1 Wednesday, 29 October 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE MOLOTO: Good morning to everyone in and around the
7 Madam Registrar, please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-04-81-T, the Prosecutor versus Momcilo Perisic.
10 JUDGE MOLOTO: I don't know if it's me, but I'm hearing B/C/S on
11 my headphones, and I am on channel 4. Are the lines crossed somehow?
12 Thank you so much.
13 Could we have appearances for today, starting with the
14 Prosecution, please.
15 MR. SAXON: Good morning, Your Honours. Dan Saxon for the
16 Prosecution, with my colleagues Salvatore Cannata, Barney Thomas, and
17 Carmela Javier.
18 JUDGE MOLOTO: Thank you very much.
19 And for the Defence?
20 MR. GUY-SMITH: Good morning, Your Honour. Novak Lukic, Danijela
21 Tasic, Chad Mair, Milos Androvic, Tina Drolec, and I'm Gregor Guy-Smith,
22 for the Defence.
23 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
24 Just before we call the next witness, one or two housekeeping
25 matters, please.
1 On the 3rd -- I beg your pardon, on the 4th of November, there is
2 a Plenary at 1.00 in the afternoon. The hope at this stage is that that
3 Plenary might end before quarter past 2.00, and we might be able to start
4 our case at a quarter past 2.00. If, however, it takes a little longer,
5 we might start a little late. It's just a warning. But just to say the
6 start time on that day.
7 Secondly, on the 5th of November, again, after approaching
8 various Trial Chambers, we have been approached also to contribute to the
9 Appeals Chamber request for a number of days to hear their cases, and we
10 tried to resist but finally we had to give the 5th of November. So we
11 will not sit at all on the 5th of November. Okay? Thank you very much.
12 Yes, Mr. Saxon.
13 MR. SAXON: Your Honour, Mr. Thomas will call the next witness.
14 JUDGE MOLOTO: Okay. Thank you. Yes, thanks. Sorry, I didn't
15 catch the name. I'm trying to look for it in the script.
16 MR. THOMAS: Barney Thomas, Your Honour.
17 JUDGE MOLOTO: Barney Thomas. Thank you, Mr. Thomas.
18 MR. THOMAS: Before I call Mr. Bell, he is the only witness that
19 the Prosecution has set for today. He has an estimated time of
20 evidence-in-chief of two hours, so it was intended that he take the
21 entire day. However, Your Honours, there is a matter relating to him, as
22 well as to other witnesses, that I'd like to raise in advance of calling
23 him because it may affect the evidence that he's able to give, and it may
24 affect, in fact, whether -- how far we're able to proceed with him today.
25 His intended evidence as --
1 [The witness entered court]
2 MR. THOMAS: I'm sorry, Your Honours, this is probably
3 appropriately dealt with in the absence of Mr. Bell.
4 Following Your Honours' rulings yesterday on the video clips that
5 we intended to lead through Mr. Bell, what remains to be covered by his
6 evidence includes effectively general comments that he is able to make
7 regarding the shelling and sniping of civilians and the general life of
8 civilians in Sarajevo
9 Firstly, he describes that situation and, secondly, he will give evidence
10 as to how that was being reported by the international media at the time.
11 And that remains essentially the sole focus of his evidence today.
12 The Prosecution's view, as has been -- as it has put on the
13 record previously, is that it does not consider such general comments of
14 shelling and sniping of civilians to be what has been termed "unscheduled
15 incidents" in the context of the 73 bis ruling such that would require a
16 motion for leave to call that evidence. However, the Defence has a
17 different view, and it has advanced in its responses to the Bell
19 caught by the 73 bis ruling which is therefore engaged and that the
20 Prosecution is required to file a motion if it wants to lead evidence of
21 a general nature regarding the shelling and sniping of civilians.
22 The question --
23 JUDGE MOLOTO: You are speaking to the filing of this morning?
24 MR. THOMAS: Yes, Your Honour. So that takes me to this
25 morning's filing.
