Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2899

1 Tuesday, 20th May 1997

2 (2.30 pm)

3 JUDGE KARIBI WHYTE: Good afternoon, ladies and

4 gentlemen. Can we have the appearances first, please?

5 MR. OSTBERG: Yes, your Honour. I am Eric Ostberg. I

6 appear today with Mr. Giuliano Turone, Ms. Teresa McHenry

7 and Ms. Elles van Dusschoten. Thank you, your Honour.

8 JUDGE KARIBI WHYTE: The appearances for the defence?

9 MS. RESIDOVIC (in interpretation): Your Honours, I am Edina

10 Residovic, defence counsel of Mr. Zejnil Delalic. With

11 me in the team is Mr. Eugene O'Sullivan, Professor of

12 Criminal Law from Canada. With us today also we have

13 Mr. David Lee as our representative at this hearing. He

14 is a lawyer from London. Thank you.

15 MS. McMURREY: Your Honours, present for Esad Landzo today I

16 am Cynthia McMurrey from the United States with Judge

17 John Ackerman. Also in the gallery is the Honourable

18 Mustafa Brackovic. Thank you.

19 JUDGE KARIBI WHYTE: Thank you very much.

20 MR. OLUJIC: Your Honour, allow me to introduce myself. I

21 am Zeljko Olujic, an attorney from Croatia. I am

22 defence counsel for Mr. Pavo Mucic. With me in the team

23 is Mr. Michael Greaves, attorney from the United Kingdom.

24 JUDGE KARIBI WHYTE: Welcome to the team, Mr. Olujic. We

25 knew you were coming. You were approved as lead

Page 2900

1 counsel. Thank you.

2 MR. OLUJIC: If your Honours allow, as I have just joined

3 the defence team, may I present three main reasons and

4 strategic goals set out by the previous defence counsel,

5 to which I should like to make a few corrections, if

6 your Honours would allow?

7 JUDGE KARIBI WHYTE: We will allow most things. I have

8 read what I regard as your motion. Did you actually

9 clear this with Mr. Greaves? Did you discuss it with

10 him?

11 MR. OLUJIC: No, we have still not had time to discuss this,

12 but these submissions have been given to the Trial

13 Chamber, and that is the position of the new defence

14 counsel, which differs from the strategy of the defence

15 counsel up to the 16th of this month.

16 JUDGE KARIBI WHYTE: I actually thought you would have

17 discussed it with him since he has been in the matter

18 even before you came in. Speaking for myself and for

19 the Trial Chamber, an opening statement is not a very

20 important part of the proceedings. You still have your

21 time while the proceedings is going on to know how to

22 determine your strategy, especially with very capable

23 counsel in the chambers dealing with your matter. So I

24 do not really see the basis for this opening

25 statement.

Page 2901

1 MR. OLUJIC: Very well, your Honour. Thank you.

2 MR. KARABDIC (in interpretation): Your Honours, my name is

3 Salih Karabdic, attorney from Sarajevo, defence counsel

4 for Mr. Hazim Delic. With me in the team is Mr. Tom

5 Moran, attorney from Houston, Texas.

6 JUDGE KARIBI WHYTE: Thank you very much, Mr. Karabdic.

7 I think that is where we stopped. Where do we continue

8 today?

9 MR. OSTBERG: As far as the prosecution is concerned, we are

10 prepared to go on and have witnesses to call. On the

11 other hand, I have understood already that there are

12 some submissions from the defence before that.

13 JUDGE KARIBI WHYTE: Let us know exactly in what respect

14 the submissions are being made.

15 MR. LEE: Your Honours, may I briefly address the Tribunal

16 to explain the position that I occupy, and I will take a

17 little time? May I say my name is David Lee. I was

18 called to the Bar of England and Wales in 1973 and I am

19 a member of Grays Inn in general practice in chambers in

20 London. I specialise in criminal law.

21 I have been instructed to advise Ms. Edina

22 Residovic and Mr. Eugene O'Sullivan personally.

23 MR. OSTBERG: I just want to inform the Trial Chamber that

24 the matter that is now going to be taken up is the one

25 we discussed in private session the last time we were

Page 2902

1 sitting. Just for the sake of caution I put that

2 before your Honours.

