1 Friday, 28 September 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE AGIUS: Good morning, everyone, and good morning to you,
6 Madam Registrar. If you could kindly 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.
10 All the accused are here. I don't want to make the same mistake
11 as yesterday. Mr. McCloskey is on his own. And, from the Defence teams,
12 I notice the absence of Mr. Ostojic. I think that's it.
14 Yes, Mr. Lazarevic?
15 MR. LAZAREVIC: Yes, Your Honour, I would just like to present
16 Mr. Stojanovic who is joining the Defence team for these proceedings.
17 JUDGE AGIUS: I thank you, Mr. Lazarevic and welcome, sir.
18 Yes, Mr. McCloskey?
19 MR. McCLOSKEY: Yes, Mr. President. One of the first exhibits
20 this morning will be the duty officer work book that everyone is familiar
21 with. In discussions with the Defence, I've been trying to find a best
22 way to go through. (redacted)
24 JUDGE AGIUS: Yes, yes. We are in open session.
25 MR. McCLOSKEY: Sorry. I see those curtains down, and I think we
1 are closed.
2 JUDGE AGIUS: Okay. It's one further case of not looking, never
3 looking behind, Mr. McCloskey. So let's redact this and let's go into
4 closed session straight away.
5 [Closed session]
11 Pages 15961-16033 redacted. Closed session
12 [Open session]
13 MR. THAYER: Good afternoon to you, Mr. President, and Your
14 Honours. Good afternoon, everyone.
15 JUDGE AGIUS: Good afternoon.
16 MR. THAYER: Thank you, Mr. President.
17 I initially asked for some additional time to respond to some
18 issues that were raised in our friend's response on the issue of General
19 Smith's expert statement. I didn't want to engage in surreplies or
20 extended oral argument, neither is it something that we wanted to take the
21 Court's time up with. And as time has passed and in consultation with my
22 friends, most of the issues I had wanted to raise have resolved
23 themselves. There are two that remain, and I think that we can dispose of
24 them or raise them pretty quickly.
25 The first is there is a case to which I'd like to bring the
1 Court's attention that neither party cited in our filings. And where I
2 come from, if you miss a case or if you see a case later on, whether it
3 hurts you or especially if it hurts you, you have an obligation to bring
4 it to the Court's attention. This is a case that, I think, that cuts both
5 ways, and I just wanted to advise the Court of its existence.
6 It is the 16 November 2006 Milutinovic decision on the Ojdanic
7 motion to preclude parties from calling expert witnesses. For the most
8 part, the substance of what is in this decision, and it's discussed
9 briefly in a couple of foot notes, has been address, but it's a decision
10 that's out there and I just wanted to bring it to the Court's attention.
11 That's the first issue, Your Honours.
12 The second is the degree of overlap, if any, between the expert
13 reports of Mr. Butler and the expert statement of General Smith, and I
14 think we both left our arguments rather vague in that respect. I suspect
15 that it's because, I can speak for myself only, that we presumed that the
16 Court would review both reports during the course of its deliberation.
17 Subsequent discussions, with respect to other exhibits and
18 materials, made me think that perhaps the Court would not take that step
19 to read both reports or all reports in coming to its decision; and if
20 that's the case, I wanted to elaborate a little bit more on our position,
21 that they do not overlap, that they are complementary and not redundant of
22 each other. If the Trial Chamber does intend to read these reports, then
23 I'll sit down, and I won't have anything further to say.
24 I think I can leave it in the Court's hands to parse out the
25 various sections of the reports and make that determination; otherwise,
1 I'd like to say a few words about how, in my submission, they do not
3 [Trial Chamber confers]
4 JUDGE AGIUS: The reports will be read.
5 MR. THAYER: Very well, Mr. President. I have one witness
6 planning matter, if I could just address very briefly. I think it's
7 important for planning purposes for everyone concerned.
8 It's to some degree speculative, but there is enough that we have
9 to deal with, I think, sooner than later to bring to the Court's
10 attention, and that is with respect to the witnesses number 2 and 32.
11 Witness 32, Thomas Dibb is scheduled to testify the 15th of
12 October, and that is a Monday. He is travelling from Afghanistan.
13 JUDGE AGIUS: I'll stop you there. I don't see how he can testify
14 on that Monday, because on the 9th we continue with the cross-examination
15 of the previous witness and he won't finish.
