1. 1 Monday, 11 May, 1998

    2 (In open session)

    3 (The accused entered court)

    4 --- Upon commencing at 2.13 p.m.

    5 JUDGE MAY: Very well. The Prosecution

    6 motion for the protection of witnesses and victims.

    7 Ms. Hollis, so we can discuss the programme, as it

    8 were, we will sit this afternoon until sometime just

    9 before four o'clock, and if we have not completed

    10 matters, we will go on tomorrow morning. There is one

    11 of your motions which must be discussed in closed

    12 session in any event, and we can deal with that at the

    13 same time as we deal with the status conference which

    14 will follow the hearing of the motions.

    15 MS. HOLLIS: Yes, Your Honour.

    16 JUDGE MAY: Unless there is anything anybody

    17 wants to say about the order, I propose we start with

    18 the motion to protect the victims and witnesses, as I

    19 said.

    20 MS. HOLLIS: Yes, Your Honour. Thank you,

    21 Your Honour. For the purposes of this motion and other

    22 motions, we will be arguing this afternoon, the

    23 Prosecution relies in major part on the pleadings

    24 already filed, and based upon that will endeavour to

    25 make our oral remarks succinct and hopefully very much

  2. 1 to the point.

    2 In regard to the general motion we have filed

    3 for protection for victims and witnesses, we would like

    4 to make the following points, Your Honours: First of

    5 all, that the request is consistent with the mandate

    6 that is set forth in Article 22 and is well within the

    7 Rules of the Tribunal. Also, the requested relief is

    8 based on justifiable concerns about the security and

    9 privacy of witnesses who will come before this

    10 Tribunal. The requested relief also affords the

    11 accused an adequate opportunity to prepare to meet the

    12 charge against him or to prepare a defence if he

    13 chooses to present a defence.

    14 While giving the accused the means to

    15 adequately prepare the request -- to adequately prepare

    16 for this trial, the requested relief does reinforce

    17 that material that is provided to the Defence through

    18 discovery is for use in preparing for this trial and

    19 for no other use and protects witnesses and victims

    20 from disclosure for unrelated uses. It appropriately

    21 precludes disclosure to the public at large or, for

    22 that matter, to other Defence attorneys or accused in

    23 other cases unless a showing can be made that it is

    24 relevant and appropriate.

    25 It also appropriately precludes disclosure of

  3. 1 discovery material to the media which may have been

    2 done in this case. Such disclosure is inappropriate

    3 and should not be allowed.

    4 The Prosecution, with this requested relief,

    5 has attempted to fashion a relief that would allow

    6 appropriate use of discovery material by the Defence,

    7 but at the same time would protect victims and

    8 witnesses from inappropriate use of that material. We

    9 ask you to grant the motion. It is reasonable. It is

    10 based upon a sufficient basis, and it is well within

    11 your discretion and the mandate of the statute to do

    12 so.

    13 JUDGE MAY: It has been the practice in other

    14 cases, of course, to make similar orders.

    15 MS. HOLLIS: Yes, Your Honour.

    16 JUDGE MAY: And so that I can follow what it

    17 is you are asking for, Ms. Hollis, is an order to the

    18 Defence not to disclose the names or whereabouts of

    19 victims and witnesses, not to disclose the witness

    20 statements or the contents of other documents which may

    21 identify a victim or witness, except as necessary for

    22 the preparation of the defence. That is, in general

    23 terms, what is asked for, is it?

    24 MS. HOLLIS: That is correct, Your Honour.

    25 JUDGE MAY: And your reasons for doing so is

  4. 1 that there have been cases in which there have been

    2 breaches of confidentiality and security, and you have

    3 concerns about this case.

    4 MS. HOLLIS: That is correct, Your Honour.

    5 In addition to that, of course, there are continuing

    6 tensions, there continues to be the fact that other

    7 persons who have been indicted have not yet been

    8 apprehended, there are other suspects who have not yet

    9 been indicted, so that the opportunities exist outside

    10 this Tribunal, in all the areas in which witnesses and

    11 victims are located, the potential exists for physical

    12 threats to these witnesses, for harassment, and for

    13 intimidation. So that it is not just based upon prior

    14 incidents that have occurred but the continuing

    15 situation regarding these victims and witnesses.

    16 JUDGE MAY: You refer to disclosure to the

    17 media. I mean, is there anything in particular you

    18 want to say about that?

    19 MS. HOLLIS: We have put a concern in our --

    20 one of our pleadings before this chamber concerning an

    21 Article that was written, and in the Article there is

    22 specific reference made to material that was provided

    23 to the Defence by the Prosecution as part of the

    24 discovery material that simply reinforces our concern

    25 that without a protective order, material will be

  5. 1 provided to the media without first showing the Trial

    2 Chamber the necessity for that type of wide

    3 distribution of sensitive information.

    4 JUDGE MAY: So, in effect, the order would

    5 preclude the Defence from disclosing any document

    6 unless it could be shown that it was necessary for the

    7 defence or the preparation of the defence, rather.

    8 MS. HOLLIS: Certainly to the media, Your

    9 Honour, they would have to make such a showing, in

    10 terms of preparation of their case, they would have to

    11 decide what the limited circumstances are that would

    12 require the type of disclosure this relief allows for.

    13 That would be based upon their professional judgement

    14 within the parameters of the relief requested. We do

    15 not ask that they must come to this Trial Chamber every

    16 time they wish to disclose the name of a witness or to

    17 disclose information from a statement if that

    18 disclosure is based upon their professional judgement

    19 that it is necessary in this limited circumstance to

    20 provide that information to adequately prepare their

    21 defence. But that goes for members of the public, not

    22 for the public at large, nor for the media.

    23 JUDGE MAY: In the Defence response, there is

    24 a suggestion that they should be allowed to interview

    25 the Prosecution witnesses before they are called to

  6. 1 testify. You have dealt with that in your reply,

    2 suggesting you oppose that.

    3 MS. HOLLIS: Only to those witnesses who do

    4 not consent to such interviews, Your Honour, and we

    5 have undertaken to contact the witnesses in our case to

    6 ask them if they are agreeable to a pre-trial interview

    7 with the Defence here in The Hague, and we will pass

    8 that information on to the Defence. To the extent

    9 these witnesses are agreeable, of course, we have

    10 absolutely no concern about that happening.

    11 JUDGE MAY: Is that the normal practice

    12 here?

    13 MS. HOLLIS: That has been in the past, Your

    14 Honour.

    15 JUDGE MAY: Is that the practice in the

    16 United States?

    17 MS. HOLLIS: In terms of most of the civilian

    18 jurisdictions in terms of criminal case, it is my

    19 understanding that that is the practice that they

    20 cannot be forced to conduct interviews or to accede to

    21 interviews, although that may then be raised as a means

    22 of delay after cross-examination. I come from the

    23 military system, and in the military, if we are dealing

    24 with a military witness, they can be ordered to speak

    25 to the defence, but if we're dealing with a civilian

  7. 1 witness, they can't be ordered to do so.

    2 JUDGE MAY: In the system to which I am

    3 accustomed, there is no question of the Defence

    4 interviewing Prosecution witnesses before the trial

    5 unless there are some very unusual circumstances. The

    6 practice is not to allow that to happen for the sort of

    7 reasons which you mention in your pleadings.

    8 Judge Mumba comes from a similar background.

    9 However, you are prepared to ask the witnesses whether

    10 they are prepared to be interviewed by the Defence.

    11 MS. HOLLIS: Yes, Your Honour. We have begun

    12 that process, in fact, of calling them and asking them,

    13 and we will provide the information to the Defence as

    14 we obtain it from the witnesses.

