Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15397

1 Friday, 14 September 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE AGIUS: Yes. Good morning, Madam Registrar. And good

6 morning, everybody. Could you call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: Merci, Madam. All the accused are here. The

10 weekend is approaching; I notice the absence of Mr. Ostojic, Mr. Bourgon

11 and Mr. Haynes. That's about it. I presume they are working in the light

12 of one of the next witnesses which we of course understand. The

13 Prosecution, I hope they have also got someone working on that witness but

14 I see Mr. McCloskey, Mr. Nicholls and Mr. Thayer. Help me with the

15 columns, please, because, honestly sometimes they hide sometimes

16 completely, for example, Mr. Petrusic, I can't see at all and Mr. Thayer,

17 I can't see at all.

18 All right. Shall we take up the various issues that were raised

19 yesterday with one addendum, namely that we would like the Prosecution to

20 respond orally today to the joint motion that was filed a couple of days

21 ago. We'll deal with that. We'll deal with the issue raised yesterday as

22 to admissibility or otherwise of documents put to witnesses that happen to

23 know absolutely nothing about them during -- if -- by the party presenting

24 that witness, particularly on cross-examination.

25 We would like to hear any further submissions you may have,

Page 15398

1 although you did cover this to an extent yesterday, Mr. McCloskey, on the

2 question of whether a party has a right to impeach its own witness. And

3 finally, the UN document, if I remember well, it's 528. I am speaking

4 from my memory. And then our intention is to take away with us the debate

5 as food for thought and we promise to come back to you later on with a

6 decision that would incorporate all these issues, all these issues.

7 Okay. Mr. McCloskey.

8 MR. McCLOSKEY: Yes, Mr. President. On the issue of impugning

9 one's own witnesses, I don't have anything further to say, though I can of

10 course provide the Court with many citations and the development of the

11 law on that issue.

12 I also would remind the Court that they have made a ruling in the

13 case of Mr. Simanic and to the degree that he was a Prosecution witness

14 which I think in the end we took responsibility for him, that issue has

15 been decided in that specific case, and so I think that is a good

16 precedent for the overall view-point. But I think I don't need to say

17 anything more on that unless you have some questions.

18 JUDGE AGIUS: I would have one remark rather than a question, that

19 we have dealt with this issue at least twice in this case already, one of

20 which is pretty recent. Is pretty recent, that is, it goes back to after

21 we came back from the summer recess, during which --

22 MR. McCLOSKEY: We in fact chose, think probably for the first

23 time to actually impeach our own witness with what he had said about that

24 particular document. But -- and the Court, I know it was a two-to-one

25 majority allowed that so --

Page 15399

1 JUDGE AGIUS: Exactly. I mean this is what I wanted to remind

2 you, at the time it didn't click -- the name Simanic didn't click because

3 I misunderstood you.

4 MR. McCLOSKEY: And that's of course one of the reasons we try to

5 keep from going to the impeaching if we can stick with refreshing or doing

6 it in a different way, though impeaching doesn't -- as I said, in the

7 modern respect impeaching doesn't mean necessarily attacking or hostile,

8 it means that the person is adverse, maybe an adverse party or take an

9 adverse interest. It doesn't necessarily mean that there is tremendous

10 amount of hostility.

11 In any event, so that issue, I think, we can leave rest. And the

12 issue related to --

13 JUDGE AGIUS: The joint Defence motion?

14 MR. McCLOSKEY: Well, I would say that issue has been dealt with.

15 The Prosecution's position on that is we object to it being reopened

16 again. It is written in terms of clarification. I think your ruling was

17 very clear and you made a ruling, you denied certification and you asked

18 Mr. Bourgon to sit down on the same issue. That's three bites at the

19 apple. And this motion for clarification is not a motion for

20 clarification. It's a motion to reopen. And I don't object to motion for

21 leave to reopen an issue. That's appropriate. But motion for

22 clarification, no, not in the context of three bites at the apple.

23 Having said that, of course, I can briefly respond to the

24 argument, though it's -- nothing is very new. I think they want to create

25 some kind of a requirement on us that before we use a document on

Page 15400

1 redirect, we would have had to been able to not to anticipate using it on

2 redirect, something to that degree that I can't even get my head around

3 very well. They are trying to take what is the -- something similar to

4 the standard on rebuttal, and use it in a redirect case and it's just not

5 appropriate.

6 We are not lying in ambush to do this. We get our heads together,

7 when these witnesses get taken down a track that doesn't have anything to

8 do with our direct, we get together, we determine what documents may

9 respond to that, and when I have time, like I did the other day, I listed

10 all those documents. This created a big storm in a tea-cup, as you

11 remember. Now we are on those documents and it's a little tiny tea-cup.

12 So we are not doing what they are suggesting we are doing but we will walk

13 through a door when they open it. We'll do that every time and we will

14 look to the collection of the documents.

15 But all of these documents, the first thing we do when we find

16 documents that are relevant is we get them to the Defence and so we are

17 not talking about documents that we are pulling out that they haven't

18 seen. That may happen, as you know, but most of these documents are

19 something we have provided to the Defence either long ago or relatively

20 recently, all those maps that we had that you saw us scrambling with,

21 they've had that material. This Drina Corps collection is some 300.000

22 documents. We have not had the resources to really look at that.

23 Material has been popping up in that collection and we are -- we've got

24 these constant series of 65 ter motions and we'll continue that, but this

25 isn't a question of surprise and ambush that it's being suggested it is,

Page 15401

1 but --

2 Anyway, that would be my view simply on the issue of their motion

3 and redirect, which, as I explained yesterday, in reality, is

4 cross-examination because they are taking witnesses in areas for their own

5 purposes that we have not largely dealt with, so it's more of

6 cross-examination than it is redirect, but it's what we have created

7 here. And when I say we have created here, there has never been a trial

8 like this in history before where we have this many accused charged with

9 this many serious crimes where we have this -- it's ten, 15 years after

10 the event, where people are finally coming forward and that we are able to

11 call people like Savcic and (redacted) and Vasic, in an institution where we

12 cannot have indicted everyone. We don't have the resources. So what

13 you're seeing is a rather unique situation, I think you realise that, and

14 I think the rules that you have adopted, that we have adopted and

15 practices fit and I don't think what the Defence are suggesting fit at all

16 in this context.

17 JUDGE AGIUS: Okay. Then would someone please check that at least

18 the first two of the names that Mr. McCloskey mentioned are not

19 protected. Savcic definitely isn't but --

20 MR. McCLOSKEY: Thank you. And on -- if -- the issue of documents

21 that witnesses don't know much about, I think the best way to do that is

22 just some of those, I've got two or three documents that fit that --

23 potentially fit that category that I need to offer into evidence and if I

24 can discuss those individually, that should incorporate that argument.

25 Because I think it does -- it really is a very particular -- it goes to

Page 15402

1 each particular case. There is a difference between showing a civilian

2 a -- some Muslim document -- military document that they would have never

3 had a chance to see or know about, and showing a Main Staff Colonel a Main

4 Staff document that he would have received or should have seen or been

5 aware of at the time. So I think this is a very individualistic thing and

6 so I can go through that with you now, I think.

7 JUDGE AGIUS: Okay. Yes, go ahead. Incidentally, I don't want

8 you to think that I suffer from amnesia but there are too many things to

9 think about before we start this sitting. We are sitting pursuant to Rule

10 15 again today, being a Friday, because Judge Stole couldn't be with us.

11 Thank you.

12 MR. McCLOSKEY: I'm not sure of Mr. Josse's position on these few

13 documents, but since they do bring up this issue, I'll be able to go

14 through them briefly. It may not matter.

15 JUDGE AGIUS: You will have all the opportunity you wish to air

16 your views on these issues, and the fact that yesterday you touched on

17 this topic at some length but if you wish to go first on this issue, then

18 do so by all means, Mr. Josse.

19 MR. JOSSE: No, Your Honour, just a clarification which I think

20 will help everyone, I hope. So far as the Trkulja documents are

21 concerned, those that are double asterisks were not on the 65 ter list.

22 If yesterday I alluded to the fact that the witness knew nothing about

23 those documents, I was clearly in error. That has been explained to me by

24 some of the other Defence counsel in this case. I am bound to say that

25 perhaps my confusion arose from the fact that those documents clearly are

Page 15403

1 not intended particularly, so far as my client was concerned but in

2 relation to another accused.

3 Therefore, I want to make it clear that I accept that the witness

4 did have some knowledge of at least two of those documents and therefore

5 what I said was inaccurate and the Court should know that.

6 The only possible ground, therefore, for not admitting those at

7 this stage is pending the resolution of the motion and, of course, the

8 fact they haven't yet been translated into English. And my final excuse

9 is the fact they hadn't been translated into English perhaps also

10 accounted for my confusion but others who defend have the advantage over

11 me in that regard and they put me right.

12 JUDGE AGIUS: Okay. Thank you. That simplifies your task to an

13 extent, Mr. McCloskey.

14 MR. McCLOSKEY: Yes, thank you, Mr. Josse. Thank you,

15 Mr. President.

16 The first document, 65 ter number 2512, this is the Main Staff

17 order discussing the meaning of the job of the officer of morale,

18 religious and affairs, and this particular document, while unknown to the

19 witness, is a -- clearly we know from General Gvero's comments, that it is

20 authentic and it is significant, and I think we, the Prosecution, would

21 like to rely on General Gvero's comments to that effect. They are helpful

22 and they help the Court identify the importance of this document.

23 Now, having said that, this is a document from February of 1995.

24 We had a colonel from the Main Staff, clearly a professional officer, who

25 had some knowledge of this position. He'd worked with morale, legal and

Page 15404

1 religious officers, his career at the VRS, and he had comments on some of

2 the language in the document, propaganda mostly, and this is something

3 that I think we have been doing throughout the trial, where a document is

4 shown to someone and they can comment on the substance of it, clearly he

5 did, he was able to discuss it, it's an important document. I see no

6 reason in the world that this document should not be in court. We are not

7 playing adversarial technicalities with these sorts of things. 65 ter

8 number long known, important document, discussed by the witness. The fact

9 that he hadn't seen it or doesn't remember it coming across his desk is

10 really hardly relevant in that context.

