1 Tuesday, 23rd February, 1999
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 10.17 a.m.
5 JUDGE BENNOUNA: (Interpretation)
6 Mr. Registrar, can you call the case, please?
7 THE REGISTRAR: Good morning, Your Honours.
8 Case number IT-95-9-PT, the Prosecutor versus Milan
9 Simic, Miroslav Tadic, Steven Todorovic and Simo
11 JUDGE BENNOUNA: (Interpretation) First of
12 all, for the benefit of the two parties, I should like
13 to say that Judge Richard May is very sick today. He
14 has gone down with flu and he apologises for his
15 absence. I am, therefore, going to ask the parties,
16 that is the Prosecution and the Defence, first of all
17 to introduce themselves, and then I would like to hear
18 their view, that is whether they agree that the Chamber
19 sit in this composition, that is Judge Patrick Robinson
20 and myself, but first let me ask you to introduce
21 yourselves, please.
22 MS. HASLUND: Thank you, Your Honour. The
23 Prosecution --
24 JUDGE BENNOUNA: (Interpretation) Can the
25 accused follow in a language they understand?
1 MR. PANTELIC: No, Your Honour.
2 JUDGE BENNOUNA: (Interpretation) No? There
3 appears to be a translation problem. Let us check with
4 the booth, please. Can you hear us now? Can the
5 accused understand and follow in a language that they
6 understand? There's the English translation for the
7 parties. Are you able to follow the English
9 Legal officer, can someone assist Judge
10 Robinson, please?
11 MS. FEATHERSTONE: One, two, three. One,
12 two, three. English booth? One, two, three?
13 JUDGE BENNOUNA: (Interpretation) Is it all
14 right now?
15 JUDGE ROBINSON: Yes.
16 JUDGE BENNOUNA: (Interpretation) The
17 Prosecutor, please. Will you please -- let's hear the
18 appearances for the Prosecution, please.
19 MS. HASLUND: Thank you, Your Honour. I am
20 Anne Haslund. I appear on behalf of the Prosecutor,
21 and on my right side is Ms. Nancy Paterson, and on my
22 left side is Ms. Mary MacFadyen, and there is Carmela
23 Annik-Janvier, our case manager. We do not object that
24 only two Judges participate in this hearing. Thank
1 THE INTERPRETER: Microphone, please.
2 Microphone, Defence counsel. Microphone, please. It's
3 not switched on.
4 MR. BRASHICH: I always seem to have a
5 problem with this microphone. With regard to the
6 inquiry by the Court as to the composition of the
7 panel, I would like to consult with other Defence
8 counsel before expressing a position, and, therefore,
9 after the parties and their counsel introduce
10 themselves, I would like to caucus with Defence counsel
11 if that request would be granted by the Court. Thank
13 JUDGE BENNOUNA: (Interpretation) That's
14 perfect. Let me ask the other Defence counsel to
15 introduce themselves and then we will give you a few
16 minutes to consult amongst each other before we ask for
17 your answer. Will the other Defence counsel introduce
18 themselves, please?
19 MR. AVRAMOVIC: (Interpretation) Your
20 Honours, my name is Branislav Avramovic, Defence
21 counsel for Milan Simic.
22 JUDGE BENNOUNA: (Interpretation) Thank you.
23 MR. PISAREVIC: (Interpretation) Your
24 Honours, my name is Borislav Pisarevic, Defence counsel
25 for the accused Mr. Simo Zaric.
1 MR. PANTELIC: Your Honour, I'm Igor
2 Pantelic, Defence counsel for Miroslav Tadic. Although
3 I'm not so in good shape these days because of the flu
4 but still I'm here. Thank you.
5 JUDGE BENNOUNA: (Interpretation) Thank you,
6 Mr. Pantelic.
7 MR. DE SAINT JUST: (Interpretation)
8 Mr. President, I'm Saint Just from the Paris bar, and
9 I'm co-counsel of Mr. Pantelic for Miroslav Tadic, and
10 this is the first time that I appear in your court,
11 Your Honour.
12 JUDGE BENNOUNA: (Interpretation) Thank you
13 and welcome.
14 At the request of Mr. Brashich, you wish to
15 consult with the other Defence counsel?
16 MR. BRASHICH: I would request only two or
17 three minutes, and rather than having the Court be
18 disturbed, perhaps I and co-counsel could just go to
19 the robing room for one minute and exchange views and
20 come right back in without disturbing the Court.
21 JUDGE BENNOUNA: (Interpretation) Yes, please
22 do that. We have -- we shall have a two-minute break
23 to give Defence counsel time to consult.
24 (Short break)
25 JUDGE BENNOUNA: (Interpretation) Mr.
2 MR. BRASHICH: I have consulted with
3 co-counsel -- Defence counsel, and the position that I
4 take on behalf of the defendant Todorovic, is that all
5 motions now pending before the Court I will agree as to
6 the composure of the panel, except for two motions I
7 have made with regard to the defendant Todorovic, and
8 that is the motion to sever and the motion for an
9 evidentiary hearing on the arrest and detection of my
10 client. I would like to have a full bench with regard
11 to those two motions.
12 JUDGE BENNOUNA: (Interpretation) Thank you,
13 Mr. Brashich. I'm going to consult with my colleague.
14 The Chamber accepts your request. Therefore,
15 we're going to deal with all the pending motions that
16 I'm going to refer to in a moment, with the exception
17 of two motions, the motion for a severance and the
18 motion on evidentiary hearing on the arrest, regarding
19 which we will have another hearing later on with the
20 full composition of the Chamber to -- in response to
21 your request.