16 MR. THAYER: That's my submission, Your Honour. That's why I
17 wanted to bring this to the Court's attention. We would ask, and I've
18 contacted my friends, (redacted)
19 at least -- sorry.
20 JUDGE AGIUS: Let's redact. Okay. Go ahead.
21 MR. THAYER: I would ask that we interrupt the testimony of the
22 current witness so that we can put on Mr. Dibb, who I believe will be a
23 relatively short witness. His travel has been planned long ago. He is in
24 country in Afghanistan doing de-mining work. This was the only time
25 period that he had available to come here to testify. Again, I don't
1 think it would be more than a day or two maximum. I don't intend to
2 examine him for more than an hour and a half, if that.
3 So we would ask that we be able to put him on the stand and get
4 him off the stand in a day or two and then resume the cross-examination of
5 this witness so that we can accommodate and otherwise I'm afraid
6 unavailable witness.
7 JUDGE AGIUS: Is there any objection from the Defence teams? The
8 understanding would be, so that I make it clear, that there will not be an
9 interruption of any cross-examination halfway through. That's what I
10 would definitely guarantee you.
11 Yes, Mr. Bourgon?
12 MR. BOURGON: That's our position, Mr. President. That we do not
13 feel it is appropriate to brake the cross-examination into two parts. It
14 has to be ongoing and finish in one part.
15 JUDGE AGIUS: All right. I could anticipate what you are saying
16 that for.
17 MR. BOURGON: Thank you, Mr. President.
18 JUDGE AGIUS: Yes, Mr. Thayer, I think we can plan accordingly.
19 MR. THAYER: Just to make sure I understand, when we speak of
20 breaking, we are --
21 JUDGE AGIUS: One moment. There is --
22 MR. THAYER: I think this is something that both sides may need to
24 JUDGE AGIUS: What's the problem. I see Mr. Josse, Mr. Zivanovic,
25 Mr. Bourgon, and now Mr. Haynes engaged in a --
1 MR. JOSSE: On that, Your Honour, I suspect, with all due respect
2 to him, Your Honour may have misunderstood Mr. Bourgon's submission, and I
3 think that's what we were all telling him. So I think he may need to
4 address the Chamber again. That's all I have to say on this issue.
5 I would quite like to return briefly to the General Smith issue
6 when I get a chance.
7 JUDGE AGIUS: Yes.
8 Mr. Bourgon?
9 MR. BOURGON: Mr. President, our position, and I think I speak for
10 all, everyone on the Defence side, there should be no interruption
11 whatsoever during cross-examination of the complete cross-examination by
12 the seven co-accused in this case, from start to finish.
13 So, therefore, we do not consent and we object to the request of
14 Mr. Thayer, asking for a break of one, two, or three days.
15 Thank you, Mr. President.
16 JUDGE AGIUS: I misunderstood you. I apologise for that. I
17 thought no interruption during any particular cross-examination.
18 So you do have an objection, Mr. Thayer?
19 MR. THAYER: Yes, Your Honour. I mean, this witness may be
20 otherwise unavailable. I don't have any objection to not interrupting a
21 particular cross. So if my friends can somehow plan accordingly during
22 that 9th, 10th and 11th period, if there is somebody with three days of
23 cross, then I think that is a fair resolution to this logistical issue.
24 JUDGE AGIUS: Yes, Mr. Bourgon?
25 MR. BOURGON: Mr. President, if I could just add, we are most
1 willing to accommodate the Prosecution with any scheduling of witnesses
2 so. Our position has nothing no do with the witness who has to come, and
3 we can play and negotiate anything with my colleague to make sure that he
4 can come at another time. Our concerns are strictly related to this
5 witness for whom we want to do a unique cross-examination in a row without
6 any interruption.
7 I believe, Mr. President, that it is important not only for us,
8 but also even for the witness himself. The Trial Chamber has given him --
12 [Closed session]
11 Pages 16040-16043 redacted. Closed session
19 --- Whereupon the hearing adjourned at 2.02 p.m.,
20 to be reconvened on Tuesday, the 9th day of
21 October, 2007, at 2.15 p.m.