3 JUDGE KARIBI WHYTE: Actually, I only want to know the

4 basis of the submissions, because it has to be on a

5 matter before the Trial Chamber.

6 MR. LEE: It has to do with the position of defence counsel

7 in relation to the proposed hearing this afternoon.

8 For my part, I would have thought, since the discussions

9 out of which it arises were conducted in closed session,

10 that it may be more appropriate for my remarks to be

11 made in closed session than open, and I believe that

12 that would be concurred in by the prosecution and

13 probably others who may or may not know of the basis of

14 it. As an excess of caution I would ask your Honour to

15 consider going into closed session for a short time, so

16 that I can explain my position here.

17 JUDGE KARIBI WHYTE: Now before you go on, our last closed

18 session discussion terminated the participation of this

19 Trial Chamber in that matter, because we said we are

20 referring the matter to the President.

21 MR. LEE: I entirely agree with that.

22 JUDGE KARIBI WHYTE: At the end of those proceedings we

23 were no longer involved in what is going on in that

24 discussion.

25 MR. LEE: I entirely accept that. It has to do --

Page 2903

1 JUDGE KARIBI WHYTE: Do I not see how you come into that

2 type of discussion.

3 MR. LEE: It has to do, your Honour, with respect, with

4 regard to the personal position of the defence advocates

5 in relation to the continued proceedings this afternoon.

6 JUDGE KARIBI WHYTE: Are you counsel in these proceedings?

7 MR. LEE: Your Honour, I am instructed on behalf of those

8 persons individually. I have no instructions, nor do

9 I seek them, in relation to any Defendant before these

10 proceedings in front of you.

11 JUDGE KARIBI WHYTE: None of them is an accused person

12 before us or a defendant before the Trial.

13 MR. LEE: As I have indicated, it is certainly my

14 application, and I know that both of the lawyers who

15 I have mentioned were anxious that I indicate to the

16 Trial Chamber their personal professional positions with

17 regard to these proceedings. As I have indicated, it

18 seems to me appropriate that will be done in closed

19 session with regard to the fact that it does -- the

20 decision of referral on 16th May provides the background

21 to what I have to say.

22 JUDGE KARIBI WHYTE: I hope you have not misunderstood

23 me. What I said at the conclusion of that proceeding

24 that day and we decided to refer that matter to the

25 President.

Page 2904

1 MR. LEE: I understand that fully.

2 JUDGE KARIBI WHYTE: We became functus officio as far as

3 that was concerned.

4 MR. LEE: I accept that entirely.

5 JUDGE KARIBI WHYTE: I do not know how in this regard this

6 Trial Chamber will go into that matter again. What

7 I understand is you suggest in continuing proceedings

8 counsel would still want to be represented in their

9 reluctance to continue. This is the argument.

10 MR. LEE: I will explain.

11 JUDGE KARIBI WHYTE: I see that, but my predicament is that

12 you are not a counsel in these proceedings and any of

13 them could have made a statement indicating what he

14 wants.

15 MR. LEE: I accept that, but the position is simply this, as

16 I understand it. My professional clients are entitled

17 in circumstances such as this to seek independent

18 advice, which they have done, with regard to their own

19 positions.


21 MR. LEE: Professionally and otherwise.

22 JUDGE KARIBI WHYTE: When the accused are in jeopardy.

23 MR. LEE: As a matter of courtesy they have instructed me to

24 apply for leave from this Trial Chamber to explain very

25 briefly to the Trial Chamber their position which they

Page 2905

1 have reached with regard to their professional decision

2 with regard to their position, having regard to the

3 continuing calling of evidence in relation to this

4 matter.

5 JUDGE KARIBI WHYTE: Please do not misunderstand me. I am

6 not trying to be difficult. I am trying to be purely

7 formal about what we are doing. As far as our rules

8 go, this might be the first time counsel appearing

9 before us for the accused persons have also enlisted

10 other counsel to appear on their behalf. Now we have

11 no provision for any other counsel appearing other than

12 counsel appearing on behalf of the accused persons.