22 The motions -- the total number of pending
23 motions are 15. We have four motions submitted by the
24 Prosecution, the Office of the Prosecution, and eleven
25 motions submitted by the Defence, basically by the
1 Defence of Mr. Todorovic. I would suggest -- of
2 course, we received the motions and virtually all the
3 responses to those motions yesterday evening. I would,
4 therefore, suggest that we first hear the motions of
5 the Prosecution in the following order: The two
6 motions on judicial notice on the character of the
7 conflict, that is judicial notice regarding the
8 character of the conflict --
9 THE INTERPRETER: The Judge is repeating in
11 JUDGE BENNOUNA: (Interpretation) -- and
12 judicial notice of adjudicated facts, which, in my
13 view, could be heard together.
14 I shall first give the floor to the Office of
15 the Prosecution regarding these two motions before
16 hearing the defence. After that we will proceed in the
17 following order: We will address the motion on the
18 admission of evidence, followed by the motion on the
19 conflict of interest, which was also submitted by the
20 Prosecution, and then I will give the floor to Defence
21 counsel and we will proceed with the motion submitted
22 by the Defence. Mr. Brashich?
23 MR. BRASHICH: The way the Court has
24 suggested -- or ordered, could I possibly suggest that
25 the first order of business would be the conflict of
1 interest of one of the Defence counsel? If that is
2 decided subsequently, then we would have a defendant
3 without counsel present in these proceedings. So if I
4 could respectfully suggest that we clear up that matter
5 first, as to whether or not there is a conflict with
6 one of the Defence counsel. And assuming that the
7 Court rules that there is no conflict, then we could
8 proceed with the other motions. This is only a
9 suggestion, Your Honour.
10 JUDGE BENNOUNA: (Interpretation) The view of
11 the Prosecution, please?
12 MS. HASLUND: The Prosecution will leave it
13 to the Court to decide in what order the motions should
14 be orally argued.
15 JUDGE BENNOUNA: (Interpretation) Let us begin
16 then with the motion on the conflict of interest
17 submitted by Madam Haslund, and you have the floor.
18 MS. HASLUND: As the Prosecution is
19 represented by three lawyers. I shall inform the Court
20 and my learned colleagues on the defence bar that we
21 have divided the tasks among us, and Ms. Nancy Paterson
22 will represent -- will represent the Prosecutor in the
23 oral argument on the international conflict and the
24 adjudicated facts. Thank you.
25 If Your Honour decides that the motion
1 submitted by the Prosecution on the conflict of
2 interest should be dealt with first, it will be
3 Ms. Mary MacFadyen who will represent the Prosecutor.
4 Thank you.
5 JUDGE BENNOUNA: (Interpretation) Ms. Mary
6 MacFadyen, you have the floor.
7 MS. MacFADYEN: (Interpretation) I'm Canadian
8 but English speaking, so I'm going to speak in English
9 if you don't mind.
10 (In English) The Prosecution motion asking
11 for the Court to determine if there is indeed a
12 conflict of interest regarding Mr. Pisarevic's --
13 Mr. Pisarevic's representation of Mr. Zaric was filed
14 on December 16th. There was only one response from the
15 Defence counsel, and that was on January 21st, 1999
16 from Mr. Pisarevic.
17 Some recent developments since the Defence
18 motion was filed should be brought to the notice of the
19 court, and that is with respect to the footnote number
20 23 in the Prosecution's motion, which indicates that
21 Mr. Pisarevic is aided by Mr. Nenad Borcilovic. I
22 understand that he was registered with the Registry as
23 a legal assistant until January 29th of this year, at
24 which time he was replaced by a Mr. Lasarevic, I
25 believe, or Jaravic. I'm not exactly sure what his
1 first name is, the Registry didn't give me that. It
2 appears that he was replaced as a legal assistant for
3 Mr. Pisarevic very shortly after the Status Conference
4 on January 21st, 1999.
5 It is the Prosecution's contention that
6 Mr. Pisarevic, even if all of the parties present do
7 not intend to call him as a witness at this time, is
8 likely to be a witness because of his position and
9 knowledge of the facts. Those are set out in the
10 Prosecution's motion, and I will just summarise them.
11 There are four matters that Mr. Pisarevic
12 would have personal knowledge of and which he might be
13 called as a witness, most likely in rebuttal if not in
14 cross-examination or in direct, but if, in fact, all
15 the parties agree that he wouldn't be called as a
16 witness, then it would be most likely in rebuttal, and
17 that is with respect to his relationship with the
18 victim-witness Mr. Sulejman Tihic.
19 According to Mr. Tihic, a statement which has
20 been presented to the Defence and the court in the
21 confirmation materials, Mr. Tihic, on the night of the
22 invasion of Bosanski Samac on April the 17th, 1992,
23 stayed at the house of Mr. Pisarevic, and, in fact,
24 talked to him about whether or not he should
1 Mr. Pisarevic apparently phoned Simo Zaric
2 and Blagoje Simic both of whom are co-accused in this
3 matter, and according to the witness Mr. Tihic, Blagoje
4 Simic demanded that Mr. Tihic surrender, but Mr. Zaric
5 told him not to. However, Mr. Pisarevic later on
6 accompanied Mr. Tihic to the police station where, in
7 fact, he was arrested by Mr. Todorovic -- well, he was
8 presented to Mr. Todorovic, and he was taken there at
9 gun point.