11 The next document, the 12 July Main Staff combat report to the

12 Presidency, this witness, as you recall, was the one that during this time

13 period was taking the combat reports from the corps, assembling them and

14 helping draft the document that we call the combat report from the Main

15 Staff to the Presidency, and these -- and, while he didn't draft this

16 particular one on the 12th, his initials you may recall were not on it, he

17 couldn't recall where he was, but this is right around the key time frame

18 of this case, right around when he was there, as far as he knew. So,

19 again, it's an important document and it has direct bearing on this

20 witness, on the events, and I believe he was able to confirm all those

21 things. So I don't think there is a real argument on that document

22 either. But I'll respond to it if there is.

23 The next document is a -- well, I don't think I need to get into

24 that. That's the Karadzic-Gvero, I think that came in through Savcic.

25 There was a bigger discussion on being in trouble with President Karadzic

Page 15405

1 and General Gvero's response. I believe that has already come in

2 through--

3 JUDGE AGIUS: I think one of them has -- with Savcic, I think the

4 two documents were put to him.


6 JUDGE AGIUS: One of the documents was put to Trkulja.

7 MR. McCLOSKEY: Yes. I put this Karadzic's complaint to General

8 Gvero to Trkulja. He didn't know anything about it. He said he hadn't

9 heard of it.


11 MR. McCLOSKEY: And I mean, I can argue -- this is the kind of

12 thing that he should have known of, Colonel Savcic knew all about this

13 friction and this -- but I feel a little silly arguing about a document

14 that's already in evidence. But I can. It's the kind of thing, as a Main

15 Staff officer, he should have been aware of. He was the chess -- at least

16 the chess partner of General Gvero and when you get chewed out by the

17 president to that degree and be demanded to get a response, it's something

18 that he should know about. So this is an example of an important document

19 that is done at the time of the events, that this witness should know

20 something about, and like some other issues, he just knew absolutely

21 nothing about. I think for his credibility it's the kind of document that

22 is helpful to the Court in analysing his credibility. I think that issue

23 is mooted by the fact that Savcic did know about it, he talked about it

24 and he talked about General Gvero's or that he was shown General Gvero's

25 response so now you have both documents so you can gauge them both.

Page 15406

1 All right. The next one is PO 2886. This is a Drina Corps daily

2 combat report from Colonel Krstic dated 4 June 1995. And if you recall,

3 part of Colonel -- the theme of Colonel Trkulja's cross-examination was

4 that the Main Staff knew nothing about any Srebrenica operation until

5 reports started coming in in July, is my best recollection of what we were

6 able to make of what he was saying on that. Again, as a colonel and one

7 of the few senior officers in the bunker, this colonel should know about

8 other operations and it's the position of the Prosecution that based on

9 directive 7, Colonel Krstic at the time planned an attack on Srebrenica on

10 May 15th and those documents were in evidence -- one of -- the May 15th

11 documents is already in evidence. That was shown to him also. So that's

12 why it's not on the list. And that was the first attack plan that you'll

13 also see as the evidence develops that on May 16th they decided that they

14 didn't have the resources at that time to do it so it got put off.

15 Now, getting to this document in particular, the 4 June document,

16 it's the position of the Prosecution and there has been evidence on this

17 already, that the initial attack, the lead-up attack to -- on the

18 Srebrenica enclave of the famous attack of July 6, the preliminary attack

19 was on the area of Zeleni Jadar on 4 June 1995 and it was necessary to

20 take out that UNOP Echo in the Zeleni Jadar area and in order to be able

21 to gather the troops and assemble and form the axis of attack from the

22 south. And so what this -- so what this report is on 4 June is a

23 reference to UN soldiers being taken prisoner or released.

24 I don't have an English version of it but it's a reference, we

25 believe a direct reference of the -- of the results of that attack on the

Page 15407

1 OP Echo and UN soldiers is something -- UN soldier prisoners is something

2 rather significant and rather important in this war that a colonel at the

3 Main Staff should have known about, and this was a daily combat report of

4 4 June, the kind of report that comes in to Colonel Trkulja when he is

5 putting together his reports to the Presidency. So this is the kind of

6 thing he should have been aware of, of high importance and goes directly

7 to rebut the Prosecution -- the Defence's contention that he was not aware

8 of any attacks on the enclave.

9 So this is a document that would have been right near him. It's

10 the kind of documents he was talking about, the kind of documents that he

11 would have based his reports upon.

12 All right. The next document, P02892, is the Drina Corps daily

13 combat report dated 16 May, and this is, I believe, the report of the --

14 related to the attack on the enclave, the one that was subsequently not

15 followed through on. There is a brief reference in that report to what we

16 believe is that attack. And so that applies to my previous argument.

17 The next document after that, P02896 is a Main Staff report to the

18 Presidency under the name of General Miletic. It's the same day as that

19 Drina Corps report, so it's the report that would have incorporated the

20 Drina Corps report. And there is a little section in that report

21 regarding the enclaves, in terminology that appears to us to suggest that

22 they -- that there is activity around the enclave by the VRS. It appears

23 to be connected to us to the May 16th daily combat report by General

24 Krstic.

25 The language is somewhat cryptic. Those are my questions about

Page 15408

1 when you get cryptic language, Colonel, can we suggest that the parties

2 know what they are talking about? I think I had a hard time getting that

3 question in a non-leading form but that's where I was going with that,

4 that this cryptic language to -- from General Krstic on the 16th is

5 mirrored by the cryptic language in the Main Staff report on the 16th and

6 if you look at the Main Staff report on the 16th you'll see Colonel

7 Trkulja's initials, so he actually drafted that. So we'll take the

8 cryptic language of Trkulja's report, it's directly related to the Drina

9 Corps report, and he's questioned about those things. I mean there really

10 can be no doubt under the system that you have set forward these important

11 documents and this witness, these documents have to come into evidence

12 without delay.

13 And I think that's it. The other documents that I listed, either

14 I did not use or they had -- they have been admitted at previously and we

15 tried to keep that redirect as concise as we could, and of course looking

16 at you and understanding your patience and your feeling on how we were

17 doing. Of course, we always do that. So I think we did it fairly and I

18 think these documents are important and that they should all be in

19 evidence for your consideration. Thank you.

20 JUDGE AGIUS: Do you also wish to deal with the UN document,

21 report, or shall we hear you first on it, Mr. Josse?

22 MR. JOSSE: I'd rather the Prosecution asserted why they say it

23 should be admitted.

24 JUDGE AGIUS: All right. Okay. Thank you, Mr. Josse. I also

25 want to make sure that we are not giving the impression that this debate

Page 15409

1 is open only between Mr. McCloskey and Mr. Josse. You will all have your

2 opportunity to stand up and make your observations.

3 Yes, Madam Fauveau?

4 MS. FAUVEAU: [Interpretation] Mr. President, I will perhaps make

5 it easier for Mr. McCloskey. What I wish to say is that the Defence of

6 General Miletic, who is the Defence most interested in this report, has no

7 objection to having it admitted into evidence. These reports are

8 definitely relevant. There is no doubt about it. And at some point,

9 they would have been tendered. So we have no objections concerning these

10 four documents.

11 What worries me more is the way in which it is wrongly

12 portrayed what is presented in those reports, and the Prosecution says

13 that the UN officers at some point were arrested or captured and then

14 released, whereas that's not true. They were released. On the other

15 hand, we never said that the Main Staff was not aware of what was going

16 on around Srebrenica. It is our position, and we have said so in the

17 past, that the Main Staff, until the fall of Srebrenica, was not aware of

18 the Krivaja operation. That is the operation in question. I wanted to

19 make you aware of this.

20 In addition to this, even though we do not object to these four

21 documents being admitted, because that would have been

22 counter-productive, we are still concerned that during redirect

23 examination, the Prosecution put in -- put to the witness documents that

24 should have been put during examination-in-chief. All of the documents

25 put forward by the Prosecution support their case, and before calling the

Page 15410

1 witness, they knew that this was a colonel from the Main Staff and that

2 this was the person who could confirm certain things so the Prosecution

3 should have done this during examination-in-chief and not wait for the

4 cross-examination to be completed before putting it to the witness in

5 redirect.

6 JUDGE AGIUS: Just one clarification. Reading through the

7 transcript, you first use the word "this report," and then you refer to

8 four documents as well as reports. Could you be -- I think I know what

9 you're referring to. I don't have a doubt in my mind but if you could be

10 more specific at least for the record, I think that would be helpful,

11 Madam.

12 MS. FAUVEAU: [Interpretation] I think that this pertains to three

13 reports of the Drina Corps and one report of the Main Staff. I

14 apologise. Actually, no, I apologise. Two reports of the Main Staff and

15 two reports of the Drina Corps. Numbers, P2748, P2886, P2892, and P2896.

16 JUDGE AGIUS: Thank you. That's precisely what I thought you

17 were referring to. And I asked the question just to eliminate the

18 possibility of your first -- the first part of your intervention to be

19 interpreted that you were agreeing with the introduction in the records of

20 the UN report because the debate followed almost immediately from that.

21 Yes, I think we can safely go to that report, 528, if I remember

22 the number correct, Mr. McCloskey, and what is being asked from you is to

23 explain, I suppose, the question of relevance has already been conceded by

24 Mr. Josse yesterday during his intervention. So it's a question of

25 why should it be admitted into evidence instead of more direct evidence.

Page 15411

1 MR. McCLOSKEY: Mr. President, Mr. Thayer is ready to speak to you

2 on that topic. Though if I could, I would like to respond very briefly to

3 Ms. Fauveau's argument related to the UN soldiers being taken hostage and

4 her argument that it is incumbent upon us to bring up all these documents

5 in direct. That may be related to the motion that they've tried as well.