    15 JUDGE MAY: The other matter which has been

    16 raised is a request as to whether the witnesses have

    17 been interviewed by security or intelligence services

    18 or other organisations that have interviewed them for

    19 counselling purposes. Again, can you assist on that,

    20 Ms. Hollis.

    21 MS. HOLLIS: Yes, Your Honour. In regard to

    22 the request for disclosure of whether witnesses have

    23 received psychiatric or psychological treatment, again

    24 we have undertaken to ask our witnesses if, in fact,

    25 they have received such treatment and to convey that

  8. 1 information to the Defence. The Defence also attaches

    2 to that particular request that all the records of any

    3 such treatment or counselling that has occurred be

    4 obtained by the Prosecution and provided to the Trial

    5 Chamber. That portion of their request we object to.

    6 We believe that, first of all, the request itself is

    7 based upon speculation as to what are termed "activist

    8 psychiatrist" in the United States and other

    9 speculative grounds, but as to records, we believe that

    10 without a showing of the relevance and a narrowing or a

    11 definition of what they mean by "activist psychiatrist"

    12 and who they may have in mind, that that is an overly

    13 broad request that would at this point unduly invade

    14 the privacy of these witnesses and so we do object to

    15 the portion concerning records. We also question our

    16 authority to go to many of these countries and to order

    17 psychiatrists in those countries to produce records

    18 that may be protected under various laws in various

    19 countries. So that portion of their request, we do

    20 object to.

    21 And, Your Honour, in terms of their request

    22 that they be told of any type of interrogation,

    23 counselling, or the rendering of any type of assistance

    24 to these witnesses from state security and intelligence

    25 services or social or religious organisations, we

  9. 1 object to this request on the grounds that this request

    2 is overly broad and it is unsupported by justifying why

    3 such a labour-intensive request should be embarked upon

    4 at this point. For example, how do they define "state

    5 security and intelligence services"? What services

    6 would they include within that? How do they define

    7 "social and religious organisations"? What

    8 organisations would they include within that? Without

    9 defining these, without showing the relevance and

    10 explaining why this cannot be brought out on

    11 cross-examination, we suggest that the requested relief

    12 is unwarranted at this time and that it is not shown to

    13 be relevant, it is too broad, and that at this point in

    14 time, it is an unwarranted intrusion into the lives and

    15 circumstances of these witnesses.

    16 As we pointed out in our pleading in response

    17 to this requested relief, we have witnesses coming

    18 before this Tribunal who basically have been left

    19 without the means to exist. They're outside their

    20 homelands, many of them, or they have returned to a

    21 different area than the one they lived in. Many of

    22 them for years were denied the ability to actually earn

    23 their livelihood because they were in other countries

    24 that would not allow them to pursue their professions.

    25 Many of them were traumatised. Of course, they

  10. 1 received relief from many, many agencies. That is not

    2 a sufficient basis to require this kind of disclosure

    3 to the Defence. We would suggest and we would ask that

    4 without a further showing of relevance and why it

    5 cannot be adequately addressed on cross-examination,

    6 that this Defence request be denied.

    7 JUDGE MAY: And so if you would remind me,

    8 please, what you are prepared to ask the witnesses?

    9 MS. HOLLIS: In that regard, Your Honour, we

    10 are not prepared to ask them anything. We believe the

    11 list of --

    12 JUDGE MAY: No, you said earlier you were

    13 prepared to --

    14 MS. HOLLIS: Yes, two things: Number 1, are

    15 they willing to engage in pre-trial interviews here in

    16 the Hague with Defence counsel, and in that regard,

    17 Your Honour, we do point out Defence counsel, because

    18 were the accused to be present at such an interview,

    19 the request may be denied.

    20 JUDGE MAY: It will be wholly wrong if any

    21 such suggestion were made, but I don't think that is a

    22 suggestion which is made.

    23 MS. HOLLIS: So we will ask them if they are

    24 willing to speak with Defence counsel here in the

    25 Hague, we will convey that to the Defence, those

  11. 1 witnesses who are willing to do so, we can make

    2 adequate arrangements when they arrive here in the

    3 Hague. Secondly, we will inquire of our witnesses if

    4 they have received psychiatric or psychological

    5 counselling or treatment, and we will convey that

    6 information to the Defence.

    7 If you have no further questions, Your

    8 Honours, I have no further comments.

    9 JUDGE MAY: Of course, it may be convenient

    10 to deal with these matters, but technically, of course,

    11 I suppose there should be a motion in respect of them.

    12 But it may be convenient to deal with them now.

    13 MS. HOLLIS: In that regard, Your Honour, for

    14 convenience and expediency, we did treat what was

    15 contained in their response as a separate motion.

    16 JUDGE MAY: Thank you. Yes. Who is going to

    17 deal with this for the defence?

    18 MR. VUCICEVIC: Good afternoon, Your

    19 Honours. I do have a great deal of understanding and

    20 feeling for suffering that the victims and the

    21 witnesses have gone through, on one hand. On the other

    22 hand, it is my duty to make sure that only credible

    23 evidence is presented before you, that

    24 cross-examination process be such that it ferrets out

    25 all the biases that could have consciously or

  12. 1 unconsciously influenced the perception and

    2 recollection of those witnesses, and if you are going

    3 to have, and indeed, a fair hearing and to have a

    4 crystal clear evidence before you, the Defence ought to

    5 be given a certain latitude to interview the witnesses

    6 just as Your Honour presented, and here is not only a

    7 difficulty that might be facing the witnesses that are

    8 coming from Bosnia but at the same time there is the

    9 same amount of difficulties that are being encountered

    10 by counsel, both of us coming from the United States,

    11 going into the areas that we are strangers by the most

    12 recently political divisions of this war, that we will

    13 be facing physical risks to ourselves, at the same time

    14 attempting to even contact these witnesses there would

    15 present first difficulties to the witnesses, if we were

    16 to follow traditional practices as Your Honour

    17 suggested that would be usually followed in the

    18 national jurisdiction where the investigators of the

    19 Defence team would contact the witnesses and ask

    20 whether or not they wish or not to communicate to the

    21 Defence team. We don't have that luxury. That

    22 privilege might be theoretical, but it's not real. And

    23 in our response to the Prosecutor's motion, I apologise

    24 to Your Honours, but we were on the eve of the trial

    25 and, you know, I know it would have been a bit more

  13. 1 proper to address the formal motion, but within the

    2 context of this motion, I was asking just for a broader

    3 latitude that we would get a chance to investigate the

    4 background of the witnesses and -- but not only the

    5 background because the statements that we have received

    6 so far, even on these 25 statements that we got a few

    7 weeks ago, we have gotten those statements from Tadic's

    8 trial and Tadic's trial was not a genocide, and all the

    9 relevant testimony referred to unrelated counts to the

    10 count which is not related to my client Dr. Kovacevic,

    11 if we don't have a chance to talk to almost all these

    12 witnesses now, these statements might be wholly

    13 irrelevant. They are talking about, you know, another

    14 man sitting in one detention centre or camps as it may

    15 be, but the area about the plan, implementation,

    16 alleged participation of Dr. Kovacevic, his personal

    17 intent or his ability or inability to stop what has

    18 been allegedly happening, it's none of those

    19 statements. So that means we are going into this trial

    20 without having any information of what those witnesses

    21 are going to say.

    22 I know the Office of the Prosecutor is

    23 overwhelmed with work, I know that judicial economy in

    24 this Chamber -- this Chamber's high views of the

    25 Defendant's right to speedy trial have been prevailing

  14. 1 on all of us, but, however, in order to have a fair

    2 trial, we ought to be given a chance to examine the

    3 aspects or the witnesses' statements that haven't been

    4 heretofore presented to us in order to go along with

    5 this Trial Chamber, I for reason of expediency and

    6 practicality suggested that we, as Defence, be given a

    7 chance to interview the Prosecutor's witnesses here in

    8 The Hague.

    9 First, for protection of the witnesses. The

    10 community in which they live will not be alarmed by

    11 strangers coming to talk to them. They will be here

    12 because, knowing that they are here to testify, whether

    13 they will have an hour or two conference with the

    14 Defence attorney in the presence of the investigator or

    15 a Prosecutor, that would be just fine with us. And I

    16 have suggested, in order to facilitate the same thing,

    17 we would allow the Defence witnesses, just when we

    18 begin our case in chief, if we go that far, to give the

    19 same courtesy to the Prosecution.

