie case
8 or reasonable suspicion. We do not challenge the
9 standard. This learned Chamber knows those standards.
10 What the new Rule 50 has given the Defence is the right
11 to challenge the evidence which does not rise to such
12 a level; that gives us the right to comment and point
13 to the inconsistencies of the witnesses.
14 To Witness C, for example, being -- his
15 statement being given twice, once being given early,
16 which the Prosecution must have must have had for two
17 years, where the sighting of Dr Kovacevic was not
18 reported in the concentration, detention camp, and the
19 statement of Witness C that was taken on July 18,
20 where, supposedly, on one short page, the same witness
21 has remembered Dr Kovacevic. That is the only thing
22 that ties up Dr Kovacevic to the whole affair.
23 The question is such an inconsistency and
24 especially up on the massive publication that it
25 happened and lack of the due diligence on behalf of the
1 Prosecutor would certainly cause the Trial Chamber to
2 give life to the new Rule 50 and if it all is timely
3 and if it all is proper, after considering the whole
4 indictment -- I would only say in the alternative the
5 Trial Chamber might give the Prosecutor the chance to
6 call such a witness to explain consistencies which are
7 lethal to his testimony, even to substantiate the
8 standard of a -- a minimal standard, such a prima facie
10 I would go back, your Honours, on the
11 different standard. In order to substantiate count on
12 genocide, it has to be a plan in the first few
13 paragraphs of the amended -- or let us put it, proposed
14 amended indictment, are talking about a plan. The only
15 fact indicating a plan, it is the testimony in Tadic's
16 case where the Prosecutor examining Witness P, as in
17 Peter, where, in direct leading language -- and we put
18 it in our brief. I would just like, for the importance
19 of this moment, to cite it:
20 "The Prosecutor: who was it that said in
21 1992 that the upper tolerable limit on the presence of
22 Muslims in Krajina would be 2 per cent?"
23 That is the Prosecutor testifying.
24 The witness:
25 "In 92 this was said by the president of the
1 crisis committee Radislav Brjanin."
2 Who was earlier disclosed to having been
3 a president of the crisis committee in Banja Luka, not
4 in Prijedor. This is all evidence of the plan.
5 When we, your Honours, look at the evidence
6 of the plan through testimony of other witnesses,
7 because they were rather talkative in explaining
8 witness Semenovic, witness Mujadzic, witness Merkal; as
9 we pointed out first, there was no plan. Secondly,
10 there were attempts, mutual attempts by all parties and
11 politicians in Prijedor, more than any other area in
12 Bosnia Herzegovina to avert the civil war. They were
13 meeting and talking with each other before the
14 political power takeover was carried out by the Serbian
15 politicians. There was negotiations to avert a war,
16 armed conflict. They were going on later. Federal
17 policeman in federal Yugoslavia, who was very
18 high-ranking, Mr Merkal testified that after takeover
19 of power he met with Mr Drljaca, some other officers,
20 where Mr Drljaca -- there is some confusion as to
21 language, but it seems to me that he testified that
22 Mr Drljaca was introduced as a Minister of Police.
23 Another witness testified that Mr Drljaca was
24 introduced -- that he got the appointment as assistant
25 deputy Minister of Police.
1 That, your Honours, in and of itself is very
2 important, because the Prosecutor is defeating his own
3 assertion that there was a superior authority, because
4 the superior authority under the international
5 customary law -- and the precedent that we have so far,
6 going from the amasitar down to Lieutenant Kelly and
7 Captain Merdana, committed the first, and the second
8 being acquitted, of the war crimes in Vietnam, clearly
9 established that this superior authority is applicable
10 only to the commanders that have a high degree of
11 control, military control. They can order their troops
12 to sacrifice, order their men to sacrifice their life
13 upon an order.