6 I'll be very brief.

7 The position of the Prosecution is that the people at the OP,

8 especially OP Echo, were threatened with death by the VRS, they were

9 targeted with heavy weapons. There is a document explaining exactly how

10 to do this, and I would offer that to you now in response to her argument

11 that they were not taken prisoner. It's a document authored by General

12 Zivanovic explaining exactly how Legenda, Mr. Jolovic from the Zvornik

13 Brigade is to point his opens at the OPs, how he's to threaten them with

14 death and then after they lay down their weapons they are to be their best

15 friends. It's clearly laid out on the process of doing that and they have

16 repeatedly brought up throughout this trial that the UN was not targeted

17 and I was -- it was going to come up in trial at some point, but if she's

18 going to factually argue from the bar table, I will -- I would like you to

19 see that evidence from the bar table so that we can clear the record on

20 that. So that's the first point.

21 The second point, as I said yesterday, we choose these adverse

22 witnesses based because they have provided in previous statements certain

23 things that we believe are credible, that are important for the case.

24 Much of their other material is just flat out not credible. I don't think

25 it's a credible statement that when Savcic says that General Mladic was a

Page 15412

1 man of brotherhood, for example, when he was deciding to kill 7.000

2 Muslims, and so we are of course not standing by that kind of statement.

3 We do choose what we think supports the Prosecution's case, and we -- the

4 Defence brings in what is their case and we will respond but there is

5 nothing incumbent upon us to open up anything and everything that might

6 have something to do with our case with these very adverse witnesses and I

7 don't think there is any law, nor any reason, that we should start. If

8 that was the case we would probably be on witness 25 today but -- also, it

9 would take way too long and wouldn't be helpful.

10 But having said that, Mr. Thayer is ready to speak to you about

11 the UN report.

12 JUDGE AGIUS: Yes, but Madam Fauveau has got something else to

13 say. Go ahead.

14 MS. FAUVEAU: [Interpretation] Your Honours, I wish to reply

15 briefly to one of the assertions. I don't think that this has to do with

16 what happened at one of the observation posts in Srebrenica. We are

17 speaking about what was in that report and what was known to the people

18 from the Main Staff about what had happened, and the report speaks about

19 how these people were released. I'm not referring to what happened on the

20 ground. I'm just simply speaking about the relationship between General

21 Miletic and the Main Staff and the events and the knowledge that they had

22 about it and what was stated in the report. Perhaps it is a problem of

23 linguistic communication because the Prosecution and I -- the Prosecutor

24 and I don't speak the same language but it seems to me that the Prosecutor

25 is constantly misinterpreting my words.

Page 15413

1 JUDGE AGIUS: Thank you. I think we can close that, leave it at

2 that. And Mr. Thayer, if you could come forward, please, so that at least

3 I can see you. Yes. You are going to deal with the UN document.

4 MR. THAYER: Yes, good morning, Mr. President, and good morning,

5 Your Honours, good morning, everyone.

6 JUDGE AGIUS: Good morning.

7 MR. THAYER: You may recall that the report first surfaced really

8 prominently or directly in the cross-examination of Joseph Edwards where I

9 think he had been asked some questions about his -- any feelings that he

10 had of personal guilt or -- he responded that he certainly had feelings of

11 personal responsibility. Then that engendered a larger discussion about

12 institutional responsibility for certain events during this period of time

13 and I think he invited counsel and the Court to look at this document

14 which, among other things, ends with an assessment of a number of players

15 or participants in all these events, including the UN itself, and it was

16 after he specifically referred to that report, and in the context of

17 offering some of these other documents that were used in his examination,

18 both on direct, redirect and cross, that I decided to just go ahead and

19 offer it, and I believe, Mr. President, you made a comment about even

20 potentially taking judicial notice of the document.

21 Now, I had in fact used this document in the redirect of Colonel

22 Trivic as early as the 23rd of May on an issue that had arisen during his

23 cross-examination, I believe. This is Exhibit 528. It does have a 65 ter

24 number, and it was specifically cited in both the Krstic and the

25 Blagojevic Trial Chamber judgements. In Krstic it was Exhibit 30. And in

Page 15414

1 Blagojevic, it was Exhibit P825. Between those two judgements, it was

2 cited no fewer than 60 times. The Krstic judgement, and I'll just refer

3 to footnote 11, stated that the Secretary-General's report with respect to

4 the Secretary-General's report the Trial Chamber has relied upon the

5 Secretary General's report as an accurate recounting of the events leading

6 up to the takeover of Srebrenica at least on matters where no contrary

7 evidence has been presented at trial.

8 Given that it has obviously been relied upon by two prior Trial

9 Chambers, given that Richard Butler's military narrative expert report

10 also refers and relies to this report, given that Richard Butler's Main

11 Staff expert report also cites this UN report, given that it was furnished

12 to General Smith in preparation of his expert report, we believe that it

13 will be referred to, if not during direct examination, I imagine it will

14 be made use of during cross-examination, to the extent that it was relied

15 upon by these expert witnesses in the preparation of their reports, and

16 the Defence will certainly have an opportunity to cross-examine these

17 witnesses on this report on any deficiencies or inaccuracies or on

18 methodological issues, whatever topic the Defence may wish to raise with

19 respect to the report, they will have an opportunity to do that.

20 We simply offer at this point because it's already been used, it's

21 already been referred to, it's obvious that it will continue to be

22 referred to, it's an exhibit that's been relied upon by our experts, like

23 the NIOD report which our friends have made liberal use of. There is

24 something in it for everyone. It is what it is and we are not trying to

25 make it the urtext of the events but it is a reliable, as the Krstic

Page 15415

1 judgement said, accurate recounting of these events. Were this case

2 before a jury, certainly we would have different feelings potentially

3 about the use of the document but I think we are all comfortable that the

4 Trial Chamber isn't going to jump willy-nilly into the report and begin

5 relying on it inappropriately. We offer it to the Trial Chamber to use as

6 you see fit. We would rather you have it than deprive you of the

7 information that's in it, especially given its historical use and its

8 current use in these trials and in this trial.

9 JUDGE AGIUS: Thank you. Mr. Josse?

10 MR. JOSSE: Your Honour, if I may I'll deal exclusively now with

11 528. At some juncture I'd like to respond to some of the earlier

12 submissions of Mr. McCloskey.

13 JUDGE AGIUS: As I said, you will have -- you and the rest will

14 have every opportunity to debate this.

15 MR. JOSSE: Thank you. 528 is a comprehensive long report over

16 100 pages dealing with the events that this trial is examining. It

17 details events before the fall of Srebrenica. Much is about the events

18 surrounding the fall of Srebrenica and then Zepa. And then there is some

19 fairly extensive examination of the consequences of those two events and

20 how in part it led to the conclusion of the war.

21 Could I make it clear, Your Honours, that I personally have no

22 objection at all to the Court reading this document in order to decide on

23 this admissibility question. I know that some of my learned friends who

24 defend in this case prefer to argue these points of admissibility in the

25 abstract, in the sense that they would rather the Trial Chamber didn't

Page 15416

1 examine the document that was being argued about. I'm not talking

2 specifically about this one but we have had this in the past.

3 I don't share that view. I take a strict view that you are both

4 the Tribunal of fact and the Tribunal of law but I do submit you need to

5 separate those two functions very, very clearly and that the question

6 you're now being asked in effect by the Defence in relation to this

7 document is so far as law and this document, i.e., is it admissible in

8 this trial? There is a practical difficulty. It's -- as I say it's a

9 long document and in order to consider the matter clearly each of you

10 would need to read it. You may have done so already and as I say I've got

11 no problem with that whatsoever.

12 But for the purpose of this submission I'm going to assume you

13 haven't read it and you'll proceed on the basis that you're not going to

14 read it prior to making this decision. Clearly, if you were to rule

15 against the Defence and rule that the document should be admitted, you

16 will have to read it and consider it for yourself but I emphasise again I

17 have no objection to your reading it prior to deciding the question of

18 admissibility.

19 The primary objection is that this document is a narrative account

20 of these events. It is in no way a contemporaneous account of the

21 matter. I do compare and contrast it with the various documents that we

22 have been debating over the last 24 hours. I accept that they are

23 documents that are prima facie admissible. The objections that I was

24 taking so far as they were concerned were technical ones, arguably highly

25 technical ones as to the nature of their presentation.

Page 15417

1 For example, there is no question that the Karadzic-Gvero

2 correspondence, if I can call it that, is relevant to this case. I said

3 yesterday it's important to the case of Gvero. It's equally important to

4 the Defence as it is the Prosecution. It's going to be admitted at some

5 juncture in the proceedings. It's just how and when. That's the only

6 question. This is completely different. This report was written in 1999

7 and basically it is a narrative account of these tragic events.

8 It can be contrasted as well, for example, to the Harland

9 documents, which you're going to get in due course and also the various UN

10 site rep documents. They are contemporaneous accounts. That doesn't mean

11 to say that they are necessarily right or accurate but clearly they are

12 relevant, probative and admissible by any standard because of the fact

13 they were written at the time and they are useful addition to the evidence

14 in this case, but they do contrast with this report which frankly is no

15 different, I submit, to some of the many books that have been written on

16 the subject, the NIOD report, Mr. Thayer mentions it, that's right, but no

17 one is suggesting that the whole NIOD report should be admitted in this

18 case and frankly it is no different, I would suggest, to the Krstic and

19 Blagojevic judgements. If it was being suggested that they should be

20 admitted into evidence in this case as some sort of definitive record of

21 events, then the Prosecution would have a better point so far as 528 is

22 concerned. Really, all this is is an examination of the events through

23 slightly different sources and I'll come to that in a moment. I'll come

24 to that matter in a moment.