10 So, in fact, Mr. Pisarevic is witness to a
11 conversation that was, as far as the Prosecution is
12 aware, between himself and two co-accused. Mr. Tihic
13 can only testify as to what he heard on one side of the
14 conversation. It has been indicated in the response by
15 Mr. Pisarevic to the motion that, in fact, everything
16 that Mr. Tihic says is in dispute.
17 I suggest, therefore, that the only evidence
18 of what really occurred in that conversation either
19 comes from either of the accused or Mr. Pisarevic. If
20 neither of the accused wish to testify for any other
21 reasons, they would be forced to testify in order to
22 give the Court full knowledge of this conversation,
23 which I suggest goes to the credibility of Mr. Tihic,
24 the witness. One of the important witnesses in the
25 Prosecution's case.
1 The second point that would indicate
2 Mr. Pisarevic is -- his knowledge is of importance with
3 respect to his position on conflict is that prior to
4 the invasion on April 17th, 1992, he was the president
5 of the Party of Democratic Changes, which the
6 Prosecution hopes to show was connected with the
7 Serbian party. He apparently had advance knowledge,
8 according to the Prosecution's witnesses, of the
9 invasion. And since in some of the counts in the
10 indictment that is before the court today it's
11 indicated that the planning and instigation, the
12 commission of persecutions and deportations as a result
13 of much of the planning that occurred through party
14 before the invasion, I would suggest that
15 Mr. Pisarevic's personal knowledge of what went on
16 would be of great value to the Prosecution, if not the
18 Thirdly, there is a witness, Omar Nalic,
19 whose name was disclosed to the Defence on January 21st
20 at the Status Conference and also in this motion,
21 December the 16th, who claims to have had a forced
22 confession extracted from him by Simo Zaric. It was
23 later used, it was later indicated to him that it would
24 be used, in a Serbian military Court in Jelina, at
25 which Mr. Pisarevic was also present. The victim
1 statement is a little vague on this point, it's quite
2 true. Mr. Pisarevic at that time indicated that he
3 would either represent Mr. Nalic or find someone to
4 represent him. He then disappeared from the scene. As
5 a consequence of this military Court in Jelina,
6 Mr. Nalic was convicted of armed insurrection.
7 Fourthly, Mr. Pisarevic was a witness himself
8 to an important event in the Prosecution's case, and
9 that is with respect to the counts charging the beating
10 of Hasan Bisic, Muhamed Bisic, and Perica Misic.
11 According to the witness statements, they were beaten
12 by Mr. Milan Simic, and following that beating,
13 Mr. Simic took Hasan Bisic and Perica Mesic out of
14 detainment for an evening of entertainment at his
15 office. On the way back from his office, Mr. Hasan
16 Bisic and Perica Misic saw Mr. Pisarevic, whom they
17 knew before, because he was a prominent citizen of
18 Bosanski Samac, on the street.
19 It is the Prosecution's contention, and
20 certainly would be that that is conclusory of the
21 witness statements, that Mr. Pisarevic may have been
22 able to see what condition these two witnesses were in
23 at the time, or even who they were with, in some way
24 corroborating their testimony. I would suggest that in
25 this particular case, Mr. Pisarevic's evidence, unless
1 there is another witness who can testify as to the same
2 thing, is essential.
3 With respect to this Court being asked to
4 decide if there is a conflict of interest, it is not
5 the usual course of events that a Court is asked to
6 determine whether counsel in a matter before it suffers
7 from a conflict of interest; but in this case there is
8 no international bar association which can sanction any
9 participant in this particular Court. In fact, there
10 is a code of professional ethics set out by the
11 Tribunal, and it indicates that in fact, no conflicts
12 of interest will be tolerated.
13 According to -- according to page 10 of the
14 Defence motion on conflicts, Article 9 (ii) of the
15 Professional Ethics Code indicates that when conflicts
16 arise -- sorry; in the course of representing a client,
17 counsel must exercise all care to ensure that no
18 conflict of interest arises. And under 9(v), where a
19 conflict of interest arises Article 9(v) provides that
20 the counsel must promptly and fully each potentially
21 affected client of the and nature and extent of the
22 conflict and either take all steps necessary to remove
23 the conflict or obtain the full and informed consent of
24 all potentially affected clients to--
25 THE INTERPRETER: Counsel, slow down, please.
1 MS. MacFADYEN: -- So long as counsel is able
2 to fulfil all other obligations under this code.
3 Under 9(i) of the Code of Professional
4 Conduct, which appears on page 13 of the Prosecution's
5 motion, counsel owes a duty of loyalty to his or her
6 client. Counsel must at all times act in the best
7 interests of the client and must put those interests
8 before their own interests or those of any other
10 In article 9(iii)(C) also on page 13 of the
11 Prosecution's motion, it indicates that the counsel's
12 professional judgement on behalf of the client will be
13 or may be reasonably expected to be adversely affected
14 by the counsel's responsibilities to or interests in a
15 third party.
16 Therefore I would suggest that
17 Mr. Pisarevic's personal knowledge and dealings with
18 certain of the coaccused, and of the victim/witnesses
19 and his knowledge of the party which is personal to
20 him, would affect his judgement with respect to his
21 client and also with respect to his cross-examination
22 of the victim/witnesses.