14 Then there is no such authority ever being
15 placed under the law. I am suggesting as a matter of
16 law, the Prosecutor is on extremely shaky factual
17 evidence trying to lead the Trial Chamber to extend
18 a law that has never been extended so far. In order to
19 allow him, he is asking you: "Please tell us, Defence,
20 I would rather have my indictment without the facts".
21 That would be contrary to what the due process of law
22 is and interpreting Article 50 I think we all have to
23 bear in mind the due process in law means fair and
24 level playing-field. The defendant would be denied
1 In terms of the facts, on the superior
2 authority, your Honours, the Prosecutor is suggesting
3 the town of Kosarac was a peaceful population that was
4 levelled to the ground by a military attack of local
5 military commanding by Dr Kovacevic. That would be his
6 conclusion to invite you to support this indictment.
7 However, in Tadic case -- and I believe some
8 of the evidence was heard in that case by Judge Vohrah,
9 if I am not mistaken. Colonel Selak, who was a chief
10 logistics officer in the Fifth Corps, sitting in Banja
11 Luka. There was a Yugoslav army retreating from Zagreb
12 and made the headquarters in Banja Luka. He testified
13 upon receiving reports in the headquarters on military
14 activities at Kosarac, that he knew that the officers
15 of such a corps were receiving ammunition supplies and
16 salaries from general staff in Belgrade.
17 I cannot surmise that a doctor from a small
18 town, it is going to have any power to satisfy the
19 prima facie standard on superior authority to be
20 commanding, as one other witness testified, I believe,
21 that is Mr Semenovic, it was told that was the
22 strongest army corps in that part of Europe, meaning
23 that they had at their disposal 34,000 soldiers. Just
24 their facts missing there and all those gaping holes in
25 the evidence are not supporting the logic. They are
1 all being done and they are all being made by the
2 Prosecution's witnesses on statements and testimony
3 under oath.
4 There is another major problem here, your
5 Honours. That is how could we reconcile such a great
6 reliance on the Crisis Staff. In the supporting
7 material, some of us who had lived in a period of
8 "enlightenment" in Tito's Yugoslavia where the
9 self-management was created. Such self management has
10 percolated down to the municipal levels. Did it mean
11 anything? Not this Trial Chamber, but you know the
12 other Trial Chambers, just as far as yesterday there
13 was an expert testifying that there was no democracy
14 there, there was no totalitarianism.
15 I respectfully suggest that the western
16 bankers and the governments have bought the Trojan
17 horse of democracy in Yugoslavia, but it was nothing
18 but the tripartite structure -- party, police and the
19 military -- that divided up the spoils of the foreign
21 When the foreign investments stopped pouring
22 in, the people who did not receive an opportunity to
23 develop tolerance and respect for rule of law to
24 a mutual productive work, to respect each other human
25 being interacting properly, all of a sudden, in
1 a poverty created, because there was no giveaways, they
2 started this war.
3 Your Honours, the mistake is the mistake that
4 western bankers made by recognising self-management on
5 a various level democracy, should not be a pretext that
6 this Trial Chamber should take to implore superior
7 authority just because these crisis committees
9 The Prosecutor in their supporting material
10 indicated nothing that was direction from Mr Stakic --
11 JUDGE MAY: Let me interrupt you for
12 a moment. It seems we are now entering the realm of
13 argument about the merits which would be more
14 appropriately addressed, would it not, at the trial.
15 At this stage we are merely seeking to determine
16 whether we should amend the indictment.
17 It seems to me that this sort of detail is
18 not going to assist us very much.
19 MR VUCICEVIC: I appreciate that comment,
20 your Honour.
21 The only thing I was attempting to do was to
22 point out to standard of evidence which is not reach to
23 go the probable suspicion. That was a suspicion the
24 Crisis Staff had authority. Another point there, there
25 was not a single fact in the amended indictment that
1 Dr Kovacevic had any authority on the Crisis Staff and
2 that he had been tied up to any of the acts that
3 amended indictment is accusing him of.
4 Your Honour, I am not talking -- I refer to
5 it in our brief -- to facts that do not rise -- because
6 what -- I will finish on this note: the Prosecutor is
7 using interchangeably standard terminology under the
8 international law but he is also using the term "ethnic
9 cleansing". "Ethnic cleansing" is inflammatory and it
10 is prejudicial to my client, because ethnic cleansing
11 does not exist in the Statute, in any of the elements
12 of the crime under the Statute. It does not exist in
13 Genocide Convention or in the international customary
14 law. "Ethnic cleansing" is a misnomer used only to
15 convict and give more or less presumption of guilt to
16 a Serbian side of this conflict for certain acts which
17 should be adjudicated here.