    20 Another point: We -- what happened to us

    21 most recently, after we had a conference before Your

    22 Honours on 27th of March, none of those wishes have

    23 materialised. We really haven't had the benefit of any

    24 of those suggestions that Your Honour requested that be

    25 given to us in our investigation. Moreover, we were

  15. 1 surprised. I asked could I be escorted to go to a

    2 Moslem theatre of international police, they said we

    3 don't know anything about it, we don't have staff. Why

    4 don't you go over there and talk to the commander of

    5 the police on the other side and he's going to talk to

    6 the local police and the local policeman is going to

    7 bring the witness where? In the police station for

    8 questioning? I was shocked when I walked in

    9 <unintelligble> because the Serbs were rounded up and

    10 were questioned in the police station because there was

    11 another order came, not from this chamber but from

    12 another chamber of this court. I don't think that --

    13 those are not the intents and wishes of this court.

    14 But when the clear water starts from here and goes

    15 downstream, there are a lot of people that don't have

    16 an understanding of the law and the intents and wishes

    17 of this court and muddy it up. That's why I figured if

    18 this process is going, should be as pristine as it is,

    19 we could cooperate professionally and give this

    20 courtesy to each other here. Let it come similar to

    21 interviewing the witnesses.

    22 Another point is on -- let me start first

    23 about state agencies. I understand these are people

    24 who are displaced and dispossessed, and if we have this

    25 as a form of a questionnaire where they would state:

  16. 1 "I have received aid from such and such social

    2 organisation. For that matter I know personally

    3 because I have maybe 10 percent of my practice in

    4 Chicago are a member of the Moslem community from

    5 Bosnia who ask for my services. I know the various

    6 social organisations they are receiving help. I know

    7 of a psychiatrist with University of Illinois that's

    8 counselling and interviewing quite a few witnesses.

    9 There was a story in a Chicago paper and he's using the

    10 method where he is hypnotising the witnesses, getting

    11 information to them, and after he's waking them up, he

    12 is talking to them about it. I'm not quite sure of the

    13 tale but that is an account of the story. After I

    14 talked to psychiatrist, he said, recollection of the

    15 evidence or the memory is suppressed. That is kind of

    16 modern school of thought. The opponents of that school

    17 of thought practically call it an "implant memory"

    18 where in psychiatrists who believe what the reality

    19 should be, talking to the patients later on what the

    20 defence should be. If the psychiatrist knows that

    21 these people are -- talking about people from Kozarac

    22 that have been attending these courts, and if this has

    23 been happening, you ought to know. We ought to know.

    24 We don't want to harm their treatment. But we want to

    25 find out, is this charlatanism or are you going to get

  17. 1 somebody's witnesses through hypnosis or are you going

    2 to get the testimony from these witnesses as to what

    3 indeed happened. That is on this particular point, and

    4 it's very important because I think that -- in a very

    5 scientific, professional journals this type of approach

    6 has been discredited, and for that reason we want to

    7 present all that evidence before you, whether it is

    8 possible or not. For a Prosecutor to come the day

    9 before such a witness is to testify that he had

    10 treatment through such a clinic would be to derail the

    11 efficiency of this trial. We ought to know about it.

    12 We have to have to get our expert, we have to review --

    13 have expert review that evidence. We need time to do

    14 it. What I'm suggesting, I am merely identifying the

    15 problems so that everybody should, in a professional

    16 manner, be informed about it.

    17 If the witnesses have had psychiatric

    18 treatment and somebody has heard some serious problem

    19 about perceiving reality, conditions as paranoia,

    20 schizophrenia or something like that, this is indeed

    21 highly relevant whether they are capable to perceive

    22 the events as they are or not, they are capable to

    23 recall them. That's why those major things are so

    24 important. If somebody had marital stress problems, we

    25 certainly wouldn't be interested in that.

  18. 1 Financial rewards have been always at issue

    2 in examining the witness. It is not whether somebody

    3 has received money, but if somebody received something

    4 other of value in order to perpetuate certain kind of

    5 testimony. We are not asking that any monetary amounts

    6 be disclosed if subsistence has been provided by the

    7 various social or religious organisation, but if these

    8 amounts have been a little more than usual social

    9 agencies in any of the western countries provide, these

    10 become relevant. We have to look into it.

    11 JUDGE MAY: Have you any reason for making

    12 that suggestion?

    13 MR. VUCICEVIC: The most recent one?

    14 JUDGE MAY: Yes.

    15 MR. VUCICEVIC: Yes, Your Honour. What

    16 happened in Tadic's case, there was a witness, L. I

    17 think that was a fabricated testimony that came up

    18 before the Trial Chamber at that time. And I apologise

    19 to everybody because I don't know the -- indeed all the

    20 facts about it. I wasn't at that case. But the

    21 general impression that the people I talked to, it was

    22 somehow swept under the rug. We want this trial to be

    23 impeccable. We will give all those information you are

    24 requesting of the Prosecution on any witness that we

    25 are presenting.

  19. 1 JUDGE MAY: During the trial -- during the

    2 trial, Mr. Vucicevic, you can ask the witnesses these

    3 questions, can't you?

    4 MR. VUCICEVIC: Yes, Your Honour, we could.

    5 But at that time it is going to be highly ineffective,

    6 because if the correct answer doesn't come out of the

    7 witness, we will never have a chance to check it,

    8 verify it, and disprove it. It's kind of closing the

    9 door of the barn when the horse is out. Let's check

    10 the barn to see whether the horse is there or not early

    11 on. I am not a Doubting Thomas, but it seems in this

    12 type of practice we prevent contamination of those or

    13 indeed real impossible things. As I said, minor things

    14 about, you know, minor psychiatric counselling, stress

    15 at work, immediate stress after displacement, I

    16 understand. But prolonged psychiatric testimony,

    17 payment of -- or position of, you know, political,

    18 governmental that were given to certain witnesses, we

    19 ought to know. To these witnesses to us are going to

    20 be names that we are going to see even if we are

    21 allowed. What I see with this method, it is highly

    22 unreliable. We are entitled to ask at trial the

    23 witness, if he says, did you refuse to talk to us or

    24 not and he says, "Well, I don't remember." He might

    25 not remember a call from the Prosecutor. That remember

  20. 1 is nothing. But if he was going to say or he or she,

    2 truth, nothing but the truth, he had no reason not to

    3 talk to us, and if he had a reason, you ought to hear

    4 those reasons. With a simple question from them that

    5 is going to be lost.

    6 What I'm suggesting, the witness could -- we

    7 could design a little questionnaire, they could pass it

    8 to the witness, witness could fill it out, we will have

    9 a record before you. I mean, you know, I'm afraid that

    10 this is going to be, to a great degree, a trial by

    11 surprise because we have Tadic's testimony, we don't

    12 know anything about witnesses, we can't learn about,

    13 you know, their psychological problems, we can't learn

    14 anything about whether there was a financial benefits

    15 in their lives, and we don't know whether there has

    16 been any coaching, counselling, or preparation for, God

    17 forbid, fabricated testimony, but there are so many

    18 governments there that are interested in the outcomes

    19 of these trials, and I think that we all have to be,

    20 you know, mindful of that. That was the reason for

    21 my -- I was not getting prepared, nor ever entertained

    22 a thought that it should be a fishing expedition, just

    23 a bare necessity. Thank you.

    24 JUDGE MAY: Ms. Hollis, we are minded to rule

    25 on this matter tomorrow morning. Is there anything you

  21. 1 want to add?

    2 MS. HOLLIS: No, Your Honour. I believe we

    3 have sufficiently covered the points we wish to make.

    4 JUDGE MAY: Thank you. I should mention that

    5 there has been a ruling of this Tribunal, one of the

    6 Trial Chambers, in Delalic in March of last year, and

    7 during the course of a ruling, the Trial Chamber there

    8 rejected the submission of the Defence that it had a

    9 right to the addresses of the witnesses for the

    10 purposes of conducting pre-trial interviews, and there

    11 was a ruling, as I say, of a Trial Chamber, but we

    12 will, of course, have to consider this matter afresh.