23 JUDGE BENNOUNA: (Interpretation)
24 Ms. McFadyen, I forgot to specify, and I'm doing it
25 now, perhaps -- I hope it is not too late, to the
1 extent to which we have the documents, either of the
2 Prosecution or the Defence, as you know, the rule is
3 that during the hearing, we refer to the substance;
4 that is, the points that have not already been made in
5 the motions. I'm drawing your attention to this to say
6 that the chamber would like the arguments to be limited
7 to five or to ten minutes on each side.
8 I will finish very soon. I'm not trying to
9 prevent you from admitting any of your arguments, but
10 I'm just asking you to focus on the essential. Thank
12 MS. MacFADYEN: The last point that I would
13 like to make, then, in fact, is that Mr. Pisarevic may
14 argue that in fact the accused has the right to a
15 counsel of his choice. I would only signal Your
16 Honour's attention to the European Human Rights
17 Commission convention which indicates, at page 17 of
18 the Prosecution's motion, the right to defend one's
19 self through assistance of one's own choosing is not an
20 absolute right, but limited by the right of the state
21 to make regulations concerning the appearance of
22 lawyers before courts. The state has full discretion
23 to exclude lawyers from appearing before courts.
24 Those were all the points that the
25 Prosecution wants to bring to your attention; thank
2 JUDGE BENNOUNA: (Interpretation)
3 Ms. McFadyen, you quoted Article 9 that we have in
4 front of us, and that you used in your motion to which
5 you have referred, which speaks about the duty of
6 counsel. That is Article 9(i), is as follows.
7 Just a moment; I still haven't put my
8 question to you.
9 You spoke about the absence of an
10 international bar association. In your opinion, does
11 this Tribunal, our Tribunal, have the jurisdiction,
12 according to its statute and its Rules of Procedure and
13 the code of ethics, to take a decision and eliminate or
14 prevent an attorney from defending an accused?
15 MS. MacFADYEN: This matter, namely conflict
16 of interest, presented to the Tribunal by a Defence
17 counsel, is before the Tribunal as we speak in the
18 Jelisic case. It is another type of conflict of
19 interest but in fact the Tribunal is being asked at the
20 same time to rule on a conflict of interest, because of
21 the fact that they have to be the final arbiter of the
22 code of professional ethics in the Tribunal, and their
23 own law.
24 JUDGE BENNOUNA: (Interpretation) Thank you,
25 Ms. MacFadyen.
1 Judge Patrick Robinson has a question for
3 JUDGE ROBINSON: Ms. MacFadyen.
4 MS. MacFADYEN: Yes.
5 JUDGE ROBINSON: If the chamber is to
6 determine this question of a conflict, might it not be
7 the case that in view of the submissions that have been
8 made by the attorney you may have a conflict as to
9 facts, and would that not require a determination by
10 the chamber as to those facts, where there is a dispute
11 as to the facts? Would that not require an evidentiary
12 hearing? Is this going to require a hearing? Would
13 you like to address the question whether it would not
14 be more appropriate for the chamber to deal with this
15 question if and when it arises during the trial?
16 MS. MacFADYEN: Your Honour, I believe that
17 the Rules actually deal with this question, and that is
18 that they indicate that where there is no dispute in
19 matters of facts then it makes no difference that the
20 counsel representing an accused before the Tribunal has
21 a conflict of interests. But where there is dispute of
22 facts, then that causes a conflict of interest; that is
23 not possible before the Tribunal. I would suggest
24 because of Mr. Pisarevic's response, he indicates in a
25 couple of points at least, if not all four, that those
1 facts are in dispute. Therefore, I would suggest that,
2 in fact, the very fact that there's a dispute is
3 enough, without going into the actual facts themselves
4 and what is in dispute.
5 JUDGE BENNOUNA: (No interpretation).
6 THE INTERPRETER: Could we ask your honour to
7 turn his microphone on, please.
8 JUDGE BENNOUNA: (Interpretation)
9 Mr. Pisarevic, my microphone was not on. I'm giving
10 you the floor now.
11 Excuse me; the same rule applies. Please
12 limit yourself to the amount of time which is given to
13 you; that is about ten minutes.
14 MR. PISAREVIC: (Interpretation) Your Honour,
15 I do appreciate your remark, and I fully understand it
16 and I will do my best to adapt my intervention to that
17 time limit. However, in view of the fact that we are
18 dealing here with a very serious issue, I'm convinced
19 that you will understand me if I do overstep that time
21 First of all, let me express my deepest
22 gratitude to this Tribunal for providing me with an
23 opportunity to address this issue, to express my
24 position regarding the Prosecutor's motion about the
25 conflict of interest involving myself personally and
1 the interests of my client, Mr. Simo Zaric, and also
2 possible conflict of interest with other co-accused
3 Mr. Miroslav Tadic, and Mr. Milan Simic and Todorovic.
4 Your Honours, I have already submitted my
5 written response to remove me as Defence counsel of
6 Mr. Simo Zaric. However, I feel the need to, further
7 on, express my position regarding the potential
8 conflict of interest.
9 In view of the protection of interests and
10 rights of Mr. Zaric, his right to have a fair trial, my
11 conscience and my professional ethics demand that I
12 express my position regarding all relevant issues
13 mentioned in the motion of the Prosecution.