18 Therefore, a term carries such a significant
19 stigma in and of itself that I ask this Trial Chamber
20 to bar usage of such a term because it is not generic;
21 it is wholesale; it does not describe anything; it is
22 conclusary, it is judgmental. That is basically what
23 the Prosecutor had used in order to support all of the
24 crimes against humanity. All the crimes against
25 humanity he is charging they have to have superior
1 authority and all those elements to tie my client.
2 With all due respect, your Honours, there was
3 no intent specific to Mr Kovacevic that has been
4 presented to make a prima facie case. There was no
5 showing that he had command authority. There was no
6 showing that has risen to prima facie that he had
7 personally done any of this.
8 Therefore, your Honours, I ask you to strike
9 the counts based on genocide laws and the laws against
10 humanity as far as the crimes that are grave breaches
11 of Geneva Conventions and violation of the laws and
12 customs of war, those crimes are not available to the
13 Prosecutor charging a participant who was a member of
14 insurgency in a civil war.
15 The laws that are before you, if this were to
16 be interpreted, if this were to be accepted, it is
17 a cardinal violation of the principle crimine senalege,
18 because on twice, two reports, Secretary-General has
19 indicated, first, in adoption of the Statute for the
20 Yugoslavia Tribunal and second, for adoption of the
21 Rwanda Tribunal, has indicated that such principles
22 should be respected.
23 Moreover, the Secretary-General's report in
24 adoption of the Rwanda Tribunal said explicitly, this
25 is for the first time the common Article 3 has been
1 written in as the Article 4 of Rwanda Tribunal.
2 Therefore, by clear implication that article is not
3 Yugoslavia Tribunal.
4 There is a difficulty here and that is the
5 Appeals Chamber in Tadic's case has interpreted that
6 common article of the Geneva Conventions, Article 3 is
7 a part of the Article 3 of the Statute for Yugoslavia,
8 of this Tribunal.
9 Well, that was not complete and full analysis
10 because basic analysis was that that was international
11 war, because those were the facts that were argued by
12 the parties.
13 However, the point of each was not
14 considered. There were three parties to the war; there
15 was Bosnian Muslim, Bosnian Serbs that were engaged in
16 a civil war, and there was Yugoslav national army
17 versus Bosnian Muslim and there was international war.
18 If you do not look clearly to the facts, and only then
19 we decide to make a pronouncement of the law, then we
20 are going to make not only injustice to my client but
21 we are going to set up international law which is not
22 going to be fair.
23 There is also indicia that such an
24 interpretation of the law was incorrect and it is not
25 bound on this Trial Chamber, based on the
1 pronouncements of the International Court of Justice,
2 international law, presidential value, all the cases,
3 it is not strongly viewed as persuasive.
4 What had happened; the Appeals Chamber
5 accepted in preparation of Article 3, in trying to
6 interpret the legislative history of post facto
7 discussions in the Security Council, which consists of
8 15 members, three great powers have found a proper --
9 after adoption of the language, to make comments that
10 such a language which was never on the face of the
11 text, which will incorporate common Article 3.
12 In domestic jurisdiction perhaps that would
13 not have been so strongly considered but in 1966, even
14 so, that common Article 3 has been incorporated by
15 Security Council in the Rwanda Tribunal.
16 International Law Commission; permanent
17 member state delegates could not agree whether or not
18 this incorporation of Article 3 is a part of the
19 international customary law or not, based on this, the
20 states that make the United Nations are not only three
21 great powers have spoken. This could not be customary
22 international law. Therefore, I respectfully ask you
23 to deny amendments alleging violations of grave
24 breaches of Geneva Conventions and violations of
25 customs of war because they are not premised upon the
1 acceptable law. Thank you, your Honours.