13 MR. LEE: Well, certainly I would accept entirely that any

14 participation which I would seek to have in this Trial

15 Chamber but for the fact that it is to explain to the

16 Trial Chamber the personal position of those who have

17 instructed me, that is to say the lawyers themselves,

18 I entirely, with respect, agree entirely with what your

19 Honour says, but in my submission the position here is

20 quite different. I am here not to intervene in regard

21 to the proceedings themselves. I am merely here to

22 hopefully illustrate a decision which has been made by

23 my clients in respect of their continued participation

24 at this particular stage of the Tribunal business.

25 JUDGE KARIBI WHYTE: I am afraid we have always tried to

Page 2906

1 make it clear that we do not want to be involved in these

2 other proceedings, being the Trial Chamber before which

3 this matter is going on. Whatever you will now say

4 will appear to be getting us into the whole exercise.

5 When the President comes in, you might be able to

6 represent anybody you want to there, but I see nothing

7 insidious in any counsel who does not want to continue

8 with the proceedings because of this difficulty in

9 saying so.

10 MR. LEE: Well --

11 JUDGE KARIBI WHYTE: I see nothing, because it is counsel's

12 right.

13 MR. LEE: Yes, of course.

14 JUDGE KARIBI WHYTE: Counsel's right.

15 MR. LEE: May I say --

16 JUDGE KARIBI WHYTE: Because whatever submission anyone

17 has, he is free to make it.

18 MR. LEE: Of course. May I say, your Honour, the position

19 is quite clear. I want to make it quite clear that, in

20 fact, both Ms. Residovic and Mr. O'Sullivan felt that it

21 was a matter of actual courtesy to the Tribunal that

22 what they had to say was said on their behalf by myself,

23 because of the serious position and the serious decision

24 which they had taken as a result of this matter.

25 JUDGE KARIBI WHYTE: My fear, as I told you, I am not sure

Page 2907

1 you have a locus here. I am not too sure, because you

2 have to be representing someone, which as far as I know

3 you are not, because those whom you claim to represent

4 are not accused persons before us.

5 MR. LEE: I accept that. I accept that. Of course, I am

6 in your Honour's hands. I do not purport to represent

7 any Defendant in these proceedings, as your Honour

8 knows, and I am entirely in the Tribunal's hands, as

9 I have indicated, I hope quite clearly. The position

10 that I had sought to adopt I have made clear, I hope,

11 and I respectfully apply to be heard on their behalf at

12 their request in closed session to explain the decision

13 they have taken, but I am entirely in the Tribunal's

14 hands, of course, as to whether the Tribunal grants me

15 leave to be heard on that matter and that matter

16 alone. On that basis I will be repeating again, and

17 repetition never increases the force of an argument, I

18 am in the Tribunal's hands as to whether or not I should

19 be heard in that capacity or not.

20 JUDGE KARIBI WHYTE: I think I will repeat this, that if

21 these are proceedings of the Trial Chamber in respect of

22 the matters involving these accused persons, I do not

23 see how your locus comes in.

24 MR. LEE: Well, it has to do with the fact that I think that

25 I can be quite blunt and say if the Trial Chamber

Page 2908

1 proceeds to hear evidence from witnesses regarding the

2 business before the Trial Chamber, my present

3 instructions are that in relation to both Ms. Residovic

4 and Mr. O'Sullivan that they feel professionally

5 precluded from acting on behalf of Mr. Delalic at this

6 stage.

7 JUDGE JAN: May I say something? I hope you read the

8 closing observations of the Chamber on the last occasion

9 --

10 MR. LEE: I have.

11 JUDGE JAN: -- the Chamber met. Maybe the incident has

12 nothing to do with the Tribunal at all.

13 MR. LEE: I accept that.

14 JUDGE JAN: Why should counsel feel hesitant because we

15 said something that is no cloud on anyone, so they can

16 carry on their function without any fear, without any

17 sort of hesitation altogether. I do not think it is

18 really necessary to go into this matter at this stage.

19 Let the inquiry be held. Maybe this has nothing to do

20 with the Tribunal at all, including the defence

21 counsel. In fact, the article in question had itself

22 indicated the source from which it could have obtained

23 information, and it is entirely outside the Tribunal.