14 I do appreciate the concern of the Prosecutor
15 and I do appreciate the wish to have -- to secure a
16 fair trial to the accused Mr. Simo Zaric. I also
17 appreciate the wish of the Prosecution to point to the
18 possible consequences of the Trial Chamber which may
19 arise during the proceedings.
20 I'm placing a lot of effort -- I've been
21 doing this for this past four years, to make sure that
22 my client, Mr. Simo Zaric, receives a fair trial, and
23 with that objective in mind, as early as April 1996, a
24 long time ago, therefore, I, together with the approval
25 of Mr. Zaric and Mr. Tadic, made direct contact with
1 the investigators of the OTP and with the legal advisor
2 Ms. Nancy Paterson in person. We met in the town of
3 Orasje which is within the federation of Bosnia and
5 Therefore, we've been in contact for the past
6 four years, and I believe that we've had a very good
7 co-operation throughout that time, and I also think
8 that the results of that co-operation can be seen from
9 the voluntary surrender of Mr. Tadic, Mr. Zaric and
10 Mr. Simic. They are surrendered to the competence of
11 the International Tribunal.
12 Our co-operation was emphasised by the
13 Prosecutor throughout the preliminary proceedings, and
14 we are still endeavouring to promote that co-operation
15 so much as it is, of course, in the interests of our
16 clients and in the interest of the Defence.
17 The Prosecutor has mentioned a number of
18 facts. In their view these facts are in dispute, but
19 I'm afraid that they have been erroneously presented.
20 The allegations of the Prosecution that I am
21 a citizen of the town of Samac are true. I was born in
22 Samac, I completed my education there. I went to the
23 university in Sarajevo, and in 1972 I was an intern
24 Judge in Samac and the president of the Municipal Court
25 in Samac, and I've been working as attorney at law
1 since 1980. I'm still doing the same job in the town
2 of Samac.
3 It is also true that I am very well-known
4 person both as a lawyer and as a politician. It is
5 true that I was president of the Social Democratic
6 Party in the municipality of Samac. I was a member of
7 the parliament which was established after the first
8 multi-party elections in 1990.
9 At that time, as an MP, and together with
10 other members of my party, we were representing the
11 only opposition party in the then parliament which was
12 dominated by the HDZ, SDS and SDA in coalition.
13 My participation in the government was
14 inexistent at that time, both de jure and de facto,
15 except for my political activities within the Social
16 Democratic Party, which were most of all in favour of
17 peace and fighting against war.
18 It is true that certain witnesses which have
19 been mentioned have been my clients. I represented
20 them before state and judiciary organs in various
21 proceedings. It is also true that many witnesses were
22 my colleagues -- are still my colleagues,
23 professionally speaking, and they're also my friends.
24 It's also true that during the relevant times
25 during the conflict I was in Samac all the time, and it
1 is true that I was a member of the army of the
2 Republika Srpska until I was wounded on the 20th of
3 September, 1992. After treatment I went back to the
4 army and I was fulfilling various duties and tasks
5 until 1996.
6 As regards my assistance to Mr. Tihic, I can
7 say the following: It is not true that Mr. Tihic came
8 to see me at my house. If one reads very carefully the
9 statement given by Mr. Tihic, it follows -- it will
10 become apparent that I myself went to see Mr. Tihic, in
11 my car, I went to get him and his wife, and it is not
12 true that he spent night at my place. That occurred
13 later on, on the next day. The idea was simply to
14 provide assistance to Mr. Tihic. I didn't want him to
15 experience any troubles.
16 It is also erroneous that I talked to
17 Mr. Zaric and Mr. Blagoje Simic as the Prosecutor has
18 indicated. It was Mr. Tihic first who established
19 contact with them. It is true that I myself, I also
20 talked to them, but it was with the purpose of
21 preventing a sort of major -- more serious conflict in
22 the town of Samac. However, that conflict was already
23 looming in the town.
24 It is not true that I escorted Mr. Tihic to
25 the police station. Mr. Tihic and myself were taken,
1 both of us, to the police station.
2 All this, if the Prosecution made any effort
3 to read it more carefully, can be found in the
4 statement of Mr. Tihic and in the recollections of
5 Mr. Tihic that have been provided to us as discovery
7 It is also true that I talked to Mr. Tihic
8 when he came to see me the next night, but we were
9 discussing the possibility of what can be done so that
10 we can prevent a conflict.
11 Further, it is not true that I was the only
12 witness of the arrest of myself and Mr. Tihic.
13 Witnesses will be called before this Tribunal,
14 witnesses that have been proposed and who were also
15 eyewitnesses to the incident, and they will be given an
16 opportunity to discuss this issue.
17 As regards Mr. Tihic's claim that I had sided
18 with Serbs, well, I believe this is just his personal
19 opinion. However, the fact is not true, because I was
20 fiercely opposed to any nationalism, regardless of the
21 ethnic community it was coming from, because
22 nationalism could be seen in all three ethnic
23 communities and generated by all three nationalistic
24 parties. I did not participate in the government, and
25 later on it was obvious that we had no influence in the
1 conflict, and we didn't have any influence in the
2 Republika Srpska and in Bosnia-Herzegovina in general.
3 Everything that happened happened through the
4 participation of the parties in power.