25 Could I say in passing that it might have been possible for this

Page 15418

1 Trial Chamber to have dealt with the issue of the crime base, if I can

2 loosely call it that, in this case in a different way, by, for example,

3 relying very heavily on the two previous judgements of this Tribunal in

4 relation to the Srebrenica matter and relying on this document and perhaps

5 relying on the NIOD report and saying we are not going to hear very much

6 evidence about what actually happened on the ground. It's been dealt with

7 before and we are simply going to use the materials from the past, but you

8 in our submission, rightly have chosen not to do that and to make the

9 Prosecution prove their case. And the vast majority of the evidence in

10 this case has been viva voce evidence in that regard. And in that sense,

11 the admission of this report would be a retrograde step, I would suggest,

12 because it would be more akin to the route that you have chosen not to

13 take.

14 The next fundamental objection is the report is not heavily

15 footnoted. There are only 31 specific references in the footnotes to the

16 report dealing, for example, with books written by some of the

17 participants at the time. This isn't a criticism of the report at all, as

18 in many ways the report makes clear that it relied on interviews that were

19 conducted necessarily in an anonymous fashion. It is fair to say that in

20 annex 2 of the report, there is a list of over 60 names of people who were

21 interviewed in 1999 for the report. Some of them are witnesses in this

22 case, like General Milovanovic. Others are -- many are not. And it's not

23 clear who said what. Simply a list of names. It doesn't then refer to

24 the very narrative.

25 The report also - and this in our submission is problematical - in

Page 15419

1 many ways relies on the activities of this Tribunal and there is just one

2 page that I would like to turn to, so could 528 be brought up in e-court,

3 please and could we go to page 72 of the report?

4 Thank you. Yes. It's from the top. I'll read this slowly, if I

5 may. I'm not going to read it all. So this is the chapter, chapter 8,

6 "Aftermath of the Fall of Srebrenica" at the 12 to 20 of July 1995. "The

7 following section attempts to describe in a coherent narrative how

8 thousands of men and boys were summarily executed and buried in mass

9 graves within a matter of days while the international community attempted

10 to negotiate access to them. It details how evidence of atrocities taking

11 place gradually came to light but too late to prevent the tragedy which

12 was unfolding. In 1995, the details of the tragedy were told in piecemeal

13 fashion, as survivors of the mass executions began to provide accounts of

14 the horrors they had witnessed. Satellite photos later gave credence to

15 their accounts."

16 And then it deals with the first United Nations report in the next

17 paragraph. I'm not going to read that. It then deals, it says, "The

18 Tribunal first gained access to the crime scenes in January 1996," and it

19 mentions the rule 60 proceedings against Mladic and Karadzic. It then

20 says, "Further investigations have been conducted by the Tribunal." It

21 deals with the forensic evidence obtained by the Tribunal. And then it

22 says, "On 30th October 1998 the Tribunal indicted Radislav Krstic,

23 commander of the BSA's Drina Corps for his alleged involvement in those

24 massacres. The text of the indictment provides a succinct summary of the

25 information obtained to date on where and when the mass executions took

Page 15420

1 place." And then finally, "The aforementioned sources of information

2 coupled with certain additional confidential information that was obtained

3 during the preparation of this report form the basis of the account which

4 follows. Sources are purposely not cited in those instances where such

5 disclosure could potentially compromise the Tribunal's ongoing work."

6 In our submission, that is exactly the sort of thing this Trial

7 Chamber doesn't want to receive into evidence. It runs completely

8 contrary to the principles of justice and completely contrary to how this

9 trial is proceeding and should continue to proceed.

10 Of course, for the purposes of the report, I repeat, no criticism

11 at all. It's a perfectly sensible and natural way for the then

12 Secretary-General to deal with a difficult matter, but it's not a piece of

13 evidence that should be admitted into these proceedings.

14 Mr. Thayer has dealt, I say with respect, very vaguely with what

15 purpose he suggests this report should be adduced for. He has mentioned

16 that it was relied upon in previous judgements but in my submission, the

17 Prosecution need to define much more clearly why it should be admitted

18 into evidence. Because, Your Honour, and this really, if I can use the

19 colloquialism, is the bottom line. The bottom line is if you're going to

20 admit it into evidence you need to tell the parties why it's being

21 admitted into evidence and for what potential and ultimate purpose it

22 might be used. That's really the nub of my submission. And in our

23 submission, bearing in mind its nature and bearing in mind the task that

24 the report set out to do, namely a narrative of events, and in particular

25 examine the UN's role, it deals with the UN's role and it's critical in

Page 15421

1 many respects of the UN's role in the tragic events.

2 In our submission it's simply not something that you would be able

3 to say we could use in any given way in this particular trial and of

4 course it's for the Prosecution to say in what specific way it can be

5 used. The fact that it's been used by Mr. Butler and General Smith is

6 neither here nor there. And indeed, I would make no criticism, if in the

7 course of their evidence they made some reference to it. That doesn't

8 mean to say it should be admitted into evidence in this trial.

9 So what I invite the Trial Chamber to do is keep the eye on the

10 ball and in that respect say that this report simply won't assist you in

11 coming to the difficult decisions that you've got to make at the end of

12 this trial. Those are our submissions on this report.

13 JUDGE AGIUS: Thank you. Does anyone else wish to contribute to

14 this part of the debate? Yes, Mr. Josse?

15 MR. JOSSE: Sorry, Your Honour. The judicial notice point, can I

16 deal with that very briefly? It's Rule 94. On the face of Rule 94, the

17 report itself doesn't fall within that rule, in our submission. What

18 could have been done is parts of the report could perhaps have been

19 distilled in order to invite the Trial Chamber to take judicial notice of

20 some of its findings, exactly in the way the Trial Chamber has done so far

21 as the previous Srebrenica judgements are concerned.

22 Two observations on that. First of all, it's probably too late to

23 do that anyway. It should have been done at the beginning of the trial.

24 But secondly, if some sensible attempt was made to do that at this stage,

25 notwithstanding what I've just said, then on behalf of General Gvero we

Page 15422

1 would make an effort to cooperate with the Prosecution in that regard,

2 notwithstanding the fact that almost halfway through this trial.

3 JUDGE AGIUS: Thank you. Does the fact that this is a UN Tribunal

4 and we are discussing a UN official document make any difference to you?

5 MR. JOSSE: None at all. Indeed, I would suggest the Judges of

6 this Trial Chamber, indeed any Trial Chamber of this Tribunal, need to be

7 very, very careful not to give extra credence or precedence to United

8 Nations document. You must show your independence.

9 JUDGE AGIUS: Yes. Anyone else wishes to contribute to this

10 debate? Madam Fauveau?

11 MS. FAUVEAU: [Interpretation] Mr. President, with regard to

12 judicial notice, I have a position which is somewhat different from my

13 colleague. As far as I'm concerned, I see no problem in the fact that the

14 Trial Chamber should take judicial notice of the fact that the report has

15 been compiled and that it is authentic. However, the correctness of the

16 thesis put forward in this report is what I bring into question. For

17 example, the Court for Rwanda did precisely that. It took official

18 judicial notice of certain reports but not the thesis put forward in those

19 reports as being absolutely true and correct. They tested them.

20 JUDGE AGIUS: Thank you, Madam Fauveau. Mr. Thayer, could you, in

21 replying to the submissions made by the two Defence counsel, also address

22 the question as to when asking for the admission of this report in toto,

23 whether you also intend that all the facts therein established will be

24 presented as evidence of the occurrence of those facts, if they form part

25 of the substance of this case? Or are you limiting yourselves, the

Page 15423

1 purpose of the use of this document? In other words, for example, there

2 may be facts resulting or established in this report that you haven't

3 proved otherwise.

4 Are you pretending that therefore, with the introduction of that

5 report, which incorporates those conclusions, the fact that you haven't

6 otherwise proved would be proposed as having been proved by you on the

7 basis of that report? I don't know if I've made myself clear but I think

8 this is important.

9 MR. THAYER: Yes, Mr. President.

10 Generally, I think what distinguishes this institution from any

11 other experiment is the trust that we invest in the Trial Chamber to make

12 the kind of judgements that we are asking the Chamber to make. As I said,

13 we do not expect this Trial Chamber to leap into the report and begin to

14 pull facts out willy-nilly, for which we have not presented any evidence

15 or which are not part of this case. We trust the Court to be able to pay

16 attention to those issues, those facts, which are at issue, upon which

17 evidence has been presented.

18 Now, there may be certain facts which have not been contested,

19 there may be some facts which, for example, fall into an area similar to

20 some of the adjudicated facts, which are not a live issue as it were or as

21 a hotly contested issue. In those limited circumstances, and I can't

22 think of any off the top of my head, but I presume that there might be

23 some of those circumstances, we would trust the Court to rely on those

24 facts, if they are in the report, if they are not something that is hotly

25 contested. I don't foresee that being the case.

Page 15424

1 We are not inviting the Court, as I said, to adopt this report in

2 lieu of the specific evidence which we have been putting on and which we

3 will continue to put on. That is where we intend to prove our case.

4 However, the report is specifically cited in various paragraphs of the

5 expert reports which are being tendered in this case, particular passages,

6 particular paragraphs, particular chapters are referred to by particular

7 experts in this case. For that reason alone, it's important to have those

8 sections available to the Court. Whether there is again some other issue,

9 as I said, which is not in contention, we trust the Court to treat that

10 appropriately. I don't think it makes sense to chop up the report and

11 introduce it piecemeal simply to the very particular segments that were

12 specifically referred to in an expert report, for example.

13 As the Krstic Trial Chamber found, it is an accurate recounting of

14 the events. We think it is a useful tool for the Trial Chamber. But we

15 are not inviting a wholesale usurpation of the Court's fact-finding

16 mission via this report. We would never ask you to do that and that's I

17 think what I made clear in the very beginning.