24 Why should counsel be hesitant? Why should they feel a

25 little handicapped in any way?

Page 2909

1 MR. LEE: May I say that I understand fully that everyone in

2 this room proceeds on the basis it has nothing

3 whatsoever to do with defence counsel and that is

4 entirely accepted and entirely understood.

5 JUDGE KARIBI WHYTE: I think it would be fair if you define

6 your status in relation to the Trial Chamber. Just let

7 us know how you come to be counsel in these

8 proceedings.

9 MR. LEE: As I have indicated before, I was instructed

10 personally by Mr. O'Sullivan and Ms. Residovic in their

11 personal capacity. I do not seek nor do I claim any

12 right of ordinance beyond that. As I say, I repeat

13 myself if I go beyond that. The position is simply

14 this. I have had responsibility, however, to advise

15 them in respect of certain professional matters which

16 arise out of the fact, and I accept entirely it has

17 nothing to do with this Trial Chamber, but the referred

18 complaint of a seriousness which it is hard to say --

19 one could not see it being more serious than it is, has

20 nonetheless left them in a position where, until that

21 matter is resolved, acting, as they must do on behalf of

22 their Defendant fearlessly and without favour and

23 without concern for personal position, they nonetheless

24 perceive a potential -- I say potential, not actual -- a

25 potential conflict of interest that has arisen. That

Page 2910

1 conflict, may I say, is very likely to be completely

2 removed at the end of the investigation, which

3 I anticipate the President may or may not call into this

4 matter.

5 JUDGE KARIBI WHYTE: One has granted you audience out of

6 courtesy purely because, as I said, I do not see how

7 they become accused persons or how they become

8 defendants, in which respect they needed counsel.

9 MR. LEE: There is no question --

10 JUDGE KARIBI WHYTE: If they are not, then why do you have

11 Defendant and counsel?

12 JUDGE JAN: Why should you presume the odium will fall on

13 them? The enquiry is not even held. In fact, it is

14 found later on the defence and the Tribunal has nothing

15 to do with that, it will be all wasted time. Why do

16 you presume there will be?

17 MR. LEE: If I may say so, that is completely understood.

18 They are in no way treating themselves in that position,

19 but the reality is in relation to this counsel's duty,

20 as one perceives their position, is also to consider,

21 however the scope for potential conflict which may

22 arise. This is the point which they are making.

23 JUDGE KARIBI WHYTE: If they had analysed the position

24 properly, analysed the legal implications of the facts,

25 perhaps you would have come in at a later stage, at a

Page 2911

1 stage they are sure there is anything to defend, not

2 now, when all you want to do is to announce to the Trial

3 Chamber certain things. This is not important, because

4 you are in no way concerned with the proceedings of this

5 Trial Chamber.

6 MR. LEE: Very well.

7 JUDGE KARIBI WHYTE: As far as I am concerned there is a

8 procedure for getting counsel on the Trial Chamber.

9 I am not sure -- nothing has been referred to me about

10 your case.

11 MR. LEE: I have attempted in the short time available to me

12 to attempt to comply with the formal requirements as

13 best I could, and I have also tried to make it clear as

14 best I could out of courtesy the position, which I hope

15 the Trial Chamber will understand is not an easy one for

16 someone in my position to adopt. I preface all my

17 remarks by saying it probably sounded very discourteous

18 of me to introduce it in this way, but I hope it is

19 understood to be as courteous as I could be to the

20 Tribunal to indicate the position I am instructed to

21 adopt.

22 My position is simply this: having regard to the

23 fact and as anticipated by both of the clients who have

24 instructed me, it is anticipated by them that they are

25 in no way suspected directly or indirectly by anyone,

Page 2912

1 anticipated entirely, but nonetheless the position that

2 I was simply to make clear was they nonetheless until

3 the resolution of that matter in relation to their

4 client and themselves and, indeed, everyone else who is

5 a potential source of investigation has been dealt with,

6 which in our respectful submission would be a relatively

7 short time, until such time as that, they find

8 themselves professionally embarrassed with regard to

9 conducting cross-examination of witnesses.

10 JUDGE KARIBI WHYTE: I am not going into the details. I

11 am only saying it would be improper for me to accept you

12 as counsel to anybody.