5 And I want to make one thing clear before
6 this Trial Chamber. I am a Serb and I am a Serb
7 patriot. However, I'm not a nationalist. I'm not a
8 chauvinist as the Prosecutor has attempted to describe
10 I didn't know about the attack on Bosanski
11 Samac. If I had known about the impending attack I
12 would have taken my family away. This was done by a
13 number of Serbs and Muslims. You can see for
14 yourself -- you can see about that from the statement
15 of Mr. Tihic. I didn't have any contacts with the
16 offices of the JNA, except one contact which I had to
17 establish under the orders of my party, and it was for
18 the purpose of protecting the population of Bosanski
20 As regards Article 9, when Prosecution is
21 talking about my contacts with Omer Nalic, I have to
22 say the following: Only certain segments have been
23 picked up from the statement of Omer Nalic which do not
24 paint the right picture of our conflict. It is true
25 that I was at the military court. It is true that I
1 was in contact with Mr. Nalic, but I had come there
2 upon his request. He wanted to see me and I wanted to
3 assist him both morally and in very concrete terms.
4 He did sign a power of attorney for me so
5 that I could come there, so that I could appear, but I
6 did not take part in the proceedings. Nalic himself
7 said that it was a farce.
8 It is true I was at Batkovic on one occasion
9 but the purpose of my visit was to take medicine to
10 Mr. Nalic. I can only say how I managed to get there.
11 I was seen by some people from Samac and I may have
12 said that I would like them to go back to Samac, but
13 not as prisoners but as free citizens. I didn't see
14 any statement given by Mr. Omer Nalic in Bjeljina
15 either to Simo Zaric, or to the Court in Bjeljina in
16 general. I just want to say that it is not true that
17 Mr. Omer Nalic was convicted by the Court in Bjeljina
18 for the charge of armed insurrection.
19 It is true I was not a disinterested observer
20 of the war, because I advocated a cessation of the war
21 and I placed all my intellectual and moral abilities to
22 that interest and I was one of the founding members,
23 together with Mr. Simo Zaric together with the
24 Republika Srpska presided by Zivko Radicic and he is a
25 member of the presidency of Bosnia-Herzegovina and a
1 member of the executive council of the government of
2 Republika Srpska.
3 It is true that I said hello to Misic and
4 Bisic. It was dark, it was during the night. It is
5 not true that I was wearing a uniform. Even if I had
6 been wearing a uniform, I don't think that that by
7 itself is something wrong. At that time an army of
8 Republika Srpska was in existence, and the claim that
9 that army had occupied the town is erroneous because
10 the army was established on the 20th of May, 1992 and
11 the takeover occurred on the 18th of April, 1992.
12 Why does the Prosecution claim that after the
13 beating up I saw Mr. Perica Misic and Hasan Bicic.
14 That is absolutely not true. They needed to read a
15 little more carefully the documents and their
16 statements. I saw them several days later. It was
17 night when I saw them, I greeted the people, I asked
18 them how are you, they said fine. I didn't examine
19 them to see whether they had any injuries or -- that
20 could be seen.
21 However, in a certain place in the motion --
22 JUDGE BENNOUNA: (Interpretation) Just a
23 moment, please. The Chamber is prepared to hear you,
24 but within the limits that I have indicated, and that
25 is that we are discussing a conflict of interest and
1 not pleading your own case, so please bear this in
3 MR. PISAREVIC: (Interpretation) Thank you,
4 Your Honour, I shall do my best.
5 However, if Mr. Zaric trusts me as his
6 Defence counsel, the Defence counsel of his choice,
7 allow me to say that it is Zaric who is more concerned
8 than the Prosecution. Wherever I was and whatever I
9 saw, I had to see and do because I was living there,
10 and there is no need for me to testify about those
11 facts. All this points to the conclusion that not one
12 of the accused will call me as a Defence witness.
13 As for the Prosecution and its intimation
14 that it might call me as a witness, I think it will not
15 be useful, bearing in mind that I have 90 per cent of
16 the documents of the Prosecution and I'm deeply
17 involved in the defence of Mr. Zaric.
18 If the Prosecution were, however, to call me
19 as a witness, I will ask the Court to relieve me of
20 that obligation because of my duty to keep silent about
21 all the facts I have learnt in the course of the
22 Defence. I have nothing to defend myself against. My
23 conscience is clear. If the Prosecution feels that
24 there is anything envisaged by the Statute of the
25 Tribunal on the basis which it can charge me, let it do
1 so. If the Prosecution is concerned about Mr. Zaric's
2 defence, whether it will be of an appropriate quality,
3 I suggest that it leave that decision to Mr. Zaric
4 himself, who is certainly more interested in having a
5 fair and just trial in order to be acquitted of the
6 charges than the Prosecution is concerned.
7 If there were any indication of a conflict of
8 interest between me and my counsel, rest assured that I
9 myself would withdraw from this duty and I would not
10 need any warning on the part of the Court or the
11 Prosecution. I would do the same if I saw any conflict
12 of interest with any one of the accused. My duty as
13 counsel is to assist my client in the preparation of
14 his defence in accord a witness the rules and
15 regulations and in the interests of justice. I must
16 underline that I am the elected counsel of Mr. Zaric
17 and I think it is his basic right to choose his
18 counsel. No one has the right to deprive the defendant
19 of that right.