    13 Very well. That leads us to the next motion,

    14 which is the motion in relation to the investigator.

    15 This is a motion to allow the investigator in charge of

    16 the matter to observe the proceedings and not to be

    17 precluded from being called as a witness. The rules

    18 allow for that.

    19 Is there anything you particularly want to

    20 add to what you have already submitted on paper,

    21 Ms. Hollis?

    22 MS. HOLLIS: Very briefly, Your Honour, we

    23 suggest that regarding the Defence response, that the

    24 rule applies to both parties to the trial, so there is

    25 no inappropriate advantage to one party or the other.

  22. 1 Also, that the Defence interpretation of the Rule and

    2 the restrictions the Defence would ask you to place on

    3 the Rule simply are not supported by the plain language

    4 of the Rule itself, nor by any reasonable inferences

    5 you can draw from that plain language.

    6 We certainly agree that this is not an

    7 absolute and that there may be contexts in which a lead

    8 investigator could not hear evidence and then testify,

    9 such as if the lead investigator himself or herself

    10 were a victim or a witness to events that were relevant

    11 to an indictment. Such is not the case here, nor has

    12 such a case been put forward by the Defence.

    13 The Prosecution is concerned with two

    14 implications of the Defence argument and would

    15 specifically wish to address the Trial Chamber

    16 regarding those.

    17 The first is this: To the extent the

    18 Defence argues that the lead investigator in this case

    19 would commit perjury before this Trial Chamber or any

    20 judicial body we strenuously object to such an

    21 unfounded accusation.

    22 Secondly, to the extent the Defence argument

    23 on this matter suggests that the Prosecution in this

    24 case would suborn perjury or would allow such to occur

    25 with our knowledge, the Prosecution again strenuously

  23. 1 objects to such unfounded accusations.

    2 Again, Your Honour, we believe the motion

    3 basically speaks for itself and is consistent with the

    4 plain language of Rule 90E.

    5 Thank you.

    6 JUDGE MAY: Mr. Vucicevic.

    7 MR. VUCICEVIC: Your Honours, if the

    8 Prosecution feel offended by their reading of my

    9 response, I would apologise to them. However, the

    10 response has not been written with the words they use,

    11 merely the noted hypothetical, and it did not imply at

    12 all that they would ever use it.

    13 However, since we are anticipating the

    14 future, my reading of the Rule 90D contains two

    15 clauses, and the Prosecutor was trying to more or less

    16 disembowel the rule by using exception to make the main

    17 reading of the Rule. Sub-rule D says, "A witness other

    18 than an expert who has not testified shall not be

    19 present when the testimony of another witness is

    20 given." That's a basic rule.

    21 And the Prosecutor might be allowed to

    22 testify later; I believe that there was some special,

    23 extraordinary circumstance, either he should have been

    24 there following the trial. To me, investigator is just

    25 close to the case, to the theory of a case, everything,

  24. 1 just as an attorney. And in most rules of professional

    2 conduct, and even the rules of professional conduct

    3 that the defence attorneys are bound before this Court,

    4 indicates that lawyers shall not be testifying. To me

    5 it seems that this invitation is here being asked of

    6 you.

    7 I tried to strain and find a reason why it

    8 could be, and, you know, I suggested indeed for

    9 exceptional circumstances would have been exceptionally

    10 stringent test, and that I submitted to you a

    11 three-prong test where investigator could be

    12 testifying, and that could be if a fact has been

    13 discovered after the trial has started, or just shortly

    14 before the trial, if you may wish to expand, that that

    15 fact was unduly hidden from the Prosecutor and that

    16 such a fact cannot be proven by any other witness.

    17 But to allow what is an exception to kind of

    18 disembowel the Rule, I don't need that kind of

    19 attitude, it fosters opportunistic behaviour. In

    20 anybody, whether men, attorneys, and that could

    21 happen. And if the Rule is going to have its import as

    22 it intended, as I see that intent, this exception

    23 should be read as an exception.

    24 I did not suggest that this team of

    25 Prosecutors, whom I have gotten experience to respect

  25. 1 and work with, would ever do it. But, as they say,

    2 circumstances change, because they have said -- that's

    3 their language -- they do not intend to call Miss

    4 Inayat in, but if the circumstances change, and that's

    5 what we're talking. We're talking about something that

    6 the Rule says it shouldn't happen; however, we should

    7 narrow it.

    8 Thank you, Your Honours.

    9 JUDGE MAY: Would you wish your investigator,

    10 in due course, to be present or not, Mr. Vucicevic?

    11 MR. VUCICEVIC: I would only wish my

    12 investigator to testify under the same stringent

    13 circumstances as I have suggested. If my investigator

    14 is in the court listening to any other witness

    15 testifying, I wouldn't want him to come back and

    16 testify on the same matter. I wouldn't feel very proud

    17 of myself doing that.

    18 JUDGE MAY: We shall grant this motion.

    19 Rule 90(E) is quite clear. It permits an investigator to

    20 be called as a witness notwithstanding that the

    21 investigator has been present in the courtroom. We can

    22 see no reason in this case not to allow that Rule to

    23 operate, no reason has been put forward before us why

    24 it should not, and therefore, as has been the practice

    25 in the Tribunal, at least as far as this Trial Chamber

  26. 1 is concerned, the investigator may be present.

    2 The motion is granted.

    3 We will turn to the next matter which I

    4 mentioned, and that is the Defence motion calling for a

    5 Prosecutor's code of conduct, opposed by the

    6 Prosecutor, and we will hear the Defence upon it.

    7 MR. D'AMATO: Thank you.

    8 Of course, the Defence is bound by a code of

    9 professional conduct for all proceedings in this

    10 Tribunal, and the Prosecutor is not bound by such a

    11 code.

    12 If I may have a moment to talk a tiny bit

    13 about political theory? The two kinds of government

    14 that we know in this world, one is the political realm

    15 and one is the judicial realm. Montequeu <check

    16 name> and many others pointed out the fundamental

    17 difference.

    18 In the political world, one might say the

    19 ends justify the means. Political people are trying to

    20 achieve the right ends for society, and sometimes it

    21 means proceeding in ways that might violate certain

    22 moral codes, codes of honesty, even legal codes to

    23 achieve these ends. We're all very familiar with

    24 politics.

    25 On the other hand, the judicial form of rule

  27. 1 in the world says that the means are tremendously

    2 important, that the means cannot be slighted in any

    3 way, even though it costs money, even though it takes

    4 time, even though it requires a great deal of what the

    5 politicians might call "inefficiency."

    6 A trial is premised on the notion that we're

    7 not sure what justice is if we don't have fair means of

    8 proving justice. It's not clear to us whether the ends

    9 are right or wrong unless we have fair procedures.

    10 I think a statement was made that students

    11 will read for hundreds of years in the Tadic trial that

    12 the very legality of this Tribunal is a function of its

    13 fairness, that one may doubt whether the Security

    14 Council, under Chapters 6 and 7, had the authority, one

    15 may question that back and forth, but over the long

    16 run, it's the fairness of the procedures that count.

    17 In that respect, it seems to me that a Court

    18 of Justice must have a level playing field and must

    19 require that both sides adhere to the standards of

    20 professional conduct and honesty so that the means are

    21 never subordinated to any ends.

    22 The Prosecutor has responded to our

    23 substitute motion, and let me quote the operative

    24 language of the Prosecutor's response in saying "that

    25 it is the 'Tribunal' which prosecutes persons, not the

  28. 1 Office of the Prosecutor, the substitute motion is, in

    2 effect, requesting this Trial Chamber to include all

    3 members of the Tribunal as 'prosecutors' who would be

    4 bound by this proposed code of conduct. So, trial and

    5 appellate judges, all members of the Chambers' support

    6 staff and all members of the Registry would be subject

    7 to a code of conduct promulgated by the Prosecutor."