2 JUDGE MAY: Thank you.
3 Mr Keegan, is there anything you want to
5 MR KEEGAN: Thank you, your Honour.
6 I would just mention a few points with
7 respect to the aspect, the argument with respect to
8 Article 9(2) and the purpose of that Article, the
9 commentary to the International Covenant makes it quite
10 clear that the purpose of that article is the question
11 of arbitrary arrest and detention.
12 It goes on to say that the notification
13 requirement in Article 9(2) itself relates only to the
14 stage of arrest, not to the stage of detention or, in
15 fact, thereafter. It is a question of notification, so
16 that the person is above all in a position to make use
17 of their right to remand under Article 9(4); that is,
18 be in a position to challenge.
19 In fact, the European Commission on Human
20 Rights, in deliberating a case brought under Article 5
21 of the European Convention of Human Rights -- which is,
22 of course, analagous, in fact the wording is almost
23 exactly the same to Article 9 -- requiring again
24 notification of any charges at the time of arrest. The
25 European Commission on Human Rights found that Article
1 5(2), which is again the counter to Article 9(2),
2 neither requires that the necessary information be in
3 a particular form nor that it consists of a complete
4 list of the charges held against the arrested person.
5 The European Commission -- I believe a copy
6 has been provided to your Honour of that case, as well
7 as the commentaries to the Convention.
8 It is not an issue that relates to the
9 question of amendments of indictment in a case, which
10 is what we are here about.
11 Mr D'Amato, of course, is right that many of
12 the charges in the amendment have discrete elements or
13 aspects which are separate; the questions of
14 characterisation of conflict, attack on a civilian
15 population, whether it was widespread or systematic,
16 et cetera. Those are just a part of the
17 consideration. The focus of the Defence response was
18 the question of investigation of the accused's
19 involvement; that relates, as I understand it, as to
20 which actions he did or did not undertake during the
21 relevant period of time. That does flow from the basic
22 set of facts and circumstances as I suggested. While,
23 yes, there will be legal research necessary that was
24 not necessary for the charge of genocide and perhaps
25 the commission of experts -- hiring of experts by the
1 Defence for particular legal questions, the basic
2 question of their right to investigate in the issue of
3 exculpatory evidence can flow from the same facts they
4 have been investigating, and therefore it is a question
5 of how much further time would be necessary.
6 As to the question of Rule 50, the Office of
7 the Prosecutor takes its reading of the Rules on its
8 face. The problem of importing a process for
9 contesting the confirmation of an indictment by the
10 Defence would necessitate, in fact, we believe, a whole
11 series of additional regulations in requirement by the
12 Trial Chambers. If we engage in the same rights that
13 accused has pursuant to Rule 72 under Rule 50 does that
14 then obviate the rights of the accused under Rule 72,
15 if they made use of them under Rule 50, or would they
16 get to do them twice? What type of interventions would
17 be necessary?
18 Having fractured my leg twice, and maybe not
19 being enough, I am about to stick my neck out and talk
20 a bit about British Law now.
21 It is my understanding that, in the UK, as
22 well as many other systems, the modern trend is away
23 from lengthy committal hearings, which would be the
24 analogy here because of the determination that they
25 have little effect on the right to a fair trial of an
1 accused, given the rights of an accused at a trial
2 itself. That is, I believe, the modern trend in the UK
3 and Australia, other common law jurisdictions. In some
4 civil law jurisdictions, the right of an accused is
5 limited to written objections to an indictment or its
6 analagous document at the stage that that document
7 becomes viable.
8 The question here really is: how do we read
9 Rule 50 in light of the other Rules that already exist
10 in this Tribunal? We believe that the only appropriate
11 reading of Rule 50 in light of Article 19 and Rule 47
12 and the subsequent rights of accused under Rule 72, we
13 believe this whole thing, of course, has to be pinned
14 on the question that the accused is not losing any
15 right to contest an indictment. Those rights have
16 always existed under the Rules of the Tribunal and will
17 continue to exist under Rule 72.