1 The Prosecution wanted to set out by its submission this morning
2 its arguments in support of the proposition that the 73 bis ruling does
3 not apply to such general comments. The Prosecution sees the resolution
4 of that question as necessary, not only for the ability to lead Mr. Bell
5 through his evidence but also in relation to several, if not many,
6 witnesses who will be called before this Trial Chamber during the course
7 of the trial. It's a matter that is of importance, obviously, in that
8 respect. It goes directly towards not just the evidence that people are
9 able to give but the ability of the Prosecution to properly schedule
10 witnesses and have them here in sufficient time, because if a four-week
11 rule is going to operate in terms of even general comments about the
12 shelling and sniping of civilians in Sarajevo, then that obviously
13 causes -- that's something that the Prosecution needs to build in to its
14 ability to present witnesses before the Trial Chamber on a timely basis.
15 But our immediate concern this morning, sir, is that Mr. Bell
16 will give that evidence and the question, therefore, arises as to how we
17 deal with that, given that there remains this outstanding question. The
18 Prosecution felt it was important to properly articulate its position,
19 and therefore the submission has been filed, but I'm conscious of the
20 fact, of course, Your Honour, that the Trial Chamber has only just
21 received it and my learned friends have only just received it. And even
22 though they have previously articulated their position in response to the
23 proposition, perhaps you need to hear from my learned friends as to -- as
24 to whether or not they are in a position or not to proceed with this
1 JUDGE MOLOTO: Sure. I beg your pardon.
2 Before I turn to your learned friends, can I get clarity on your
3 position. When you filed the motion about which a decision was rendered
4 yesterday, what was your understanding of unscheduled incidents?
5 MR. THOMAS: In terms of general comments relating to the
6 shelling and sniping generally of civilians, Your Honour, our
7 proposition, our position, always was that we did not consider such
8 general comments to be caught by the decision, and we footnoted that
9 position in those two motions.
10 The position we take on the submission has altered a little, in
11 fact, from the position that we took at the time of filing of the motions
12 in respect of General Wilson. I should stress, Your Honour, that the
13 submission is not an attempt in any way to relitigate the Wilson motion.
14 That is done and the decision has been rendered.
15 The motions themselves had their genesis in the issues that arose
16 during the examination of Mr. van Lynden on the first day of testimony in
17 the trial where incidents that we hadn't anticipated would amount to
18 unscheduled incidents became the subject of discussion in this court, and
19 we were aware at that time that we had scheduled Bell, or were intending
20 to schedule Mr. Bell, and General Wilson to give evidence this week, and
21 we were concerned that we did not want to run into any arguments or any
22 objections at the last minute in relation to Mr. Bell and General Wilson,
23 should incidents, if I can describe them generally in that way, be
24 categorised as unscheduled incidents which would require leave and a
25 motion to be filed. So it was that which prompted the motions in respect
1 of Mr. Bell and General Wilson.
2 In relation to General Wilson, the specific incidents which were
3 pleaded in that motion related to shelling in the period of May to June
4 1992. As I've said, Your Honour, that was primarily motivated by a
5 concern that we not fly General Wilson from Australia all the way here to
6 be present in the witness box and to meet an objection that that
7 constituted an unscheduled incident or not.
8 The Prosecution, having filed its submission overnight, has
9 examined once again the process by which the Trial -- the Pre-Trial
10 Chamber game to its decision in the 73 bis ruling and how it came to draw
11 a distinction between scheduled incidents and unscheduled incidents, and
12 the Prosecution is of the view, which it has set out in its submission,
13 that, in fact, even those Wilson
14 that Pre-Trial Chamber as unscheduled incidents requiring leave. But
15 that, as I've said, Your Honour, is something that -- a position that
16 have been arrived at subsequent to the filing of that motion, and
17 that's -- I'm not intending to re-open that.
18 JUDGE MOLOTO: Sure.
19 MR. THOMAS: But I indicate that because there is specific
20 reference to that in the submission, because that is the very part of the
21 pre-trial brief that the Pre-Trial Chamber referred to in its decision.
22 JUDGE MOLOTO: I am not quite sure I have followed you quite
23 clearly. Do I understand you to be saying, in one sentence, that general
24 comments on shelling and sniping in Sarajevo, in the view of the
25 Prosecution, should not be caught by the term "scheduled incidents"?
1 MR. THOMAS: It should not be caught by the term "scheduled --"
2 "unscheduled incidents," which would require leave.