    8 Since this is the operative statement of

    9 their response, let me simply point out that the relief

    10 that we request, respectfully request, the Trial

    11 Chamber to rule that appearances and practices before

    12 this tribunal by attorneys from the Office of the

    13 Prosecutor shall be barred unless the Prosecutor

    14 submits a professional code of conduct.

    15 So the horrible situation that they envisage

    16 has nothing at all to do with the relief we ask.

    17 We have asked to make it a condition

    18 precedent that attorneys from the Prosecutor's Office

    19 must come into this Tribunal bound by a professional

    20 code of prosecutorial conduct because that is integral

    21 to what they stand for. If the Prosecution sees in an

    22 indictment procedure, for example, where there is no

    23 one else present, it's just the Prosecutor and the

    24 reviewing judge -- so it's an ex parte proceeding, it's

    25 very important, it's the first thing that happens in a

  29. 1 case -- the reviewing Judge is entitled to know that

    2 the Prosecution is coming before the reviewing Judge

    3 bound by a code of conduct, that this is not a

    4 political situation, that this is not something that

    5 flows from politics but this is something that is going

    6 to a Tribunal. To be confident that the Prosecutor is

    7 bound by that code, one can say that the Prosecutor

    8 must subscribe to that code before appearing before the

    9 reviewing Judge.

    10 Now, it seems to me this Tribunal has all the

    11 power it needs to impose a condition like that because,

    12 as I say, it's integrally related to the very reviewing

    13 of the indictment procedure. And if that's true at

    14 that end, it's true all the way down, that in every

    15 step of the way, when the Prosecutor comes here, it's

    16 with that idea that it is bound by a code of

    17 professional conduct.

    18 The Prosecutor says the substitute motion is

    19 based on no alleged misconduct of the Prosecution in

    20 this case and therefore it's frivolous.

    21 Well, the Defence attorneys are bound by a

    22 defence code and you haven't shown us that we have

    23 engaged in any misconduct, and I don't think that's an

    24 appropriate matter. I am perfectly happy to be bound

    25 by a Defence code of professional conduct, whether or

  30. 1 not the thought would ever occur to me to engage in any

    2 unprofessional conduct, and I certainly would never

    3 entertain that.

    4 So it's not a question of "Let's wait and see

    5 until there is misconduct before we then impose a

    6 code." We do that in advance. It's a prophylactic

    7 Rule rather than a Rule that is one that is set up only

    8 if something like that happens.

    9 We might never know that there is

    10 misconduct. One of the ideas of a code is to hold

    11 people to a sense of ethics that might weed out

    12 potential abuses before they ever occur because it's

    13 not always clear when misconduct occurs. Sometimes

    14 it's not detectable.

    15 And one last word. This Tribunal might deny

    16 this motion, but I think, if you want to do so, Your

    17 Honours, I don't think this is going to go away. I

    18 think the next case will bring it up and the case after

    19 that and the media, and the more important the cases

    20 are, the more Defence counsel will continue to say,

    21 "Why should we be bound by rules when they're not?"

    22 I think it's a matter of fundamental

    23 fairness, and I submit that this is the time to face up

    24 to it and to impose such a requirement on the

    25 Prosecution rather than have it come up again and

  31. 1 again.

    2 JUDGE MAY: Mr. D'Amato, you said, perhaps by

    3 a slip of the tongue, "this Tribunal might deny this

    4 motion." But that's an important point, isn't it? You

    5 are asking the Trial Chamber to make an order of this

    6 sort affecting the whole Prosecution and the whole

    7 Tribunal, not simply this trial.

    8 So the question must be: Even if we were

    9 minded to grant the motion, would we have any power to

    10 impose such a code on the Prosecutor or, indeed,

    11 anybody else? How are we to make such an order in a

    12 trial of this sort? It's a matter for the Tribunal as

    13 a whole, isn't it?

    14 MR. D'AMATO: That's a good question, Your

    15 Honour. I think that our very limited jurisdiction as

    16 Defence counsel is to say we are entitled to fairness

    17 in our trial and we are entitled for them to come into

    18 a code as to this trial. Whether the Prosecution takes

    19 that as a good hint that the same code perhaps should

    20 be effectuated to guide itself in all cases, it would

    21 be up to them. But I think that if we were to win this

    22 motion limited to this particular trial at this

    23 particular time, other defendants and other people will

    24 probably say, "Well, we want the benefit of that too."

    25 I can't go to a different Chamber -- I mean,

  32. 1 you have jurisdiction over me now, and I think this is

    2 the appropriate place for me to raise the motion

    3 because it impacts on what we're going to be doing when

    4 the trial starts, so I think it's appropriate and

    5 correct and jurisdictionally correct for me to bring up

    6 the motion with respect to this trial. But if it is

    7 extended, so much the better.

    8 JUDGE MAY: Thank you. Yes, Ms. Hollis?

    9 MS. HOLLIS: Thank you, Your Honours.

    10 First of all, Your Honour, we suggest to you

    11 that there is a fundamental difference between persons

    12 who appear here on behalf of the Prosecutor and Defence

    13 counsel who appear here on behalf of various accused.

    14 When the Tribunal was set up, there was

    15 created an Office of the Prosecutor, and I do not

    16 appear here on behalf of Brenda Hollis, I appear here

    17 on behalf of the Prosecutor.

    18 The Prosecutor is a person who is appointed

    19 and has certain responsibilities as an appointed

    20 official under the United Nations, also has

    21 responsibilities that are set forth in the statute that

    22 govern the types of conduct she must carry out herself

    23 and must ensure that her staff carries out.

    24 So in the creation of the Tribunal, we have

    25 created a sub-organ with a person at its head who is

  33. 1 fully accountable to the Tribunal and to the United

    2 Nations for breaches of conduct the United Nations

    3 expects and breaches of conduct that are set forth in

    4 various articles of the statute and in the rules.

    5 Let's contrast that to the Defence counsel

    6 who come in here as independent contractors. There is

    7 no Office of the Defence for the Tribunal, so there is

    8 no defender or Defence counsel who is in a similar

    9 situation as the Prosecutor. So there is no one who

    10 has responsibility by virtue of their position as the

    11 head of a UN organ within a UN organisation to be

    12 accountable for conduct under the statute and under the

    13 rules. That's a fundamental difference. Perhaps it is

    14 that type of difference that the registry was

    15 reflecting upon when it determined to create a code of

    16 conduct for the defence.

    17 Now, in terms of the conduct of the members

    18 of the Office of the Prosecutor and the Prosecutor

    19 herself when she appears before Trial Chambers, that

    20 conduct is regulated by the statute and the rules, and

    21 there are very clear guidelines in there as to what we

    22 may or may not do.

    23 We may not act purely on political motives

    24 because the statute and the rules set up a procedure

    25 whereby, before we can indict someone, we must present

  34. 1 the evidence and the indictment to a Judge. That Judge

    2 must review it and determine that a sufficient level of

    3 proof has been presented. When we come to a trial, the

    4 Defence, the accused, has the right to raise issues

    5 concerning the form of the indictment, has the right to

    6 come forward and say, "Based on evidence that has been

    7 presented to us, this is a politically motivated

    8 indictment which has no evidence to support it," and

    9 asks the Trial Chamber to take appropriate action.

    10 In regard to other rules perhaps, for

    11 example, disclosure, there are very comprehensive

    12 disclosure rules that we are obligated to follow. That

    13 also sets our standards for behaviour before Trial

    14 Chambers.

    15 In opposing this Defence request, the

    16 Prosecution opposes the request that a Trial Chamber

    17 or, indeed, any other organ of this Tribunal, mandate

    18 to the Prosecutor that she must prepare some type of

    19 code of conduct that then must be subjected to scrutiny

    20 by others within this Tribunal. We believe that is an

    21 infringement upon the specific independence that was

    22 given to her by the statute.

    23 That is not to say she does not supervise and

    24 oversee those who work for her. That is a matter for

    25 her to decide how she is going to carry that out. It

  35. 1 is not for the Defence to ask a Trial Chamber to

    2 mandate to her how she will do that.