13 MR. LEE: I accept that.

14 JUDGE KARIBI WHYTE: That is what I am saying, because

15 I have tried --

16 MR. LEE: Of course.

17 JUDGE KARIBI WHYTE: -- to make you realise that that is

18 the order. If you are counsel to anybody, obviously

19 you have all that.

20 MR. LEE: I am very grateful to the court for that

21 indication. Unless I can assist the court further,

22 those are, therefore, my submissions before it.

23 JUDGE KARIBI WHYTE: It would be improper for me to do

24 that.

25 MR. LEE: Thank you.

Page 2913

1 JUDGE KARIBI WHYTE: I have other reasons for doing so.

2 MR. LEE: Of course. I am grateful.

3 JUDGE KARIBI WHYTE: Yes, Ms. Residovic?

4 MS. RESIDOVIC (in interpretation): Your Honour, we tried to

5 convey through our legal representative our decision,

6 Mr. O'Sullivan's and mine. I apologise if this was not

7 the proper way in which to inform the Trial Chamber of

8 this. However, in view of the discussion we had in

9 this Trial Chamber twice and the decision of the Trial

10 Chamber, as well as the fact that the Prosecutor must

11 carry out a certain inquiry that we discussed on Friday,

12 as professional lawyers we have decided that out of

13 deeply ethical and professional reasons we can no longer

14 participate in these proceedings as defence counsel of

15 Mr. Zejnil Delalic until the problem, which will be heard

16 elsewhere, has been dealt with.

17 The possibility of a potential conflict of

18 interest between us and our client and in both in the

19 interest of our client and in the interests of our

20 professional and ethical considerations does not allow

21 us to continue participating in the presentation of

22 evidence in this Trial Chamber, because we deeply

23 respect the Trial Chamber and we would not like our

24 position in any way under any circumstances to call in

25 question the fairness of the proceedings in this trial

Page 2914

1 as well as the position of our client in these

2 proceedings.

3 That is why I once again, on behalf of

4 Mr. O'Sullivan and myself, apologise if our legal

5 representative expressed himself, or rather following

6 our instructions presented our position in a way that

7 was not the most suitable. Thank you.

8 JUDGE KARIBI WHYTE: Thank you very much.

9 MS. RESIDOVIC (in interpretation): I apologise. Also let

10 me just add one further phrase. Your Honours, when

11 this problem has been fully settled we are fully

12 prepared to continue to represent our client. Should

13 the decision of the court be in a different vein, then

14 it will be up to our client to choose another defence

15 counsel.

16 JUDGE KARIBI WHYTE: I am proud to listen to you and

17 I believe my colleagues, too, are very happy to hear

18 your own submission and the reasons why you have taken

19 that position. In addition to the undertaking which

20 even the Prosecutor has made, the Trial Chamber has the

21 highest regard for all counsel appearing before us, and

22 would never for one moment think that you have anything

23 to do with it, but since this is a matter which one can

24 point fingers at, I think we believe as professionals

25 you are right to indicate where your mind is going, and

Page 2915

1 there is nothing anyone can do about it than to ensure

2 that you keep to your professional ethics and make sure

3 that your loyalty to justice, which is the main thing

4 here, and this is what everyone is looking forward to in

5 the whole exercise, is maintained, and also that your

6 integrity above everything is sustained throughout. We

7 believe you have done the right thing and I think on

8 behalf of my colleagues we admire the position you have

9 taken.

10 As I said on Friday, when the President comes, and

11 I hear he is coming tomorrow, every effort will be made

12 to set the machinery in motion so that this whole thing

13 will be cleared up and the situation will never be as

14 cloudy as it now appears to be. In all the

15 circumstances I believe the prosecution will still tell

16 you that whatever it is it still regards your

17 cooperation with him as the best thing he has ever had.

18 JUDGE JAN: I do not see any conflict between your

19 interests and your client. This is nothing to do at

20 all with your interest and your client's interest. How

21 can they come into conflict? I just do not

22 understand. Somebody has leaked information to the

23 Press. No one from the tribunal, including defence

24 counsel has anything to do with it. The only thing is

25 blowing the incident out of proportion by saying you

Page 2916

1 cannot possibly represent your client because there is a

2 conflict. I just do not understand that. I do not

3 see the conflict at all.