3 JUDGE MOLOTO: Right. Now, in the view of the Prosecution, what,
4 then, are those unscheduled incidents which would then require leave?
5 MR. THOMAS: When one goes back to the particularly footnoted
6 passages of the 73 bis decision which deal with references in the
7 pre-trial brief, which deal with the Prosecution's amended witness list,
8 which included the 65 ter witness summaries, the Prosecution's position
9 is that the term "unscheduled incident," as considered by the Pre-Trial
10 Chamber, amounts to those incidents which are usually expressly described
11 as such in the 65 ter witness summaries, and annexed to the submission --
13 JUDGE MOLOTO: Described as "scheduled incidents" in the 65 ter
15 MR. THOMAS: In the 65 ter summaries, Your Honour, one of which
16 is annexed to the submission by way of example. Some witnesses are being
17 called to give evidence about scheduled incidents. There is a heading
18 "Scheduled Incident A7," and then it sets out what that witness is
19 intending to say about that particular scheduled incident. In the same
20 summary, there will also be, under usually a separate heading, an
21 unscheduled incident, "Unscheduled Incident, 2nd May, 1994" where the
22 witness -- and then a passage dealing with the witness's intended
23 evidence regarding that particular unscheduled incident.
24 There are on some occasions isolated instances in the 65 ter
25 summaries where those unscheduled incidents do not appear under a
1 separate heading in the 65 ter summary, but at the end of the summary
2 where the particular relevance of the witness's evidence is set out,
3 there is reference to that particular unscheduled incident.
4 In other words, if I can put it concisely, Your Honour, the
5 Prosecution's position in relation to what the Pre-Trial Chamber meant
6 when it was talking about unscheduled incidents requiring leave is those
7 which are expressly identified as such in the -- in the 65 ter summaries.
8 JUDGE MOLOTO: Thank you.
9 Mr. Guy-Smith.
10 MR. GUY-SMITH: If I could, for the moment, I have not had the
11 opportunity to review the Prosecution's submission, but I would like to
12 have the opportunity to do that, obviously, and I don't think that
13 Mr. Thomas is taking any exception to that. He's really trying to work
14 out where we go from here.
15 JUDGE MOLOTO: Sure.
16 MR. GUY-SMITH: There is one quick thought that comes to mind
17 based upon what Mr. Thomas has said with regard to a definition of
18 "unscheduled incidents," and I refer the Chamber and Counsel to paragraph
19 11 of the decision, which has oftentimes been cited to you, concerning
20 the 73 bis matter, specifically paragraph -- the second sentence in
21 paragraph 11, which probably should be read in context of the first.
22 "After hearing the Prosecutor," this is the first sentence,
23 paragraph 11, "the Chamber may reduce the number of counts charged and
24 fix on the basis of the criteria set out in Rule 73 bis (D) of the rules
25 crime sites or incidents that are 'reasonably representative of the
1 crimes charged' and for which evidence will be presented," which they
2 have done in scheduled incidents.
3 The second sentence, I think, is of some importance in the
4 analysis, no matter when we really grapple with the entirety of the
6 "The corollary of fixing the number of crime sites or incidents
7 in respect of which evidence will be presented is that," and now I
8 emphasise, "the Prosecution shall not present evidence in respect of
9 other crime sites or incidents that are not included in the fixed
11 Now, I think that, when read in conjunction with the analysis
12 that we have gone through on a number of occasions in paragraph 16 and
13 17, answer the question in a relatively clear manner, and I don't think
14 there is any dispute or room for, as the Prosecution has suggested,
15 interpretation of what that means. However, that does not deal with,
16 certainly, some of the procedural as well as substantive issues that
17 still are to be addressed with regard to this whole area, and
18 specifically the analysis that is engaged in by the Chamber in paragraph
20 Having said that, I would like to stop for the moment and ask for
21 the opportunity to read the submission and see how best to respond in a
22 cogent and comprehensive manner to it. But I thought I should just
23 mention that in passing, because it may quickly take care of the issue
24 because it wasn't addressed by the Prosecution in their submission just
25 now, and it seems to be avoided in terms of what the Chamber has done
1 with regard to the specific matter in hand and that is the definition of
2 "incidents." But I need some -- I need some time in addition if that
3 doesn't settle the issue at first blush.