    3 Now, in regard to some portion of the Defence

    4 counsel's argument here, we certainly would agree that

    5 a Trial Chamber may set forward its own rules of

    6 behaviour for anyone who comes before the Trial

    7 Chamber, both Prosecution and Defence. We are not

    8 opposing such a creation of rules. Many courts, many

    9 Chambers, have rules that apply to cases coming before

    10 those Chambers. That is different than saying this

    11 Chamber should order the Prosecutor to come up with

    12 something to regulate her own people, contrary to the

    13 independence she is given by the statute.

    14 Certainly nothing that exists in the current

    15 statute or rules precludes an accused from coming

    16 forward or a Defence counsel from coming forward and

    17 making good faith allegations of misconduct in a

    18 particular case before a Trial Chamber. That can be

    19 done. There is nothing to preclude that. And this

    20 code of professional conduct they speak of does not

    21 take the place of that. They already have an effective

    22 means to raise any issues they have concerning

    23 misconduct on our part.

    24 We suggest that this motion is not based on

    25 any issues before this Trial Chamber, that it calls for

  36. 1 relief that invades the independent functioning of the

    2 Office of the Prosecutor, and that it should be

    3 denied.

    4 JUDGE MAY: Yes. Do you want to add

    5 anything, Mr. D'Amato?

    6 MR. D'AMATO: No, thank you.

    7 JUDGE MAY: Mr. D'Amato, we are against you.

    8 We are satisfied that the conduct and independence of

    9 the Prosecutor is set out under the statute, and it is

    10 in the statute that the safeguard for that conduct is

    11 to be found.

    12 Defence counsel, as has been pointed out, on

    13 the other hand, are independent contractors who come

    14 for a particular case, and it was no doubt for that

    15 reason that it was felt right that there should be a

    16 code of conduct in their case.

    17 The level playing field, we are satisfied, is

    18 provided by statute and code and there is no real

    19 distinction between the two.

    20 We turn next to evidential matters and two

    21 motions from the Prosecutor, the first described as a

    22 request in relation to judicial notice, and perhaps it

    23 might be convenient if that was introduced by the

    24 Prosecution? We have it before us. It relates to

    25 mainly documents, as far as I can see. But perhaps,

  37. 1 Ms. Hollis, you could deal with it?

    2 MS. HOLLIS: Yes, Your Honour. Basically,

    3 Your Honour, the Prosecution is asking that this Trial

    4 Chamber take judicial notice of, first of all, the fact

    5 that the prohibition of the crime against genocide is a

    6 pre-emptory norm, and it is my understanding that the

    7 Defence does stipulate to that.

    8 Secondly, that the Socialist Federal Republic

    9 of Yugoslavia ratified the Genocide Convention on 29

    10 August, 1950. It is my understanding the Defence also

    11 stipulates to that.

    12 As to the other request for judicial notice,

    13 basically, Your Honour, they concern the dates upon

    14 which certain declarations or actions were taken.

    15 In the Defence response to the remaining

    16 request for judicial notice, that be would be 3 through

    17 7, the Prosecution is somewhat confused by some of the

    18 responses. For example, in their response to number 3,

    19 the response is that Bosnia-Herzegovina succeeded --

    20 was involved in an illegal succession. We think that

    21 perhaps that goes to the import of what they did and

    22 not whether or not they took that action on the 6th of

    23 March as we are asking for judicial notice of.

    24 So, again, we are asking judicial notice that

    25 on the 6th of March, 1992, Bosnia-Herzegovina succeeded

  38. 1 to the Geneva Convention regarding the prohibition

    2 against genocide. The Defence appears to be focusing

    3 their response on whether that action was lawful or

    4 unlawful, that is, the import of that action. So in

    5 that regard, we would suggest it is somewhat

    6 non-responsive to our request for judicial notice of

    7 the date the action was taken.

    8 Concerning number 4, the fact that

    9 Bosnia-Herzegovina declared its independence on the 3rd

    10 of March of 1992, again we are somewhat confused by the

    11 Defence response. It alleges that this was an illegal

    12 act. Again, it appears to go to the import of the act

    13 rather than whether indeed that declaration was made on

    14 that date, which is what we are asking judicial notice

    15 of.

    16 As to number 5, in that we are asking

    17 judicial notice that the European Community recognised

    18 the independence of Bosnia-Herzegovina on 6th April,

    19 1992, and that the United States tendered such

    20 recognition on the 7th of April, 1992.

    21 The Defence, in their response to this,

    22 indicates that the European Community and the United

    23 States may have recognised Bosnia-Herzegovina at those

    24 times but that, by that recognition, they somehow

    25 caused the conflict. So, again, they seem to be making

  39. 1 an argument based upon the import of the recognition

    2 rather than disputing the dates that we are asking be

    3 judicially noticed and the act that occurred on those

    4 dates.

    5 As to numbers 6 and 7, the Defence indicates

    6 they have been provided no evidence that would verify

    7 these requested dates, and we will provide the Defence

    8 with that information and perhaps, once they receive

    9 it, they can determine whether or not they would

    10 stipulate to that judicial notice.

    11 So we undertake to provide them with that

    12 information so they may make that decision regarding 6

    13 and 7.

    14 Again, Your Honour, we would suggest that

    15 what we are asking here be judicially noted would be a

    16 saving of judicial time and resources, and that we are

    17 asking the Court to recognise that on particular dates,

    18 certain declarations or recognitions were made. The

    19 import of those would have to be developed at trial,

    20 and certainly judicial notice of the dates that these

    21 declarations or recognitions were made would in no way

    22 prevent the Defence, if they choose to make it their

    23 defence to argue that other countries caused what

    24 happened in the former Yugoslavia, judicial notice of

    25 what we are requesting would not preclude them from

  40. 1 raising such a defence.

    2 So we would ask that as to 3 through 5, that

    3 at this time you would take judicial notice of those

    4 facts; and as to 6 and 7, we will provide information

    5 to the Defence, and then, if necessary, we may come

    6 back to you and either have further argument on it or

    7 indicate stipulations.

    8 JUDGE MAY: Yes. Who is going to deal with

    9 this?

    10 MR. VUCICEVIC: Your Honours, on the items 3

    11 to 7, this is not only the dates that Defence is

    12 objecting to, because if you would consider that the

    13 only relevant dates are going to be admitted, why is

    14 the Prosecutor suggesting it? They're suggesting it to

    15 avoid admitting these dates through their expert

    16 witnesses. If the expert witness were to testify on

    17 these purely political acts, we would get the

    18 opportunity to cross-examine them and bring out all of

    19 these side issues that are being left to us and you to

    20 hear it. But how are we going to get to them? That's

    21 the depth of our objection. Would we have them to put

    22 witnesses to question the substance or propriety or

    23 legality? That's the response. But in their request

    24 for judicial notice, there were not dates, there were

    25 not how these events came about. Why did they come

  41. 1 about? What type of evidence is going to be even

    2 necessary for us to consider whether or not April 6th

    3 was the date when the European Community recognised

    4 Bosnia and Herzegovina or United States recognised --

    5 or 7th. I think these are the very important issues.

    6 The issue is here: Who precipitated Bosnian

    7 civil war and who had enough knowledge and should have

    8 had enough knowledge when to act or not to act? Was it

    9 government of the United States and Western European

    10 nations that jumped to conclusions when they should

    11 have known better? Even they were warned by some

    12 foremost world diplomats. Or is it Dr. Kovacevic that

    13 made the plan? That's what issue is here. They're

    14 trying to kind of bypass it.

    15 We want a trial on the issues. Please don't

    16 take it away from us.