20 JUDGE BENNOUNA: (Interpretation) Excuse me.
21 We know that. You've already put that into writing,
22 that it was the right of the accused to choose his
24 Would I like to ask you whether you are
25 familiar with Rule 16 of the Code of Conduct for
1 counsel before the International Tribunal. That is on
2 the 10th of June, 1997, in Article 12 it says counsel
3 does not plead in a room which he would be called to
4 appear as a witness unless his testimony deals with a
5 point which is not being challenged or whether his
6 disqualification would cause for substantial prejudice
7 to his client.
8 The counsel, I repeat, does not argue in a
9 trial where he would probably be called to appear as a
11 The conflict, as Judge Robinson has recalled,
12 there was an answer given to this. There may be
13 a differentiation made about the interpretation of the
14 facts, that is different between you and the
15 Prosecutor. According to your writing, we saw that and
16 you don't have to repeat it to us, we are being
17 assure. But there are facts that you do recognise,
18 that you acknowledge, even though you analyse them
19 differently. It happens. That has been clearly
20 established before this Trial Chamber. And I said
21 clearly established that there may be a potential
22 conflict of interest insofar -- and the Prosecutor
23 developed this point in her request, that -- and in
24 detail, where at one point you may be called to trial
25 in order to testify, because as you acknowledge
1 yourself, you were involved in the facts and in the
2 events in question in this case.
3 It is understood that if you are called to
4 testify, you will find yourself in a situation which
5 you yourself either under review, or re-examination, or
6 cross-examination, or direct-examination you may put
7 yourself into a very uncomfortable position since you
8 will have to speak and answer questions about events
9 that you were a part of yourself.
10 This is what the Tribunal would hope to
11 avoid. Therefore, we would like to avoid this type of
12 situation, and it would be better for it to be settled
13 right now in the interests of the accused. Of course,
14 it would be better that it be settled now than later,
15 once we have begun the trial. It would be better than
16 the question of a conflict of interest, and you
17 understand what I'm saying, be settled before the trial
18 begins, and that is at the time of the trial.
19 Therefore, I hope that you are aware of
20 this. You do know also that the Code which I have just
21 cited, the Code of professional ethics, which is a
22 basic document for us, states that the counsel, in
23 paragraph 4 of the preamble, may be the subject of
24 disciplinary measures provided in Article 47 of the
25 Rules of Procedure and Evidence, of Rule 47, rather.
1 This Rule 46, we don't want to get to that point
2 either, and states that a Trial Chamber may, after a
3 warning, refuse audience to counsel if in its opinion
4 the conduct of that counsel is offensive, abusive or
5 otherwise obstructs the proper conduct of the
7 This is the status of the question. There is
8 not an immediate conflict, because as Judge Robinson
9 said, we have yet gotten into the facts. But there is
10 a potential conflict which is for sure -- even this is
11 being challenged because it is none the less true that
12 you were a participating party in some of the events.
13 Therefore, I would like to ask whether you are aware of
14 this, aware of the interests of the accused, and if you
15 do not believe that it would be time to take the
16 initiative yourself to disqualify yourself in order to
17 avoid a real conflict of interest and this, of course,
18 is in the interests of the proper conduct of the
19 proceedings and the interests of justice. Thank very
21 I would like you to answer my questions
22 please and to my proposal as well, because I am making
23 a proposal to you. I'm asking you to take the
24 initiative yourself.
25 MR. PISAREVIC: (Interpretation) Thank you
1 Your Honour, and for your remarks and warnings which I
2 have understood fully. However, I cannot accept the
3 position that I am a participant in certain events in
4 which I happened to participate, by chance so to
5 speak. I would accept that if that fact was disputed.
6 However, that fact is not disputed, nor has the
7 truthfulness of that fact been called in question by
8 the statement of the accused or the statements of
9 witnesses already heard.
10 I'm fully conscious of the fact, and that is
11 something that I have already said, that if I were to
12 realise that there was a conflict of interest and that
13 my participation could harm the interests of my client,
14 I would withdraw myself, but bearing in mind the
15 reasons the Prosecution is referring to, Mr. Tihic,
16 Mr. Nalic, Mr. Bicic and Misic, I see absolutely no
17 disputed fact. I have studied the motions carefully, I
18 have studied the statements of the accused, I have
19 studied the statements of other witnesses and victims
20 and the other documents that have been disclosed to me,
21 and nowhere have I seen any reason why I should appear
22 as a witness. That is my position, and that is the
23 reason why I will not take any more of your time. I
24 will bear this in mind all the time. Should such a
25 case occur, such a situation occur, I will reconsider,
1 but for the moment I propose that this motion be
2 rejected. Thank you.
3 JUDGE BENNOUNA: (Interpretation)
4 Mr. Pisarevic [no interpretation]. Do you think that
5 you could be called as a witness at some point in this
6 trial either by the Prosecutor or by the accused, of
8 MR. PISAREVIC: (Interpretation) By Defence
9 counsel I will not be called. I see no reason why the
10 Prosecution would call me either.
11 JUDGE BENNOUNA: (Interpretation) Could you be
12 called by -- called as a witness by other accused?
13 MR. PISAREVIC: (Interpretation) You mean in
14 this case?
15 JUDGE BENNOUNA: (Interpretation) Yes.
16 MR. PISAREVIC: (Interpretation) No, I don't
17 think they will call me.
