Judge David Hunt, Presiding
Judge Fouad Riad
Judge Wang Tieya
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna

Mrs Dorothee de Sampayo Garrido-Nijgh

Order of:
7 December 1999



Zejnil DELALIC, Zdravko MUCIC (aka “PAVO”), Hazim DELIC
and Esad LANDZO (aka “ZENGA”)




Office of the Prosecutor:

Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Mr Rodney Dixon

Counsel for the Defence

Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landžo


Although I agree with the reasoning of the Order issued by the Appeals Chamber today, and was able to join the other members of the Appeals Chamber in reaching a unanimous decision, I feel compelled to express my doubt as to the timing for making the decision. Indeed, I am of the view that it is premature for the Appeals Chamber to decide on the issues raised in the Appellant’s Motion.

In his Motion, Landzo argues that the testimony of the proposed witnesses is necessary in order to demonstrate that he or his counsel took steps during the trial to address the issue of the presiding Judge allegedly sleeping during substantial portions of the trial ("Landzo’s fourth ground of appeal"). Landzo contends in his Motion that such evidence would be necessary to establish that he did not waive his right to raise on appeal such a ground. However, Landzo himself acknowledges in his Motion that the waiver issue is raised in anticipation: "Appellant (…) anticipates that the Prosecution will raise the issue of waiver" (emphasis added). In addition, the Prosecution, in its Response to the Motion, inter alia submitted that the Motion should not be granted on the basis that the Appellant is requesting an anticipatory remedy.

Of course I am aware that the Prosecution has stated, in previous filings, its intention to respond to Landzo’s fourth ground of appeal by arguing that he has waived his right to raise this argument. However, as noted in today’s Order, the Prosecution in its Response to Landzo’s present Motion, has submitted that it is prepared to accept that the Appellant took some steps to raise the issue of the sleeping Judge at trial.

In my opinion, the issue of whether Landzo waived his right to argue that Judge Karibi-Whyte was asleep during portions of the trial is not yet an issue in the appeal, as this ground has not yet been briefed by the parties, and as it has not been formally raised by the Prosecution. It is therefore unclear, at this stage, what the issues in contention in relation to this ground will be, including matters concerning the waiver issue, and thus what evidence the Appellant will need to rely on in support of this ground of appeal. I am of the view that in the interests of the efficient administration of justice, only issues that are clearly before the Tribunal should be considered, as opposed to issues that are merely hypothetical.

For these reasons, I am of the opinion that the Appeals Chamber should have deferred a decision in this matter until it has had the benefit of reading the Appellant and Respondent Briefs in relation to this ground of appeal, and thereby knowing with certainty what the position in relation to evidence needed will be.


Judge Mohamed Bennouna

Done this seventh day of December 1999
At The Hague,
The Netherlands.

[Seal of the Tribunal]