    17 JUDGE CASSESE: Mr. Vucicevic, may I ask you

    18 a question? One point you are contesting is that

    19 Bosnia-Herzegovina succeeded to the Genocide Convention

    20 of 1949 as from the 6th of March, 1992. Would you say

    21 that the succession of a State to another State with

    22 regard to an International Convention is a legal fact

    23 and that this legal fact is well known because the

    24 depository of the Genocide Convention, namely the

    25 United Nations, has made known to everybody when this

  42. 1 succession took place? We all know that the

    2 Secretary-General, being the repository on behalf of

    3 the UN of all the treaties which have been negotiated

    4 and concluded under the auspices of the UN, has the

    5 right and duty to give anybody, even private

    6 individuals, a document stating when a particular State

    7 has succeeded to another State with regard to a

    8 particular treaty. So this is a legal fact.

    9 Succession of Bosnia-Herzegovina with regard to the

    10 Genocide Convention.

    11 MR. VUCICEVIC: Your Honour, your question

    12 goes beyond the request that was presented in the

    13 request of judicial notice, as I understand it. But I

    14 welcome it, and may I just have a short conference with

    15 my respected colleague, Professor D'Amato, because he

    16 is the authority on the issue?

    17 JUDGE CASSESE: Sorry, before doing so, just

    18 please read again number 3 of the Prosecutor's request

    19 for judicial notice where it is stated Bosnia and

    20 Herzegovina succeeded to the Genocide Convention with

    21 an effective date of 6th of March and so on. That is

    22 the issue.

    23 MR. VUCICEVIC: If you are talking about item

    24 3, Bosnia and Herzegovina committed illegal secession;

    25 seceding, split. My idea --

  43. 1 JUDGE CASSESE: What is the relevance?

    2 MR. D'AMATO: It's the wrong word.

    3 MR. VUCICEVIC: It is the wrong word. I

    4 think, you know, we are talking -- I might have used

    5 the wrong word here.

    6 JUDGE CASSESE: We are speaking of

    7 succession, State succession, succeeded to the Genocide

    8 Convention. Not seceded.

    9 MR. VUCICEVIC: Seceded.

    10 JUDGE CASSESE: We are talking of a different

    11 matter, and this is legal fact, as I say. If you look

    12 up the relevant UN document, which is an official

    13 document, and we are a UN body, a subsidiary body of

    14 the Security Council, so we are entitled and actually

    15 we are duty-bound to know the legal documents of the

    16 UN, you will find this particular date. You will

    17 find that it is stated there that Bosnia-Herzegovina

    18 succeeded to the Genocide Convention, namely, became

    19 bound by the Genocide Convention, as from the 6th of

    20 March, 1992. It's a legal fact. I don't see why we

    21 should not take judicial notice of something that is

    22 taught in any university.

    23 MR. VUCICEVIC: Your Honour, the reason for

    24 my objecting is, it's not whether this is a legal fact

    25 but an underlying premise is whether or not secession

  44. 1 of Bosnia and Herzegovina was illegal under Yugoslav

    2 Constitution at that time. If the underlying fact,

    3 substance, is illegal, is the form good enough to cover

    4 illegal substance? That's what the import of my

    5 rejection to accept this proposition.

    6 I believe Your Honour is entirely correct,

    7 but what I was addressing, I was addressing the

    8 substance. If nobody has examined -- and this is, you

    9 know, a judicial function, to examine legality of

    10 secession, of splintering the country, and subsequent

    11 recognition whether or not that was a lawful under

    12 international conventions and accords, if that is the

    13 substance, if it is saying, "We are going to disregard

    14 all of it," only to cloak it with a form, then I would

    15 agree with you. But in principle, I cannot, because I

    16 don't think that unsavoury practice should be covered

    17 with sacrosanct robes of this court.

    18 JUDGE CASSESE: May I point out that, as I

    19 say, first of all, there is a misunderstanding here, we

    20 are speaking of succession, State succession. In any

    21 case, since you have agreed to point 1, namely, that

    22 genocide, the crime of genocide, is laid down in a

    23 pre-emptory norm of customary international law, not

    24 only a rule of customary international law but pre-emptory

    25 rule of customary -- which is very strong, and I'm

  45. 1 delighted that you accept this proposition, I, in a

    2 way, it does not matter -- it matters very little

    3 whether or not Bosnia-Herzegovina succeeded to the

    4 Convention because, in any case, it was bound by the

    5 customary rules of international law on genocide.

    6 Whether or not it was bound by the Convention, in any

    7 case, it was bound by the customary rules. And you did

    8 agree that the prohibition of genocide is laid down in

    9 a pre-emptory rule.

    10 But let us move on to point 4. Would you say

    11 that the fact that Bosnia-Herzegovina declared its

    12 independence on the 3rd of March, 1992, is an

    13 historical fact?

    14 MR. VUCICEVIC: I don't know. I've been

    15 reading papers in those days but, Your Honour, I don't

    16 have independent recollection. And honestly, because

    17 we've been so busy preparing for the trial, I didn't

    18 get the chance to go through all papers and something

    19 to look at it. I know it happened in -- but I can

    20 recall an incident that a US congressman came to

    21 Chicago and talked to us two days before US

    22 recognised the country and says, "President Bush is

    23 going to recognise Bosnia. We'd just like to let you

    24 know." I know about it. It seems from here that

    25 Bosnia declare independence a month before that

  46. 1 time. I cannot agree to something that --

    2 JUDGE CASSESE: Mr. Vucicevic, I am sure that

    3 you know very well the so-called Keesing's Archives,

    4 which is a collection of records of well-known -- they

    5 can be found in any library or bookshop and so on. If

    6 you look up the Keesing's archives, you will see that

    7 it is stated there as a fact, as a fact, as an

    8 historical fact, that Bosnia-Herzegovina declared its

    9 independence.

    10 I'm not saying that you should accept the

    11 legality of this declaration or any legal inference

    12 from this fact, but it is a fact. Whether, as I say,

    13 they were wrong politically, legally, and so on, is a

    14 different issue. And, again, I wonder whether also the

    15 recognition by the European Community and by the United

    16 States to your mind are not simply facts which may be

    17 taken judicial notice of.

    18 MR. VUCICEVIC: The duty of this Tribunal,

    19 just as any other court in the world worth its weight,

    20 is to examine the facts, and that's what I'm asking of

    21 you because trying to say that some political acts are

    22 more facts than are facts examined before this court,

    23 it's kind of difficult for me to accept.

    24 I run away from a political system 25 years

    25 ago that kind of had that similar type of an aura of

  47. 1 it, and maybe -- I had given up the practice of

    2 medicine to become a lawyer; I am devoted to it.

    3 That's all I can tell you. Examination of the facts is

    4 I think what a trial is all about.

    5 Thank you.

    6 JUDGE MAY: We shall take judicial notice as

    7 follows: One and two are not disputed, so we will take

    8 judicial notice of those matters. Three to five, we

    9 propose to take judicial notice of these dates. These

    10 are matters of fact; they are not matters which are in

    11 dispute. The legal import, the legal significance of

    12 these dates and these events are, of course, matters

    13 entirely to be decided during the trial. But that

    14 these things happened on the particular day which it is

    15 said they happened, we will take judicial notice of

    16 that.

    17 As for 6 and 7, in order to expedite matters

    18 and not to hold matters up further, we will take

    19 judicial notice of those matters but subject to the

    20 Prosecution presenting the relevant documents, and we

    21 will give the Defence leave to raise the issue again if

    22 they wish to do so having seen the documents.

    23 But subject to those matters, we will take

    24 judicial notice.

    25 That brings us to the last motion which may

  48. 1 take us beyond the adjournment. I have in mind

    2 adjourning in about a quarter of an hour, something of

    3 that sort.

    4 MR. D'AMATO: Point of order, Your Honour?

    5 There were also some additional matters at the end of

    6 my response to their brief where I asked the Court to

    7 rule on a few issues, and I don't see that those are on

    8 your list.

    9 JUDGE MAY: They weren't. But I remember

    10 that. We will look at that overnight and see if we can

    11 deal with them.