18 All that Rule 50 did was change the mechanism
19 for the confirmation of indictment in the situation
20 where an accused has made an initial appearance. It
21 did not change any of the standards of confirmation or
22 the processes. The accused has always had the right to
23 contest and will have the right to contest an
24 indictment post-confirmation under Rule 72.
25 That is why we believe Rule 50 does not
1 envisage the type of process we have had here today,
2 where the Defence will argue the evidence which would
3 then require the Prosecution to re-argue and end up in
4 what we refer to in our reply as, "a mini trial".
5 JUDGE MAY: Mr Keegan, you would accept that
6 the court has to judge -- the Tribunal Chamber has to
7 judge the matter with respect to the necessity for
8 a fair and expeditious trial. That is a matter we have
9 to take into consideration.
10 MR KEEGAN: Yes, sir. There is no question
11 that the rights, under Article 21, of an accused to
12 a trial without undue delay is a fundamental right.
13 That is a fundamental right in every system.
14 As I indicated earlier, we believe that the
15 question of what is an undue delay is relevant to the
16 requirements of each particular system and, in fact, to
17 each particular case. It must be judged within that
18 context. The underlying question in every system, when
19 this issue is reached, is: will the amendment or the
20 change in the indictment result in injustice or, as we
21 termed it, substantially prejudice the accused to the
22 right to a fair trial. If the answer is no, we believe
23 leave to amend should be granted and the question of
24 delay is merely one factor to be considered within the
25 large scheme of the right of both the international
1 community and the accused to a fair trial. Thank you,
2 your Honours.
3 JUDGE MAY: Thank you. We shall --
4 MR D'AMATO: May I have one minute to rebut?
5 JUDGE MAY: I think we have heard enough.
6 Thank you very much.
7 MR D'AMATO: These were new points.
8 JUDGE MAY: I think we heard the points and
9 got your point.
10 We will adjourn for 20 minutes and we will
11 consider this amendment and consider what course to
13 (3.48 pm)
14 (A short break)
15 (4.10 pm)
16 JUDGE MAY: We have considered this motion.
17 We have come to this conclusion: in our judgement, it is
18 far too late in the day to amend an indictment as
19 substantially as is being proposed.
20 We think that if this amendment were allowed
21 it would not be possible to hold a fair trial and
22 certainly not an expeditious one.
23 Accordingly, we refuse the motion and we
24 shall give our reasons in writing in due course.
25 Mr Vucicevic and Mr D'Amato, you have
1 a motion to strike parts of the amendment. Do you want
2 to pursue that?
3 MR D'AMATO: No, your Honour. We appreciate
4 the fact that you read it, considered it and we would
5 sooner drop that matter.
6 JUDGE MAY: I think the only matter which is
7 not disputed is that the name of the co-accused should
8 be removed. I take it, Mr Keegan, that that will
10 MR KEEGAN: Yes, your Honour, that is
12 JUDGE MAY: Yes, thank you.
13 That being so, are there any other matters to
14 be raised in open session before we go into closed
15 session and conduct a status conference, as we said we
17 MR VUCICEVIC: Your Honour, upon hearing the
18 ruling of this Trial Chamber, if you would give us 30
19 seconds to a minute, maximum, just to consider, because
20 there was another motion and there was a motion to
21 strike original indictment. When your Honour spoke,
22 you indicated whether or not we would like to strike
23 certain portion of the amended indictment --
24 MR D'AMATO: I just waived that.
25 JUDGE MAY: I think Mr D'Amato just dealt
1 with that, in fact. Perhaps you would like to have
2 a word.
3 MR VUCICEVIC: I would like to have a word
4 with Mr D'Amato before having a final one on that one.
5 There was a language difficulty here, in my
7 MR D'AMATO: Thank you, 30 seconds.
9 Thank you, your Honour. My original
10 statement stands. Thank you.
11 JUDGE MAY: Thank you. Are there any other
12 matters to be dealt with in open session?
13 MR KEEGAN: No, your Honour.
14 JUDGE MAY: Very well, we will go into closed
15 session to have a status conference on this trial.
16 (Hearing adjourned)