4 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
5 Let me just make one or two comments. I find myself, and I want
6 to believe that I'm speaking on behalf of my fellow Judges, if I say that
7 we are equally a little at sea about this matter because we are -- we
8 only saw the filing this morning. We haven't read it. Certainly, I
9 haven't read it. And I don't feel that I'm sufficiently informed to be
10 able to make a contribution towards a decision.
11 But just one question that I would like to ask you,
12 Mr. Guy-Smith, from this quotation that you have just given us, you said
13 that "the Prosecution shall not present evidence in respect of other
14 crime sites or incidents that are not included in the fixed number." Is
15 that a fixed number of incidents that constitute, according to that
16 decision, that constitute scheduled incidents, and can one sort of go
17 somewhere and find it?
18 MR. GUY-SMITH: That's how I have understood the decision, and in
19 response to your question, what I then did is I went to the indictment
20 and went to the schedules following -- following the indictment that had
21 a fixed number of identified incidents; for example, schedules A and B,
22 which are really what the subject matter is we are talking about.
23 Schedule A has nine incidents; schedule B has 12 incidents.
24 JUDGE MOLOTO: Well, that's the simplistic approach that I was
25 taking to this matter insofar as the definition of "scheduled" and
1 "unscheduled incidents" refers. I was looking at the schedules to the
3 MR. GUY-SMITH: You and I were doing the same thing, Your Honour.
4 That's what I understood to be the fixed number that they're talking
5 about. That's where I went. I went from paragraph 11 to the indictment,
6 I saw what was here. I then took a look at the analysis in paragraph 16
7 and 17 to see where there could be any deviation and how the deviation --
8 and if there could be deviation from those incidents, how that occurred.
9 And that led me to an understanding of what the -- what the Chamber's
10 analysis was there, which is that "thou," meaning the Prosecution, "shall
11 not lead evidence on --" what now is being called - and I think is being
12 used euphemistically, to be perfectly honest with you - is now being
13 called "general conditions," and I think what they really mean there is
14 precisely what the Chamber said they should not do, which is lead
15 evidence on terror in relation to the Sarajevo counts. I think it's
16 pretty clear what this evidence is about.
17 I then went to paragraph 17 and understood from paragraph 17 that
18 there were two predicates that had to be met in order for an unscheduled
19 incident to be considered by the Chamber to be allowed to be led. One
20 was the issue of notice; that's the procedural matter. And the second is
21 the substantive matter, and the substantive matter had to tie in to a
22 particular requirement that it proved an essential aspect of the case,
23 and then they gave an example, which is the same example -- and I don't
24 mean to be repetitive, because I seem to be just repeating that which the
25 decision says, and it says, "... if a scheduled incident is necessary to
1 link the accused to the crimes charged."
2 I think the decision is pretty straightforward. I was not having
3 the difficulty in interpretation that the Prosecution was which didn't
4 mean that our job is -- of the Defence was any easier. We still had a
5 formidable task in front of us to counter the evidence that the
6 Prosecution planned on bringing, but it seemed that the analysis that the
7 Chamber had gone through was pretty clear. There was sufficient evidence
8 in the crimes that were charged and the incidents related to those crimes
9 that allowed for the concern that the Prosecution had concerning notice,
10 as well as other aspects that they must prove. And in the event there
11 was something above and beyond, something special, something
12 extraordinary, then they would come to the Chamber and ask for leave,
13 after having made a good showing both in terms of a procedural reason why
14 they had failed to bring this up at any earlier time as well as a
15 substantive reason. That was the way that I was interpreting and have
16 been consistently interpreting this decision, as has my colleague.
17 And to a certain extent, I don't think that there's been a
18 dissimilar approach in analysis in some of the conversations that have
19 been had as between the parties. I think it's more a question of
20 preference of how to present the evidence in this case as opposed to that
21 which is essential for proof in this case.
22 I'll leave it at that because conversations as between the
23 parties oftentimes are subject to interpretation that may be different as
24 between us, and I don't want to push that particularly hard.
25 I hope that I've -- I looked at this as a pretty straightforward
1 ruling. I didn't see too much -- I didn't see too much ambiguity here.