18 I think the comments of my friend Ms. Fauveau really go to the

19 weight that the Trial Chamber gives to this document, not to its

20 admissibility. Whether anybody agrees with the findings or not is

21 something for the engine of cross-examination to work out. But we trust

22 the Trial Chamber that we can give you this entire report and that you

23 will make appropriate use of it.

24 I don't know, Mr. President, if I've answered your specific

25 question, but I would not want to say categorically that you cannot rely

Page 15425

1 in any way on the report if we have not adduced specific evidence going to

2 a fact or a finding that's in here. I think during the course of the

3 trial, certainly in our trial brief, we will make it clear what our

4 evidence is and what we believe we have proved and what we believe the

5 sources of that proof are, but if the Trial Chamber happens to see

6 something that's corroborative of evidence or that's corroborative of an

7 adjudicated fact that the Court has already determined, then I don't think

8 there is a problem with that.

9 JUDGE AGIUS: Let me be more specific. What I'm going to say now

10 is without prejudice to any pending matter, issue, in relation to Richard

11 Butler or General Smith. So two of the reasons why you state that the

12 introduction of this report is necessary is precisely because these two

13 individuals have relied, cited from and referred to parts of this

14 document. So that is one reason.

15 The other reason, as I understand it, is that this was an exhibit

16 in Krstic, it was an exhibit in Blagojevic, which is not necessarily a

17 good reason why it should also be an exhibit in this case too, because

18 it's not a case of what's good for the goose is good for the gander. The

19 last argument that you bring forward is that Krstic stated, the Krstic

20 judgement stated, that this particular report, it was relying on this

21 particular report as an accurate recounting of the events leading to the

22 takeover of Srebrenica, at least on matters where no contrary evidence has

23 been presented at trial.

24 Do you also -- are you also submitting that this should also be

25 taken, the position taken by this Trial Chamber? And if so, would that

Page 15426

1 limit the use of that -- the Secretary-General's report only to those

2 matters where no contrary evidence has been presented at trial, or are you

3 intending to extend it beyond that?

4 MR. THAYER: Again, Your Honour, I think we are really offering

5 this as a tool that the Trial Chamber can use at its discretion. The -- I

6 think if you look at the Krstic and the Blagojevic judgements, the

7 citations to the report, in fact, aren't limited solely to the events

8 leading up to the takeover of Srebrenica, and I'd have to really take a

9 close look at some of those citations to see if each of them was purely

10 uncontested at trial. Again, I don't want to limit the basis on which we

11 are -- and the purpose for which we are offering it. I think if, again,

12 there are issues that are hotly contested, then we would not be asking the

13 Trial Chamber to rely solely on anything that's in the report. I think --

14 I can't state that, I think, any more clearly than I have already.

15 If there is something that is at issue and we have evidence and

16 there is what you believe to be corroborative facts or findings in this

17 report, then it is just an additional fact that the Court, we believe, may

18 have available to rely upon if it wishes to. If it doesn't, we

19 understand. And we don't expect the Court, again, to rely on this as the

20 urtext of this case, but I wouldn't want to categorically remove the

21 ability of the Court to make a finding, if it so choose, that went to an

22 issue that was not in -- not hotly contested or for whatever reason wasn't

23 raised in the trial. I can't imagine what that would be, frankly, but I

24 would rather err on giving the Court the discretion, the ability to do

25 that, than to remove that.

Page 15427

1 JUDGE AGIUS: Let me put a question to you. I may have read this

2 report way back in 1999 or 2000 when I first was proposed as a candidate

3 for this Tribunal, but I honestly don't remember anything from that. Let

4 me, for argument's sake for a moment assume that this report comes to the

5 conclusion that 7.000, maybe 7.000 plus, men and boys were killed those

6 few days in July of 1995. Now, the amount of persons killed is something

7 which is at issue here, it's being contested by all the Defence teams, you

8 have brought evidence, factual and expert evidence, purporting to prove

9 that indeed 7.000 plus men and boys were killed during those days in

10 conformity with what is included in what is being charged in the present

11 indictment.

12 Now if there is anything in this report which deals precisely with

13 this issue, are you proposing that that should be taken into consideration

14 by this Tribunal in addition to the evidence that you have brought forward

15 or which you may still bring forward in relation to this issue, how many

16 men and boys were killed in Srebrenica in July 1995, if at all?

17 MR. THAYER: Your Honour, on an issue like that, which obviously

18 is in contention in this case, that is not something that we would be

19 offering this report as a basis of reliance. Our evidence is going to

20 come through the live witnesses, through the documents, through the 92 ter

21 and 92 bis statements. On an intense issue, whether it's the number of

22 people killed or any other issue, we wouldn't want again to limit your

23 ability to review the report and dismiss or accept or not come to any

24 conclusions about the validity of information, for example, in the report,

25 if it exists, about how those 7.000 -- that 7.000 figure came into

Page 15428

1 existence. We wouldn't want to limit your ability to be able to do that,

2 but we would not be asking you to give this any more weight than we think

3 it deserves which -- and we are not trying to make this report anything

4 more or less than what it is, which is a report that was conducted and

5 finalised in 1999 based on the sources that are contained in the report.

6 We would want the Trial Chamber and we trust that this Trial

7 Chamber will base its decision, whatever it is, on an issue, for example,

8 like the one that, Mr. President, you raised, on the evidence that comes

9 from the stand or through the other mechanisms, not based solely on a

10 report. Again, that said, if you saw something in the report that is

11 corroborative of that evidence, then we wouldn't want you to not have

12 that. But our strongest evidence, the evidence upon which we are relying

13 and upon which we are asking this Court to make its decision rests first

14 and foremost with the evidence that comes from the witness stand and

15 through these other sources.

16 JUDGE AGIUS: Thank you, Mr. Thayer. I'm raising this issue, in

17 particular not necessarily in relation to the amount of men and boys

18 killed, but in a more generic way because I think one -- it is imperative

19 that we respect throughout the right of the accused to know which evidence

20 is being adduced and which they may need to contest. They need to know

21 about what is being adduced in the first place as evidence so if they feel

22 that they need to bring evidence against, they would know precisely where

23 they are. I think leaving it in a vacuum could present more

24 difficulties. Anyway, we've heard what you had to say, Mr. Thayer. Thank

25 you. Unless you wish to add anything, I give the --

Page 15429

1 MR. JOSSE: I mean this with respect, Your Honour has gotten the

2 exact point that I wanted to make. Mr. Thayer says, I quote at line 25,

3 page 29, "I think we are really offering this as a tool that the Trial

4 Chamber can use at its discretion." A few lines further down, he

5 size, "Again I don't want to limit the basis on which we are and the

6 purpose for which we are offering it." The Defence simply want to know on

7 what basis it's being admitted and what it's seeking to prove so that we

8 can address it in due course if we need to.

9 JUDGE AGIUS: Thank you. Judge Kwon?

10 JUDGE KWON: Mr. Josse, taking up your comment and in particular I

11 note your comment in page 24, line 16, that you said your bottom line is

12 that if we are going to admit it into evidence, we need to tell the

13 parties why it is being admitted into evidence, and for what potential and

14 ultimate purpose it might be used.

15 In light of this submission of Mr. Thayer's and given your

16 comment, my question is as follows: Let's set aside the issue of whether

17 we can use it as a corroborative evidence to Prosecution's evidence. If

18 the Chamber is to use that report only to prove the background materials,

19 for example, the history leading up to the fall of Srebrenica, not in

20 order to prove the -- any acts and conduct of the accused, any critical

21 issues of the indictment, any issues in contention, then would you agree--

22 would you not be opposed to the admission?

23 MR. JOSSE: I probably wouldn't, so long as those passages were

24 selected, indicated by the Prosecution, we have a chance to consider them,

25 to see whether there were any parts in them that were in dispute and in

Page 15430

1 effect deal with the matter almost on a pleadings type basis, then I don't

2 see how I could object. If it's uncontested background material which is

3 going to save time, then as I say, I couldn't possibly object but it would

4 need to be done that way and defined and refined in that way.

5 JUDGE KWON: Can you not leave it -- the task to the Chamber to

6 select the passage?

7 MR. JOSSE: No.

8 JUDGE KWON: You said that in our Tribunal, the Judges are to give

9 reasons.

10 MR. JOSSE: Yes.

11 JUDGE KWON: So those passages will be appearing at the judgement.

12 MR. JOSSE: We need to know whether we have to address the

13 passages that might be relied upon. We have to know in advance which

14 parts it is being said might form part of the judgement against our

15 clients so that we know whether, as I've already said, we need to call

16 evidence, address it in argument, or deal with it in any other way.

17 JUDGE AGIUS: Let me perhaps expand a little bit on what Judge

18 Kwon has rightly put to you and asked. I think, let's, for a moment

19 assume that this document, this UN Secretary-General report will be

20 admitted in evidence. Let's work on that assumption. So you are going to

21 have in the record direct evidence consisting in the viva voce evidence

22 that we would have heard here plus documents that have been tendered,

23 which you have all had the opportunity of hearing and perusing, and you

24 had the opportunity of cross-examination almost always, so it's up to you

25 whether you cross-examined a witness on a particular issue or not or

Page 15431

1 whether you cross-examined a witness on a particular document or part

2 thereof or not.

3 Now we are talking of another document, which, again, for

4 argument's sake I'm assuming has been introduced in toto. The Prosecution

5 has not identified any parts in particular on which they are not relying

6 or that they do not tender as evidence because the way they have

7 approached it is only specific to a minor extent, but from a generic point

8 of view they wish not to limit themselves to any particular point. What's

9 the position?

10 I think there are two alternatives. One alternative is that if it

11 is admitted in toto, then it is incumbent on you to go through it and

12 assume that the Trial Chamber may wish to feel free to make use of any

13 part of that document and even incorporate these -- or some of these parts

14 in its judgement when we get to that. But that leaves open one

15 indesideratum, one undesirable aspect.