4 MR. GREAVES: Can I assist your Honours? I know something

5 of the background of the decision that counsel have

6 made? Of course, welcoming things have been said by

7 counsel for the prosecution, which have been helpful to

8 indicate their present position, but let us suppose for

9 a moment that we now continue with this trial and a

10 parallel inquiry begins behind the scenes, and during

11 the course of that inquiry, and I will be careful,

12 because I know that we are in open session, someone is

13 interviewed and makes an allegation, which raises a

14 suspicion against counsel. That is the first

15 problem.

16 The second problem is that something may happen in

17 relation to the Defendant during the course of his being

18 interviewed which may raise the same sort of problem.

19 I know that if I was acting in their position, if I had

20 constantly between now and the conclusion of the inquiry

21 that must take place, to be worried about that, and the

22 situation had not yet been resolved completely, I would

23 not feel able to concentrate and to focus upon the

24 interests of my client if I was having to worry in any

25 way about my own position. The duty of counsel at the

Page 2917

1 Bar is this: to defend his client fearlessly and

2 without favour within the rules of his profession. If

3 he is in any way prohibited from so doing, then that is

4 not in the interests either of his client or of justice,

5 because if one is concerned and is in some way -- has

6 one's ability to follow your duty impinged upon, then

7 you cannot do that which is in the interests of your

8 client. That is the first point.

9 The second point is this. Let us say we come to

10 the end of this trial and Mr. Delalic found himself in

11 the situation where he was going to have to appeal

12 against a conviction. One of the grounds might be:

13 "For a period of two weeks", let us say, "while this

14 enquiry was going on, my counsel, their mind was not

15 properly on the job, because there was this background

16 of an enquiry". That might prove to be a very sound

17 and fundamental ground of an appeal, that for two

18 critical weeks his counsel were not able properly to

19 carry out their duty on his behalf.

20 That is why in the interests of justice, in my

21 submission, this trial should not continue until such

22 time as the position is entirely, and I stress entirely,

23 clear. Your Honour's words are most kind about my

24 learned colleagues that there is no suspicion upon them

25 as far as your Honours are concerned, and that is a most

Page 2918

1 welcome approbation, if I may say so, and all of us feel

2 heartened by them. There are ramifications, and the

3 word "potential" comes in here. One knows only too

4 well in an enquiry of this kind things go in an

5 unexpected direction. We cannot look into a crystal

6 ball and say with certainty: "This will happen, this

7 will happen and this will happen". Something may arise

8 during that enquiry which has a fundamental effect on

9 the way in which it goes and the way in which counsel

10 for Delalic are viewed either by the Tribunal or the

11 prosecution. Whilst they are worrying about that and

12 have that in the back of their minds, they cannot

13 properly conduct the defence of their client. If that

14 is the position, a serious injustice would arise to the

15 Defendant Delalic. They have plainly considered their

16 position, and it is plainly expressed that their

17 decision is that they cannot within the terms of their

18 ethics continue to represent their client pro tempore

19 with this problem in the background. The consequences

20 of that are these, as I understand what they have said:

21 they feel it incumbent on them to withdraw from these

22 proceedings until such time as they are cleared. That

23 means that the defendant Delalic is without counsel.

24 In my respectful submission he cannot and this trial

25 cannot continue if he is unrepresented. He is entitled

Page 2919

1 to counsel of his choice. For the time being for

2 ethical reasons his counsel cannot properly act and,

3 that being so, with respect your Honours are faced with

4 something of a fait accompli, that the reality is this

5 trial cannot continue until the inquiry is commenced and

6 finished.