2 And perhaps I'm not as nuanced as others, but I just didn't see it.
3 JUDGE MOLOTO: Can I just find out from you, Mr. Guy-Smith, while
4 you're on your feet, would you include annex -- I beg your pardon,
5 schedule C amongst the scheduled incidents, in your understanding?
6 MR. GUY-SMITH: Absolutely. I mean, anything that's scheduled --
7 anything that's here that's scheduled is -- I would include.
8 [Trial Chamber confers]
9 JUDGE MOLOTO: Mr. Thomas, I'm sure you're aware of the dilemma
10 in which we have all landed.
11 MR. THOMAS: Yes, sir.
12 JUDGE MOLOTO: You've told us that Mr. Bell comes from
14 MR. THOMAS: No, he's from the UK, sir. He's -- rescheduling
15 him, if necessary, doesn't present difficulties. It's General Wilson who
16 comes from Australia
17 difficulty today just involves Mr. Bell. He's from the UK.
18 JUDGE MOLOTO: But you realise that, having not read your filing
19 this morning, the Defence having not had an opportunity to respond, we
20 are -- we cannot be in a position to give a decision. In fact, I'm not
21 quite sure I've been able to digest your arguments this morning. I would
22 like to hear them again, and maybe after reading the submission, then I
23 might be able to follow what you're saying better.
24 MR. THOMAS: Yes, sir.
25 JUDGE MOLOTO: And my question is what, then, what we do with
1 Mr. Bell, who is standing outside ready to testify?
2 MR. THOMAS: This is why I wanted to raise this in advance, sir.
3 I don't see, in the absence of a ruling, given the positions taken by the
4 parties, that we can deal with Mr. Bell's evidence. My learned friends
5 still dispute that the general comments that he would make about shelling
6 and sniping of civilians constitutes or don't constitute an unscheduled
7 incident, and while they take that position, that's something that would
8 have to be resolved before he's able to give that evidence.
9 [Trial Chamber confers]
10 JUDGE MOLOTO: On the way forward, there are two -- it looks to
11 me like there are two options here, and I put them to the parties to make
12 a recommendation to the Bench. Either we adjourn for the day and make
13 sure that this matter is properly ventilated and a properly reasoned
14 decision is rendered or, in trying to accommodate Mr. Bell, we hear
15 Mr. Bell on whatever it is that the Prosecution wants to lead on the
16 understanding that once this matter has been properly ventilated at a
17 later stage and depending on the decision that is rendered, whatever
18 needs to be expunged from Mr. Bell's testimony as not being scheduled
19 incident shall be expunged. I'm not sure whether that second alternative
20 came out clearly.
21 Yes, Mr. Thomas -- you are on your feet.
22 MR. GUY-SMITH: I believe I understood the second alternative
23 quite well. If it's not too much of an imposition on the Court, if the
24 Prosecution and the Defence could talk for a moment, perhaps we could
25 address the issue, because, as I understand it, Mr. Bell is -- Mr. Bell
1 is waiting outside. I have no desire to inconvenience him whatsoever.
2 JUDGE MOLOTO: That's an alternative. That's a third
4 MR. GUY-SMITH: If we could have a moment.
5 JUDGE MOLOTO: Would you prefer that, Mr. Thomas?
6 MR. THOMAS: I'd certainly appreciate the opportunity to consider
7 the matter just briefly for a moment, sir.
8 JUDGE MOLOTO: That's quite okay.
9 MR. GUY-SMITH: Thank you.
10 JUDGE MOLOTO: The parties will notify us when they are ready to
12 MR. GUY-SMITH: Yes.
13 JUDGE MOLOTO: Okay. We'll take an adjournment.
14 --- Break taken at 9.36 a.m.
15 --- On resuming at 10.07 a.m.
16 JUDGE MOLOTO: Yes, Mr. Thomas.
17 MR. THOMAS: Sir, I can -- Your Honours, I can advise that my
18 learned friends and I have been discussing the matter. We agree that the
19 greatest importance in so much as we are able to influence that should be
20 placed upon resolving the issue and obtaining a decision. This is an
21 issue that affects not just Mr. Bell but also Mr. Wilson and probably all
22 of the international witnesses in some limited form or another.