    12 That, in fact, Ms. Hollis, brings us to the

    13 pre-trial admissions. But before we deal with that and

    14 before we leave the matters of judicial notice, it

    15 might be helpful to the Trial Chamber if a chronology

    16 could be produced. Certainly, experience suggests that

    17 a document of that sort is helpful in deciding issues,

    18 a chronology of significant events, if the Prosecution

    19 would provide such a document? Again, it would have to

    20 be produced in the form of a preliminary document, it

    21 will be subject to argument and that sort of thing, but it

    22 would be useful as a skeleton for us to follow the

    23 events.

    24 MS. HOLLIS: Yes, Your Honour, we will do

    25 that. Do you have a suspense or a deadline for us on

  49. 1 that, or just as soon as we --

    2 JUDGE MAY: As soon as you can.

    3 MS. HOLLIS: Yes, Your Honour.

    4 JUDGE MAY: Pre-trial admission. The motion,

    5 together with Attachment "A", being the documents which

    6 are referred to, and it seems at a cursory glance there

    7 are more than 300 of them, I am merely asking this

    8 question: What is the effect of the motion if we were

    9 to make the order admitting these documents into

    10 evidence? Presumably the effect would be that you

    11 would then not have to call any evidence in order to

    12 produce them. But deciding the import and effect again

    13 will, of course, be a matter entirely for us, the Trial

    14 Chamber, but the documents, as it were, would be

    15 admitted without further evidence.

    16 Am I right in saying that's the effect of

    17 what you are asking?

    18 MS. HOLLIS: In large part, that would be,

    19 Your Honour. We would certainly not have to bring in

    20 witnesses who would testify to the authenticity of the

    21 documents. That would already have been accepted by

    22 the Trial Chamber.

    23 We suspect that with many of the documents,

    24 we would have witnesses that would talk about them, so

    25 that it would not entirely preclude testimony relating

  50. 1 to them but would expedite matters in that they would

    2 already have been admitted and, for a substantial

    3 number, it is possible we would not then have

    4 additional evidence brought forth on them.

    5 But in regard to this motion, Your Honour, if

    6 I could simply state that the Defence suggestion in

    7 their response, that this is a matter that perhaps

    8 could be better resolved at a later date after the

    9 Defence and the Prosecution have met and discussed the

    10 documents one by one, then if a hearing was needed on

    11 disputed documents, we could have it; if not, we could

    12 simply come forward and say that the Defence and the

    13 Prosecution both agree to the introduction of these

    14 into evidence.

    15 So perhaps this is a matter that would be

    16 better dealt with at a later time and dealt with more

    17 efficiently after we've had an opportunity to discuss

    18 this with the Defence.

    19 JUDGE MAY: That seems, if I may say so, a

    20 very sensible course. When would it be intended that

    21 you would be discussing these matters with the

    22 Defence?

    23 MS. HOLLIS: That would depend in part on the

    24 scheduling of the trial. It would certainly be

    25 sometime in the not-too-distant future that we would

  51. 1 sit down and discuss these documents with them.

    2 One of the points that they made, without

    3 taking their argument away from them, but one of the

    4 points they made in their response was that they don't

    5 believe they're yet in receipt of all the documents.

    6 We did provide all of these to them either on the 28th

    7 of February or, more recently, on the 20th of April.

    8 Now, whether they've actually had a chance to receive

    9 them and digest them is a separate matter.

    10 I'm sorry, the 28th of January and the 20th

    11 of April.

    12 So that they have received them, but they

    13 perhaps have not been able to fully digest them yet.

    14 JUDGE MAY: So what you would suggest is that

    15 we make no ruling on the motion at this time subject to

    16 a conference between the parties to resolve the

    17 matter?

    18 MS. HOLLIS: Yes, and we again are making

    19 that in support of the Defence request. I believe that

    20 is what they have requested.

    21 JUDGE MAY: Well, that's what I think we

    22 would be minded to do.

    23 Does anybody want to say anything about that

    24 from the Defence's point of view?

    25 MR. VUCICEVIC: I welcome the suggestion from

  52. 1 the Senior Trial Attorney Hollis, and I am the

    2 responsible person for this answer. I have been in

    3 receipt of the material, I have read all the material

    4 that was given to us in January and February, what has

    5 been turned over to the Defence before this Trial

    6 Chamber was empanelled. But when I looked at this list,

    7 I could not just recall half of these documents. I

    8 have read just about half of the witness statements

    9 that had been given to us about three weeks ago, and

    10 that's why I said, you know, I just didn't see them.

    11 I'm not saying that they were not sent, I'm not saying

    12 that -- maybe my memory is failing, but, you know, I

    13 have read them quite a few times. That's why I

    14 suggested that a conference indeed would be very

    15 proper.

    16 What I -- on the substantive -- and I think

    17 we can go -- but on the substantive approach of

    18 attempting all of this evidence without giving Defence

    19 an opportunity to cross-examine not only the foundation

    20 but the substance, who authored what, we might be faced

    21 in the position the Trial Chamber will have to read a

    22 lot of newspaper articles and memos from different

    23 committees and whatnot without us ever questioning what

    24 is in there and how relevant is this to the indeed very

    25 specific charges of complicity and genocide that has

  53. 1 been laid out by Professor D'Amato in his response to

    2 pre-trial brief. That's why we have to tailor this

    3 submission of evidence as to foundation, relevance to

    4 the crime that he is charged with. That's why this

    5 conference, I welcome it, I expect it to be very

    6 productive, but remembering some of the articles, you

    7 know, that I read in, you know, they're just too far

    8 afield from the charges that are pending against my

    9 client.

    10 JUDGE MAY: Very well. That motion will be

    11 adjourned for a conference between the parties to be

    12 listed at least 28 days before trial, if needed.

    13 MR. VUCICEVIC: If I may, Your Honours,

    14 because instead I would welcome it if they could do it

    15 within the next few days because I would -- because we

    16 had scheduled our time to be here for trial. That

    17 material has been given to us, some in January, so it

    18 is immense amount of material, that we can get

    19 opportunity, because Prosecutor is so much familiar

    20 with it, to enable us to digest it now and be prepared

    21 later on than to be swamped on the eve of trial, as it

    22 could have happened now if we were to proceed today.

    23 And I'm not -- you know, I know that they are under the

    24 same burden as we are, but as long as we can use

    25 this -- allow in the proceedings to deal effectively

  54. 1 with that.

    2 JUDGE MAY: Clearly, that is a sensible

    3 suggestion, that the matter could be dealt with, if

    4 possible, this week.

    5 MS. HOLLIS: Yes, Your Honour.

    6 JUDGE MAY: And we would commend that.

    7 MS. HOLLIS: Yes, Your Honour. We will do

    8 that.

    9 JUDGE MAY: Very well. That leaves the

    10 matter on which we have to rule, which we can do

    11 tomorrow morning. It leaves the matter which has to be

    12 dealt with in closed session. I don't know whether the

    13 Defence are in a position to deal with that, the other

    14 motion in relation to matters which have to be dealt

    15 with in closed session.

    16 MR. D'AMATO: And that other issue for

    17 tomorrow.

    18 JUDGE MAY: Can you, Mr. Keegan or

    19 Ms. Hollis, whoever is dealing with this, Mr. D'Amato

    20 refers to the matters he raised in answer to the

    21 pre-trial brief -- you may remember those matters.

    22 MS. HOLLIS: In response to the pre-trial

    23 brief, Your Honour?

    24 JUDGE MAY: Yes.

    25 MS. HOLLIS: We have, of course, reviewed

  55. 1 that and will be able to make initial comments, but we

    2 haven't had the time to do any in-depth response to

    3 that, Your Honour.

    4 JUDGE MAY: But we could consider it in the

    5 morning.

    6 MS. HOLLIS: If we're allowed to simply give

    7 our preliminary inputs on that.

    8 JUDGE MAY: Yes. That would be useful. And

    9 after that, we'll have a status conference. Bearing in

    10 mind that we shall start at 10.00 and we have to finish

    11 tomorrow by half past twelve, at least the morning

    12 session.

    13 --- Whereupon proceedings adjourned at

    14 3.45 p.m. to be recommenced on 12 May,

    15 1998 at 10.00 a.m.