16 There may be points in that report that have never been debated

17 here, that no evidence has been brought on them, that we, however,

18 ultimately come to the conclusion that they are important and that they

19 have relevance and probative value for the purpose of the judgement that

20 we will be writing. You will find yourself at the end of the day

21 surprised that what you did not cross-examine or adduce evidence about,

22 something that was contained in an official UN document, has formed one of

23 the reasons for the decisions that the Trial Chamber will ultimately come

24 to.

25 So if you admit it in whole without any reservations, that is a

Page 15432

1 consequence that you will have to bear. In other words, keep your eyes

2 open, go through it, and anything that you think ought to be subjected to

3 further evidence or cross-examination of witnesses, then it becomes your

4 problem and as you put it, whether you do that or whether you don't that,

5 it's always at your own peril.

6 The alternative is for you maybe to sit down and articulate parts

7 of this report that will still form part of it and may still be necessary

8 to read for the intelligent understanding of the whole report and the

9 references that have been made to it in the Butler and the General Smith

10 report, but which will not, as such, be or constitute evidence of the

11 facts that they -- those parts refer to. This would require the

12 cooperation of both sides.

13 The other alternative is for us to determine which parts are going

14 to be -- but that I think is an exercise that is very unlikely that we'll

15 ever embark upon because technically speaking, a report, a document,

16 unless the party tendering that document specifically says, "This part

17 thereof or these parts thereof are not being intended as evidence," that

18 document would be introduced as evidence, as evidence, although not

19 necessarily as evidence of the facts referred to it.

20 So I'm thinking aloud more than anything else, and at the back of

21 my mind, what is more important is that no one is surprised at the end of

22 the day when we come down with our judgement with references to parts of

23 the report that you were never alerted to. This is basically -- or you

24 never had the opportunity of contesting. This is basically my concern.

25 MR. JOSSE: My observation on that, Your Honour, is, and I

Page 15433

1 suggested this in my initial submissions in a slightly different guise so

2 far as adjudicated facts are concerned. It would be incumbent upon the

3 Prosecution in the first instance to indicate to us, and that is the

4 Defence, which parts of the document they are inviting the Trial Chamber

5 to rely upon. Hitherto, Mr. Thayer has said he's not prepared to do

6 that. And I'm not putting that in a -- against him. That's what he

7 said. Your Honour's idea of brokering that sort of compromise, for want

8 of a better word, is one that I on behalf of General Gvero certainly would

9 be happy to sit down and discuss with Mr. Thayer, but I would suggest it

10 would be incumbent upon the Prosecution in the first instance to say these

11 are the passages we would invite the Trial Chamber to take cognizance of

12 in due course.

13 JUDGE AGIUS: What I was thinking of, if you could, for example,

14 sit down and if you could sit down and say, for example, insofar as it

15 relates to killings in Orahovac or et cetera, we are not tendering the UN

16 document as evidence of those facts. I mean this is what I'm suggesting

17 you could possibly sit down and agree upon.

18 [Trial Chamber confers]


20 MR. THAYER: Mr. President, I see it's the break. If I could just

21 respond in a minute or I can wait until we get back. I don't know if it

22 matters in terms of the deliberations or anything else.

23 JUDGE AGIUS: No. We are not taking any deliberations today. We

24 told you that. I mean, we will hear what you have to say today and these

25 are not matters that can be disposed of in minutes. And we also need to

Page 15434

1 discuss, because several of the things I may have said are my own personal

2 position. I mean, they need not necessarily reflect the position of my

3 colleagues, one of whom is absent today, in any case.

4 MR. THAYER: Then I'll wait until our return.

5 JUDGE AGIUS: We will have a 25-minute break.

6 --- Recess taken at 10.34 a.m.

7 --- On resuming at 11.00 a.m.

8 JUDGE AGIUS: Yes, Mr. Thayer.

9 MR. THAYER: Mr. President, just to close quickly on our

10 submission, the -- one thought that occurred to me during our colloquy

11 here is in some respects this exhibit is no different than any other

12 document that is being tendered and is potentially to be relied upon by

13 the Trial Chamber in its decision, albeit it's a little longer than most

14 of the documents that have typically been tendered here. The point is

15 that with respect to a given combat report, there may be one paragraph

16 that is at issue, that has been contested or for which it's really being

17 tender and then there is 75 per cent of the document which has never been

18 discussed by either party. We do not engage in trying to exorcise or

19 extract that other 75 per cent and remove that from the Court's ability to

20 review the rest of that document.

21 We want the Court to be able to read these documents in their

22 totality. On the other hand, and we don't want to remove the Court's

23 ability if it so chose to rely upon a part of a document, for example,

24 that may have not been raised or may have escaped both parties' attention

25 for whatever reason. However, on the central issues that are involved in

Page 15435

1 this case, we would expect that to be very rare, and similarly in this

2 case, where we have specific portions being referred to, for example, by

3 Mr. Butler, at the very least, we wouldn't want to deprive the Court of

4 its ability to review other portions of the report, some I which may be

5 linked in ways that sitting down and trying to chop up the report might

6 eliminate from the Court's review.

7 Again, we trust the Court to be able appropriately to rely on the

8 document. There may be something that is not in contention, that wasn't

9 raised, that the Court feels important enough to discuss in its ultimate

10 judgement. We leave that in the hands of the Court.

11 A little reluctant to take up, Mr. President, your suggestion to

12 sit down with our friends on this document, for the following reasons: I

13 mean, I think we've had success in the past on limited projects or

14 endeavours of this nature but I think -- and the situation with the

15 statement of Eileen Gilleece is instructive on this point, where we have

16 numerous parties and I think we will eventually have all Defence counsel

17 weighing in on this issue. In the Eileen Gilleece instance we only had I

18 think three Defence counsel with any dog in that fight, to use a

19 colloquialism, and we still haven't been able to resolve that issue after

20 months and months and repeated entreaties by the Chamber to try to work

21 something out.

22 And in this case, to sit down and Mr. Josse and I have worked

23 successfully together but he is not the only party here and my concern is

24 is that will eventually result in too much time invested, whereas we trust

25 the Chamber to be able to deal appropriately with the subject matter of

Page 15436

1 the report. It is one of the most liberating things, I think, about this

2 institution is that we are freed from some of these dangers, if for

3 example, we had to chop up the report of removing something that might be

4 relevant that we can't even realise or that we missed in that process of

5 chopping up the report. And I think the approach that we've suggested,

6 leaving it in the hands of the Court with everybody understanding what the

7 live issues are will be fine and ultimately that will also be the most

8 efficient means of tendering this document.

9 JUDGE AGIUS: Thank you, Mr. Thayer, but you do agree with me,

10 don't you, that all -- not all the documents that have been tendered and

11 will be tendered in due course in this trial are of only one and the same

12 category. There have been to my knowledge several documents tendered

13 which were either tendered for a specific purpose or were tendered only

14 insofar as certain parts thereof, and this not necessarily as a result of

15 an agreement between the parties. So there are at least two categories of

16 documents that have been tendered.

17 MR. THAYER: That's a point well taken, Mr. President, and whether

18 it's a witness statement, for example, where a certain portion has been

19 used or any other example that we can think of, I think that's absolutely

20 correct. On the other hand, one of the things that does distinguish this

21 exhibit is that it is a researched and it is found to be a reliable

22 document and accurate document. My friends have not identified they have

23 a problem with even after reviewing it. We haven't heard any objections

24 to anything in the exhibit that they would not wish the Court to read.

25 I'll just leave it there. I think we can trust the Chamber.

Page 15437

1 JUDGE AGIUS: One final question, which perhaps Mr. McCloskey is

2 in a better position to answer. In Blagojevic and in Krstic, was there

3 any objection to the introduction of this document, of this UN

4 Secretary-General report?

5 MR. McCLOSKEY: Mr. President, I have forgotten quite a bit over

6 the years, but that -- I don't recall there being any objection. We were

7 in two largely civil law benches and I wish I could recall the judicial

8 comments regarding this. It's not even an issue. Most of the world

9 wouldn't find this an issue. It's an issue in an adversarial system and I

10 do not believe it was objected to in Krstic, we had Mr. Petrusic, a civil

11 law lawyer, and you can see Ms. -- from Ms. Fauveau, her take is a bit

12 different than Mr. Josse's take on it. In Krstic, I don't -- perhaps

13 Mr. Petrusic is -- his memory is better than mine. I don't recall him

14 objecting. Mr. Karnavas in Blagojevic, he objected to a lot. I don't

15 recall, but I don't remember it being much of an issue. I can tell you

16 that on appeal, I don't think anyone suggested that the citations that

17 were made by the Trial Chambers created any kind of a problem whatsoever.

18 That's why we point out the fact that we don't hear of any facts in the

19 reports that are a problem. Still haven't.

20 JUDGE AGIUS: Thank you. Mr. Josse.

21 MR. JOSSE: I'm not asking for a right to reply. That very last

22 point which Mr. McCloskey just made and the very last four lines of

23 Mr. Thayer's submission, I don't accept at all. That has not been the

24 purpose of my submission. Completely different, if I'm being asked to go

25 through the report and explain which bits I say are not accurate, I don't

Page 15438

1 agree with and so on and so forth. I'd invite to you simply ignore those

2 particular submissions because they are not part of what this argument is

3 about.

4 If the Trial Chamber wants to expand this into what it is the

5 Defence don't like in the report, then we can do that. I don't think I

6 could do that right now. It will take a great deal of time, Your Honour.

7 I can give one example offhand. For example, the report describes my

8 client as deputy commander of the BSA. I quote. That's a bit that we

9 hotly dispute on behalf of General Gvero. But that's one small example

10 which relates specifically to my client. I suspect we would be here a

11 great deal of time if we were going to start arguing about which parts of

12 the report are in dispute. That's a different question altogether.

13 JUDGE AGIUS: Thank you, Mr. Josse. I think we can safely close,

14 bring the discussion on this issue to an end. Is there anything else you

15 would like to discuss?