23 My learned friends and I are both happy, as is Mr. Bell, if it
24 would assist the Court, for him to travel back on another occasion. We
25 are certainly, both I and my friends, of the view that Mr. Bell shouldn't
1 give his evidence until there is a ruling on what can be -- what should
2 be the compass of his evidence, and the same would apply to
3 General Wilson.
4 I'm conscious, of course, Your Honours, that both the Trial
5 Chamber and my learned friends haven't had and need the opportunity to
6 proper consider the Prosecution's submission. Mr. Bell, if he's not
7 going to testify today, can come back on another occasion. That is not a
8 problem. I'm awaiting confirmation almost at any minute that General
10 even Tuesday of next week, if my learned friends needed more time to be
11 able to address these issues, for example, tomorrow, instead of today.
12 In any event, the lesser of two evils would probably be, as far
13 as the Prosecution is concerned, that General Wilson give his testimony
14 after such a decision, even if that means he has to return sometime in
15 the future. But my learned friends and I are in agreement that this is
16 a -- this is a decision that will dictate how many witnesses are going to
17 be dealt with. It shouldn't affect in terms of timing anything too
18 significant. But because a lot of witnesses are going to be commenting
19 in some way on these issues, that my learned friends and I both feel that
20 we should spend the time resolving the issue, getting the decision,
21 before evidence of this type is led.
22 JUDGE MOLOTO: Thank you, Mr. Thomas.
23 Mr. Guy-Smith.
24 MR. GUY-SMITH: We agree.
25 JUDGE MOLOTO: You're agreed. And the sum total is we adjourn.
1 MR. GUY-SMITH: That would be our joint request at this time,
2 Your Honours.
3 JUDGE MOLOTO: Before we do so, how --
4 MR. GUY-SMITH: How soon can we get something on file or be in a
5 position to respond? If I could have two seconds.
6 JUDGE MOLOTO: I'll give you five.
7 MR. GUY-SMITH: Thank you.
8 [Defence counsel confer]
9 MR. THOMAS: I'm sorry, Your Honour, if I could just interrupt
10 for a moment. I've just received notification that General Wilson --
11 JUDGE MOLOTO: Has arrived.
12 MR. THOMAS: He's here. He would be amenable -- well, his
13 arrangements allow him to testify on Monday or "a few days later, if
14 necessary," or he's able to return sometime in the future as well.
15 JUDGE MOLOTO: Okay. Thank you very much, Mr. Thomas.
16 Yes, Mr. Guy-Smith. That, I hope, doesn't affect the timeline
17 for your filing?
18 MR. GUY-SMITH: No, it doesn't. I'd like to say maybe grab an
19 hour or two more, but other than that, no. If we could -- if we could
20 have -- today is Wednesday. If we could have the balance of the day and
21 perhaps get some in file first thing tomorrow morning, that would be
23 JUDGE MOLOTO: Okay.
24 MR. GUY-SMITH: I think we can work within that timeframe.
25 JUDGE MOLOTO: Thank you very much.
1 MR. GUY-SMITH: Sure. I think that should take care of the issue
2 about scheduling. I think it should give us enough time, I would think.
3 JUDGE MOLOTO: Yes. I'm trying to think whether -- if you're
4 going to file tomorrow morning, it doesn't seem to make sense to postpone
5 to tomorrow morning, because we'll only get your filing tomorrow morning,
6 and then we'll need to consider it --
7 MR. GUY-SMITH: Right.
8 JUDGE MOLOTO: -- and draft our decision. Most probably -- you
9 said today's Wednesday?
10 MR. GUY-SMITH: Right.
11 [Trial Chamber confers]
12 JUDGE MOLOTO: Sorry, Judge Picard just pointed out to me that
13 yes, we don't sit on Fridays. So if we can't sit tomorrow, then it can
14 only be Monday.
15 MR. GUY-SMITH: Very well.
16 JUDGE MOLOTO: Very well, then. The matter stands postponed to
17 Monday -- sorry, Judge. Let me just check the dates.
18 Monday, the 3rd of November, at quarter past 2.00 in the
19 afternoon. It will be in Courtroom II. Thank you very much. Court
21 --- Whereupon the hearing adjourned at 10.14 a.m.
22 to be reconvened on Monday, the 3rd day of
23 November, 2008, at 2.15 p.m.