7 This means this: that inquiry has to be got

8 underway expeditiously in everyone's interests, not

9 least that of counsel who act for Mr. Delalic. That is

10 going to require the prosecution to move swiftly, and

11 I suspect it is in their interests as well to move

12 swiftly in order to bring that inquiry to an end and a

13 conclusion to be reached. But my submission is this:

14 this trial cannot properly continue if the decision of

15 Ms. Residovic and Mr. O'Sullivan is, for perfectly proper

16 and sound, if I may say so, professional reasons, if

17 they cannot continue for the time being to represent

18 Mr. Delalic. The answer is this trial cannot continue.

19 This is a serious matter that has been raised. It is

20 not one that is peripheral and can be dealt with, as

21 seems happens, at the end of a trial. This is a

22 problem that goes to the very root, not just of these

23 proceedings but, I suspect, as far as the prosecution

24 are concerned, to the very root of the entire process

25 that this Tribunal has been set up to deal with.

Page 2920

1 In my submission, although superficially

2 attractive that we can continue and this inquiry can go

3 on, the reality is that it cannot, and what I am trying

4 to say to your Honours is that there is a little bit

5 more to it than simply: "Well, set up an inquiry and

6 everything will be all right." I am afraid it is not as

7 simple as that. The position I have laid out, because

8 of the professional considerations of counsel for

9 Mr. Delalic, means, I regret, and I regret it greatly,

10 but it is an inevitable consequence of what I say, this

11 trial cannot properly continue.

12 I do not know if there is anything I can assist by

13 way of explanation of what I have said to your Honours,

14 but I hope I have made the position as clear as I can.

15 JUDGE KARIBI WHYTE: Yes. Can we hear the Prosecutor on

16 this issue?

17 MR. OSTBERG: Thank you, your Honour. The prosecution has

18 heard the decision put forward by Madam Residovic on her

19 own and on Mr. O'Sullivan's behalf, and I would like to

20 quote your Honour saying: "There is nothing anybody can

21 do about it." I respect it and I regret it and I have

22 no other wish in this trial but to go swiftly and

23 expeditiously. We have a witness waiting, etc, etc,

24 but we have been put in a situation about which I can do

25 nothing. Just to answer Mr. Greaves, it is not the

Page 2921

1 prosecution who is going to make enquiries. It is the

2 President or anybody he would name. I will do all, if it

3 is anything in my power to do so, to make that work

4 swiftly, but I think -- I have the strongest respect for

5 Ms. Residovic and Mr. O'Sullivan's standpoint. Thank

6 you.

7 JUDGE KARIBI WHYTE: It has been very sad for the Trial

8 Chamber to accept this decision, now we know it is on

9 professional grounds, we cannot challenge the judgment

10 of professionals who think and consider duly that they

11 are protecting their integrity and also they are trying

12 to work in the interests of justice. It is in this

13 matter that we have had a lot of anxiety from the

14 accused persons, who want speedy trials, and from

15 accused persons who have quite varied types of

16 complaints about the proceedings and how speedily we are

17 carrying them out, and everyone thought that we could

18 have been spared this problem of having to delay any

19 further when, in fact, we could have carried on.

20 Now the question of justice is a very important

21 thing and, as judges, we are merely impartial arbiters

22 and we make sure we protect the interest of everybody

23 involved, accused person, counsel, Prosecutor, and we

24 ensure that at all costs nobody should suffer for the

25 misdeeds of any other person. So I think in this

Page 2922

1 circumstance if counsel is convinced, and I think here

2 they are convinced, that it would not be in their

3 interests to continue while a parallel investigation is

4 going on, although we differ, I think their judgment

5 ought to be respected. I think we hope that this

6 inquiry will be pursued very vigorously and speedily so

7 that we will waste very minimum time in staying away.

8 As I said, it is very sad, but I hope it is not

9 dragging the skirmish from somewhere into our Trial

10 Chamber. I think this is all I have to say about

11 this.

12 MR. OSTBERG: Your Honour, the only thing we could ask for

13 is for the Trial Chamber to set up as early as is convenient a time

14 for a status conference to see where we stand and how long

15 this will go on, if the Trial Chamber will find that a

16 reasonable thing to do.

17 JUDGE KARIBI WHYTE: That might be fairly difficult in the

18 circumstance. Let me hear you.