16 Yes, I noticed Ms. Nikolic and then you Madam Fauveau. Ms.

17 Nikolic, go ahead.

18 MS. NIKOLIC: [Interpretation] Good morning, Your Honours, and

19 thank you. Very briefly, I fully support the position of Mrs. Fauveau and

20 Mr. Josse. I would like to add just one sentence. There are many parts

21 of this report that the Defence of Mr. Nikolic would object to as well. I

22 fully support the suggestion of the Chamber that the Prosecution and the

23 Defence should sit down and agree on the parts that would be of assistance

24 to the Chamber but would not in any way be contrary to the rights of the

25 accused.

Page 15439

1 In addition to this, there are facts that are not portrayed in the

2 same way as the evidence here before this Chamber, and further on, when it

3 comes to persons who were interviewed and persons who provided evidence,

4 such as, for example, interview with Mr. Ruez, out of the facts included

5 in the report and related to the evidence before this Chamber, we don't

6 know what is contained in the report but was not adduced here before the

7 Chamber. This is just one of the examples or rather the first example

8 that occurred to me as something that illustrates and supports the

9 position of the Defence of Mr. Nikolic.

10 JUDGE AGIUS: Thank you. Madam Fauveau?

11 MS. FAUVEAU: [Interpretation] Your Honours, I would like to

12 continue along the same lines as what was Mrs. Nikolic saying. I'm

13 worried about the sources of this document. You will see that on page

14 111, you see the names of the people who were interviewed, and in addition

15 to some of them whose names are not disclosed, there are also those whose

16 names are disclosed and some of them did testify before this Chamber, such

17 as, for example, Mr. Ruez. What I would be interested in is this: Not

18 only to which extent his statement in this report differs from his

19 evidence here, but I would also like to know to which extent is this

20 report based on the statement of the investigator of the OTP.

21 Another thing that is interesting for General Miletic is General

22 Milovanovic, with whom an interview was done as well for the purposes of

23 the report. However, General Milovanovic in this report is the only

24 Serbian soldier who was interviewed for the report. We heard his evidence

25 here and we know that it is the case of the Prosecution that he was not

Page 15440

1 involved in the Srebrenica events. This is why I'm truly interested in

2 learning about the content of the interview with General Milovanovic.

3 Now, let me go back to the last item. You spoke of the UN report.

4 And this is the UN Tribunal. And I think that it should be possible for

5 the Prosecutor to obtain these interviews, at least interviews of the

6 persons who have already testified or will testify here and who were

7 interviewed for this report.

8 JUDGE AGIUS: Thank you, Madam Fauveau. Do you wish to comment on

9 this last part of Madam Fauveau's statement?

10 MR. THAYER: Mr. President, I understand that there may have been

11 efforts in the Blagojevic case to obtain copies of any interview record,

12 if such records exist. My understanding is that we weren't able to find

13 such records but we will renew those requests, if I understand that's a

14 formal request from Madam Fauveau, for those documents. Frankly, again, I

15 don't know whether there are actual reports of interviews for these

16 people. Obviously they are referenced in the report but I don't know what

17 form they exist in and we'll look into that and see if they actually still

18 exist.

19 JUDGE AGIUS: Thank you for that, Mr. Thayer. Mr. Meek?

20 MR. MEEK: Mr. President, Your Honours, good morning. I agree

21 with my colleagues, Mr. Josse, Ms. Fauveau, Ms. Nikolic, but I have

22 another issue that bothers me on this report. The Prosecution says that

23 if it comes in in whole and there are issues which are not hotly

24 contested, then the Trial Chamber should be able to rely on those issues

25 in the report.

Page 15441

1 To me, that is a shifting of the burden of proof to the accused in

2 some way. It's more logical for the Prosecution, since they have the

3 burden of proof, if they want this report in, they should specify to us

4 and tell us and the Trial Chamber which portions of the report they are

5 relying on or they would wish you to rely on so that at least we know what

6 the case is against us. Otherwise I do believe that it affects the

7 fundamental rights of the accused to a fair trial and it shifts the burden

8 of proof to us.

9 JUDGE AGIUS: Thank you, Mr. Meek. Do you wish to comment on

10 that, Mr. Thayer?

11 MR. THAYER: No, Mr. President, I think that's been taken up by

12 his friends.

13 JUDGE AGIUS: Okay. So I think now I can safely repeat that we

14 can bring this discussion to an end. We hope to be in a position to come

15 back to you with our decision which will deal with this issue and with all

16 the other issues debated this morning, including the joint Defence motion

17 that was filed two days ago, and following that, I think we will be able

18 also to decide on the admission or otherwise of the Trkulja and Savcic

19 documents that are still pending.

20 Yes, Mr. Josse?

21 MR. JOSSE: Your Honour, I thought I was going to be allowed what

22 I think will be a short right of reply to what Mr. McCloskey said in

23 relation to the cross-examination of his own witnesses issue.

24 JUDGE AGIUS: By all means, Mr. Josse.

25 MR. JOSSE: And to a limited extent so far as the motion is

Page 15442

1 concerned as well. Could I make this submission? That so far as Simanic

2 is concerned, he falls into a totally different category. I certainly on

3 behalf of General Gvero did not at any stage seek to say that those

4 documents couldn't -- shouldn't be put to him. Indeed, at the time, I

5 contemplated getting up and in effect supporting the Prosecution. I was

6 loathe of course to really in effect oppose what one of my Defence

7 colleagues was doing. Because I accept that he was really called at the

8 behest of the Trial Chamber.

9 The Trial Chamber made it quite clear that if the Prosecution

10 weren't going to call him, they would. The Defence were invited at that

11 point whether they had any representations and in effect all Defence teams

12 invited the Trial Chamber to invite the Prosecution to bring Mr. Simanic

13 here. So he really does fall into a completely different category. And

14 in my submission, it would be most unfortunate if he was used as some

15 example of how we should proceed with some of these Prosecution witnesses.

16 In addition to that, let me make it clear that the issue of the

17 documents where I took a very technical stance, I've admitted that

18 throughout, is rather different to the fundamental question as to whether

19 the Prosecution are entitled to cross-examine their own witnesses. And

20 Mr. McCloskey has been very frank in admitting that that's exactly what

21 they are now doing.

22 So far as the legal issue on hostile witnesses is concerned, the

23 Court will be relieved to hear that I'm not in a position, just like

24 Mr. McCloskey wasn't in a position, to deal with that in any detail at

25 all. It's a complicated matter. I don't accept what Mr. McCloskey has

Page 15443

1 said, that the world has moved on and that the whole common law world no

2 longer have hostile witnesses, they call them adverse witnesses, so on and

3 so forth. Whether you'd be helped by a whole load of authorities from

4 across the common law world, hopefully some input from the civil law

5 world, I rather doubt, and the matter calls for a robust and frankly

6 fairly urgent decision, because the issue is likely I suspect to arise

7 with some of the witnesses you're going to hear shortly.

8 Very briefly, though, on the substance of the matter, we repeat

9 that the Trial Chamber should not allow the Prosecution to cross-examine

10 witnesses in re-examination when the line of cross-examination adopted by

11 the Defence was not unexpected. Excuse the double negative. But that is

12 what has happened here. The line of defence is clear. It hasn't

13 deviated.

14 And in addition to that, we repeat that the matters that I

15 cross-examined -- well, that Mr. Krgovic cross-examined Trkulja about

16 really arose on the face of his interview. So the Prosecution were aware

17 of it and should have dealt with it in advance and really should have

18 dealt with it in direct examination or at the very least have alerted us

19 to the fact that they were thinking of using these documents in due course

20 and not stick them on the list thereafter.

21 And that really is -- leads conveniently to the motion because the

22 motion asks for relief at paragraph 17(A) that we very much endorse, which

23 is that the Prosecution can only do this where the line of

24 cross-examination by the Defence could not reasonably be anticipated.

25 Because otherwise, the situation is simply going to get out of hand and be

Page 15444

1 totally unfair.

2 But ultimately, Your Honour, like anything else, it's a matter for

3 you and the other members of the Trial Chamber to decide how to regulate

4 this case and to decide the extent to which this trial should be run on

5 traditional adversarial lines or whether more flexibility should be given

6 to the Prosecution. Of course, I recognise that. But I have made my

7 position as clear as I can, I hope.

8 JUDGE AGIUS: Mr. Josse, one question, but doesn't your argument

9 plead that if the Prosecution could anticipate a hostile, adverse stance

10 by -- on the part of the witness on some particular issue, then he should

11 be able to cross-examine his witness while still on the

12 examination-in-chief?

13 MR. JOSSE: Well, I suppose logically that might be right but what

14 we -- what we say is that isn't fair, anyway, to go about conducting the

15 trial. It would be a radical departure from the way the trial has been

16 conducted hitherto and the way the trial should be conducted in future.

17 Should the Prosecution be allowed to call witnesses whom they assert are

18 not going to tell the truth, then simply cross-examine them from the

19 start. The Chamber has got to grasp the nettle about this. I'm about

20 bound to say, whether it makes any real difference, whether it's in chief

21 or re-examination, I don't really know, because again, for example,

22 actually, take my cross-examination of Savcic. Mr. McCloskey says I went

23 down a line that hadn't been dealt with in chief. That's simply not

24 true. So far as Zepa is concerned, Mr. Vanderpuye chose to ask the

25 witness a few questions only about Zepa. I then expanded upon it.

Page 15445

1 Mr. Vanderpuye then chose to cross-examine him by putting the chemical

2 weapon document to him. Is that right? We say it's not right at all.

3 JUDGE AGIUS: Okay. I think I have understood -- we have

4 understood completely your position is. Thank you, Mr. Josse.