19 MS. McMURREY: Yes, your Honour. If we are moving forward

20 from that so it is not a total waste of time, and by no

21 means am I saying that this is a waste of time, but

22 I have spoken to Ms. Theresa McHenry on Friday. They

23 have witness M who is waiting here to testify, who has

24 alleged serious bodily injuries arising out of this

25 case, and many times the medical examination of the

Page 2923

1 witness takes place after he testifies. So we have not

2 gotten an answer on that issue yet, but we are asking

3 that this witness, since he is here in The Hague, if he

4 could be examined ahead of time before he testifies,

5 that will certainly finish all the testimony for that

6 witness if he finally gets to testify. If we can get

7 that arranged, it would certainly expedite the rest of

8 the trial also.

9 JUDGE KARIBI WHYTE: Actually I do not know what part of

10 the proceedings that will be. That portion is taken up

11 now, I do not know what portion of our proceedings it

12 will be.

13 MS. McMURREY: Sometimes it could be that once a witness has

14 testified and then the medical examination comes

15 afterwards, there may be a reason to have to recall that

16 witness at a later time. If we have the medical

17 examination before the witness testifies, then there

18 would be no need and everything would be presented at

19 the time the witness testifies. That is all we are

20 asking. Ms. McHenry said she was going to check on

21 that. I am sure we could probably have that done before

22 this witness testifies now. That is all I am asking.

23 I would like to try to get that resolved ahead of time

24 since we have time now. Thank you.

25 MS. McHENRY: Assuming your Honours want the Prosecution to

Page 2924

1 respond to this, Ms. McMurrey did raise this and I said

2 I would check with lead counsel and the witness. The

3 prosecution is willing to support a joint application to

4 the Trial Chamber requesting a medical examination. It

5 has been agreed by defence counsel and I assume by all

6 defence counsel that in any cases where a joint

7 application is made for a medical examination the actual

8 report can come into evidence to your Honours as joint

9 exhibits. I believe this has been -- we have had this

10 issue come up before with respect to our witnesses. So

11 as long as that is clear that the medical examination of

12 this witness and the other witnesses can be admitted

13 into evidence as a joint exhibit by all parties to

14 assist the truth finding process, we would support a

15 joint application to have this witness, witness M,

16 receive a medical examination at your Honour's

17 direction. Presumably you would ask that the Registrar

18 appoint, as I believe your Honours did with respect to

19 the first two witnesses, that your Honours asked the

20 Registrar to appoint an impartial medical expert, and

21 then it is just a matter of with respect to the Victim

22 Witness Unit how quickly that can be arranged. Thank

23 you.

24 MS. McMURREY: Your Honour, of course, we have received

25 three other medical reports on three previous witnesses

Page 2925

1 to this point, and we stipulate that we agree that they

2 will be admissible. If the same procedures are

3 followed for this witness, we would also do the same.

4 I assume that the same proceedings procedures will be

5 followed. Thank you.

6 MR. ACKERMAN: Your Honours, may I just very briefly address

7 the primary issue that has brought us to this point? I

8 am distressed by the delay that we seem to be facing,

9 and perhaps I am trying to speak to the President

10 through this Trial Chamber, but it seems to me that if

11 the enquiry can immediately and quickly focus upon the

12 issue of whether or not any counsel bear any

13 responsibility for any of the activities we discussed

14 last week that it is very likely that in a very, very,

15 very short period of time the President or whoever he

16 appoints to carry out those tasks could announce that

17 there is absolutely no evidence to support any such

18 allegations against counsel in this case. That to me

19 would remove the ethical issues and this trial could go

20 forward. So hopefully that enquiry could be in two

21 phases, the first phase enquiring whether any counsel

22 bear any responsibility. I think that can be dealt

23 with quickly, and then we can move forward. I dread

24 that we might be looking at an extended period of time

25 while a very broad-based inquiry goes on. I think it

Page 2926

1 can be handled in a much briefer and much simpler way

2 with regard to counsel.

3 JUDGE KARIBI WHYTE: Thank you very much, Mr. Ackerman.

4 I think we would not want to stay indefinitely.

5 The President will be here tomorrow. We will leave out

6 tomorrow and assemble here again at 10 o'clock on

7 Thursday, so that we might know how things go. I think

8 we will assemble here on Thursday at 10.00 am. So the

9 Trial Chamber will now rise.

10 (3.25 pm)

11 (Hearing adjourned until 10.00 am on Thursday morning)

12 --ooOoo--