5 Mr. McCloskey?

6 MR. McCLOSKEY: Mr. President, the -- I have a hard time getting

7 my head around that argument because I am -- the adversarial system in all

8 its wonder is very simple, direct, cross-examination, and redirect. If I

9 were required on direct to base my direct on what I have to anticipate

10 they are going to do, takes it into a whole other bizarre area. First of

11 all, a lot of these cross-examinations, as they've come out over the

12 months, I would never have anticipated the doors they've opened up. I

13 can't possibly have anticipated what they have done. I'm still shocked

14 that they did that. And now that I can anticipate their interesting

15 defence moves, now I have to base my direct examination on their mosaic of

16 Defence theories? I mean, how absurd is that?

17 Let's not make the adversarial system a laughing stock. It's a

18 good system. It's not totally the system we are working with here. Thank

19 God. It's based on jurors. And yes, we thank the Brits for bringing us

20 largely this system but we do not have jurors here and I don't think we

21 need to act like it in every move we make.

22 JUDGE AGIUS: Thank you. I think -- yes, Madam Nikolic?

23 MS. NIKOLIC: [Interpretation] Just two sentences. I fully support

24 the position put forward by my colleague, Mr. Josse. Now in relation to

25 what Mr. Prosecutor -- what the Prosecutor, Mr. McCloskey, just said, when

Page 15446

1 there are different positions presented during the evidence-in-chief, it

2 is then in redirect that it's challenged, which is something that can be

3 done in the rebuttal stage of procedure. What they do during redirect is

4 actually something that challenges what was put forward as Defence case

5 during cross-examination. Thank you.

6 JUDGE AGIUS: Thank you. Any further contributions,

7 interventions? None. So we can close that chapter, too. As I said,

8 early next week we hope to be able to come back to you with our

9 comprehensive, holistic decision covering all these issues. Yes.

10 [Trial Chamber and registrar confer]

11 JUDGE AGIUS: I'm being reminded that in relation to Witness

12 Trkulja, the Gvero Defence team wishes to tender two documents. One would

13 be 6D140, which is an IBK command specifications of materials sent to

14 General Gvero. And 6DP02828, which is a sketch of the office locations at

15 the Main Staff headquarters with Witness Trkulja's markings.

16 MR. JOSSE: Could I thank Madam Registrar for that? We had

17 completely forgotten about it.

18 JUDGE AGIUS: I had, too, so that makes two of us but I was

19 reminded by my very attentive, our attentive, very attentive registrar.

20 Yes, Mr. McCloskey?

21 MR. McCLOSKEY: I believe the first one has to do with the chess

22 board.

23 MR. JOSSE: Correct.

24 MR. McCLOSKEY: No objection to either.

25 JUDGE AGIUS: Okay. Thank you. And I wouldn't imagine there

Page 15447

1 would be any objection on the part of the other Defence teams. So these

2 documents are admitted. Thank you. What's next?

3 MR. McCLOSKEY: Mr. Nicholls and Mr. Blaszczyk have been patiently

4 waiting, but if I could just make one comment before we bring in the

5 witness, you had mentioned earlier in the day a potential issue of

6 surprise, and that got me thinking about an upcoming issue that I would

7 just offer perhaps some of your guidance for food for thought.

8 We hope to very soon be coming to the 98 bis stage, and as you

9 know, this is now an oral proceeding. In the past, when it was written,

10 we pretty much tried to cover as much of the indictment as we could,

11 especially when it was not related specifically to counts, the facts and

12 paragraphs were also part of it. But now that it's oral, I just invite

13 the Chamber to, if you have any guidance for any particular issues that

14 you would like to hear about, that we could help focus our approach on, I

15 think that would save time and try to prevent us from giving an all

16 encompassing view.

17 Of course, we'll give you our view but if there are particular

18 areas of your concern, that would be, I think, helpful for all the

19 parties. As you know, you have shown -- in the past you've given us

20 e-mails to ask us to do things and address issues you were concerned

21 about, so I would offer that is as a possibility that would help us on

22 that particular issue.

23 JUDGE AGIUS: Okay. Thank you. That will be part of our agenda

24 and we'll certainly come back to you on this issue. You know that the

25 change in the procedure necessitated a different approach than before, and

Page 15448

1 that varies from case to case depending on how big or small the case is.

2 In the Oric case, I was the first one to experiment on the Rule 98 bis as

3 amended, and the system I adopted there may not be the correct one to

4 adopt for this case, but we have to discuss that. We haven't discussed

5 that as yet amongst ourselves and we'll come back to you on it as we

6 approach that fateful day or stage of the proceedings.

7 Yes, what's next?

8 MR. McCLOSKEY: We have a witness, if you'd like to hear from

9 investigator Blaszczyk on the Drina Corps investigation -- Drina Corps

10 collection.

11 JUDGE AGIUS: How long do you expect his in-chief to last?

12 MR. NICHOLLS: Probably somewhere around an hour, maybe a bit

13 less, Your Honour. We are at your disposal, he's ready to go. There has

14 been a lot of argument today of legal issues some of which I anticipate,

15 as my friend said may come up Monday possibly, with the next witness and

16 Mr. Blaszczyk would also be available on Tuesday after the witness we have

17 coming Monday, so whichever Your Honours prefer. If you want to hear the

18 evidence now or work on other issues.

19 JUDGE AGIUS: Okay. What does the Defence think about that?

20 Examination-in-chief is estimated to run one hour approximately or less,

21 but I have three hours and 20 minutes indicated as the required time for

22 the various cross-examinations.

23 Mr. Meek?

24 MR. MEEK: Mr. President, Your Honours, I have to apologise. This

25 witness has been on stand-by for several months and as a kind of

Page 15449

1 fill-the-gap witness and we've always been told that when they put him on

2 it would be the direct examination only and then we would subsequently

3 cross-examine. As you know I was gone last Thursday afternoon and Friday,

4 so my understanding had been until just very recently that if he was put

5 on it would be for direct only and then we would cross-examine him later.

6 My proposal is that if he's put on today at all it's for the direct

7 examination and that we be allowed to cross later.

8 JUDGE AGIUS: Is there agreement on Mr. Meek's position amongst

9 the other Defence teams? Well, I would only wish to hear if anyone of you

10 does not agree with Mr. Meek. Otherwise, I take it that you do. All

11 right. What's your position on this?

12 MR. NICHOLLS: Your Honour, I have to object to that, I'm afraid.

13 I would much rather just start this witness and go through the

14 cross-examination. I understand what my friend Mr. Meek said. That was

15 the -- that was the -- our position the very first time we were bringing

16 him to fill a gap. That is now his nickname upstairs. But since then,

17 they've had all the material, they've been on notice for a long time. So

18 I don't think there really is a reason to postpone the cross. Frankly, my

19 guess is the cross will be less than three and a half hours.

20 I do need to work with Mr. Blaszczyk on other issues and I would

21 rather not have to not talk to him for some long period of time or dance

22 around what I can talk to him about and what I can't. So however we do

23 it, my preference would be that we start and stop him at one time and as

24 Mr. Meek has said, it's been several times that he's been expected to

25 testify so I think they could be ready. I think that was since May, I've

Page 15450

1 just been told, the first time we said we were calling him. So sorry to

2 repeat, I'd rather go the full show or go on Tuesday and that will give

3 Mr. Meek time to prepare.

4 JUDGE AGIUS: I ask you because we only have one hour and 40

5 minutes left today and however much reduction there may be in the time to

6 be taken for cross-examination, I don't think it's going to be cut down to

7 40 minutes amongst all the Defence teams.

8 MR. NICHOLLS: Well my preference then would be to call him

9 immediately following the next witness rather than have him go into Monday

10 and delay the start of Mr. Skrbic, and I think we will have time to start

11 and finish him after Mr. Skrbic and before the next witness, the next big

12 witness.

13 JUDGE AGIUS: Mr. McCloskey?

14 MR. McCLOSKEY: Mr. President, the other concern here, and I know

15 it's a big concern of Mr. Haynes, is that we really want to start the

16 witness after Mr. Skrbic on Wednesday because -- and I know Mr. Haynes,

17 116, and I believe other Defence counsel want to have the most days

18 possible for cross-examination before the big break, and we understand

19 that and that's why we have moved that witness on to Wednesday. So we can

20 remain flexible with Mr. Blaszczyk, though he'll probably kill us as we

21 walk out, but that's the other concern that I know is a Defence concern as

22 well as a Prosecution concern, that we may just have to consider that.

23 JUDGE AGIUS: Okay. Give us a minute, please.

24 [Trial Chamber confers]

25 JUDGE AGIUS: Ladies and gentlemen, we have discussed amongst

Page 15451

1 ourselves and taken into consideration the different or various positions

2 explained by Mr. Meek, you Mr. McCloskey, and you Mr. Nicholls, and I

3 think what comes out is the need to have the next witness Mr. Blaszczyk

4 start testifying when he's scheduled to testify and allow for the

5 possibility that he won't finish on that day. That's number 1.

6 Secondly, the need to work and come to a conclusion, to a

7 decision, on the issues that we discussed today, which may have a bearing

8 on the testimony or the way the hearing of testimony of the next witness

9 will be conducted on Monday, possibly also Tuesday. Also, what you

10 stated, Mr. Nicholls, in relation to the uncomfortable or undesirable

11 position you would be put at if direct and cross-examination are separated

12 by an interval of time.

13 We would have wished things to have gone differently today because

14 our intention was to utilise the entire time at our disposal to possibly

15 dispose of the evidence of Mr. Blaszczyk today in its entirety. We don't

16 believe that is possible. So I think what we are going to do is that we

17 are going to stop here. We will be utilising the time to conclude our

18 discussions on the various issues and possibly put ourselves in a position

19 to come back with a decision early Monday morning and then we can proceed

20 and make sure that the schedule for next week will not suffer any severe

21 disturbance.

22 Okay. That having been said, I think we can adjourn. Thank you.

23 --- Whereupon the hearing adjourned at 11.42 a.m.,

24 to be reconvened on Monday, the 17th day of

25 September, 2007, at 9.00 a.m.