18 JUDGE BENNOUNA: (Interpretation) Thank you,
19 Mr. Pisarevic.
20 MR. PISAREVIC: (Interpretation) Thank you,
21 Your Honour.
22 JUDGE BENNOUNA: (Interpretation) Could we
23 have the representative for the Prosecutor again,
24 please, Ms. MacFadyen. You heard the question that I
25 asked in respect of Article 16. Do you think that
1 Mr. Pisarevic might be called as a witness in this
3 MS. MacFADYEN: Your Honour, I believe in
4 fact as I have indicated before my previous arguments
5 that in fact at this point no one can indicate that
6 they intend to call Mr. Pisarevic as a witness.
7 However, I can see a likelihood, especially from what
8 Mr. Pisarevic has described regarding his knowledge of
9 these events, that he will be a necessary witness with
10 respect to some events. For instance, the Omer Nalic
11 event, where indeed he signed a power of attorney with
12 respect to Omer Nalic, who will testify, and this goes
13 to his credibility, that he was forced to sign a
14 confession by Mr. Zaric. Mr. Pisarevic has indicated
15 that he did not appear for Mr. Nalic, and yet there is
16 a power of attorney signed. So there is an issue
17 before the Court as to what he saw, whether he ever saw
18 this confession or whether he didn't.
19 I would suggest that that issue goes to the
20 credibility of Mr. Nalic and everything that he will
21 say as a witness.
22 Also the fact that Mr. Pisarevic has
23 indicated that he does not recognise any possibility
24 for him being called as a witness either direct, or
25 cross-examination, or as a rebuttal witness indicates
1 that he does not understand the conflict. The conflict
2 is simply that he has personal knowledge of disputed
4 JUDGE BENNOUNA: (Interpretation)
5 Mr. Pisarevic, have you got anything you'd like to
7 MR. PISAREVIC: (Interpretation) All I can
8 say additionally is that all the points made by the
9 Prosecution have no bearing on these proceedings,
10 whether and why I went to see Mr. Nalic, this is not a
11 subject of trial. This matter can be investigated when
12 I'm brought to trial, but this fact has nothing to do
13 with the case that I am participating in as Defence
14 counsel. All these allegations are mere insinuations,
15 and the aim is to eliminate me from the Defence because
16 I'm a person who lived there, who, it is true, is quite
17 familiar with those people there, the people know him,
18 I am aware of the conditions under which the people are
19 living there, which is quite normal. I spend the whole
20 period there.
21 Maybe the aim of the Prosecution is to
22 eliminate all the attorneys who were in that area in
23 Republika Srpska and who participated in a sense in
24 that armed conflict, but I think that better assistance
25 and more qualified defence cannot be provided to these
1 accused than by the people who were there present, of
2 course, with the assistance of other colleagues.
3 I really think that there is no conflict of
4 interest, but I suggest that you hear perhaps my client
5 and the other accused on the matter, and if you
6 consider it proper then you make the decision to
7 eliminate me.
8 JUDGE BENNOUNA: (Interpretation) We have
9 heard in detail full this whole question of the
10 conflict of interest through the submissions and
11 through the presentations this morning. I have told
12 you of the Trial Chamber's concerns. I have given you
13 an oral warning.
14 The Trial Chamber will take the time to
15 deliberate the issue. You will do so in writing, and
16 if necessary, you will also ask that the accused take a
17 position himself, or themselves. It is now 11.30,
18 almost 11.30. We're going to suspend the hearing to
19 allow the interpreters, whom I would like to thank, by
20 the way, for their co-operation. We're going to take a
21 half hour break as we ordinarily do, and the Trial
22 Chamber will resume at noon, in the order that I've
23 already announced, that is the motion on judicial
24 notice of the character of the conflict and then
25 judicial notice of adjudicated facts. This will be
1 done after the break, that is at noon. The Court
2 stands adjourned.
3 --- Recess taken at 11.30 a.m.
4 --- Upon resuming at 12:00 p.m.
5 JUDGE BENNOUNA: (Interpretation) As I said at
6 the end of the first part of the morning's work, we're
7 resuming the hearing, and I will give the floor
8 immediately to the representative of the Office of the
9 Prosecutor to speak to us about their position on
10 judicial notice of the international character of the
11 conflict in Bosnia and Herzegovina and on established
13 The floor is yours.
14 MS. PATERSON: Thank you, Mr. President.
15 If I could just make one brief statement
16 before I begin my argument, as you will notice, I have
17 switched places with my colleague because the physical
18 arrangement of this courtroom makes it extremely
19 difficult for the person sitting in this chair to see
20 both Judge Robinson and to see Mr. Zaric, one of the
21 defendants, because the view is blocked by the column.
22 I asked the Court officers if they could move Mr. Zaric
23 to the other seat there so that he and I could see each
24 other, and I was informed that they could not, for
25 security reasons.
1 So that I could see Your Honours and
2 Mr. Zaric, I have moved to this location. And if there
3 is any possibility in the future to setting up the
4 courtroom in a somewhat different physical manner, it
5 would be of great assistance to the Prosecution. Thank
7 JUDGE BENNOUNA: (Interpretation) Thank you
8 very much. Please proceed.
9 MS. PATERSON: Mr. President, taking in mind
10 your admonitions to keep our comments brief and to
11 attempt not to repeat anything in our written
12 submissions, I will attempt as best as possible to do
13 that. And as you noted, it is possible to essentially
14 argue both of our motions concerning adjudicated facts
15 together, so I will attempt as much as possible to
16 combine my two arguments.
17 In our motion concerning the judicial notice
18 of the international nature of the armed conflict, what
19 we have asked to court to do is take judicial notice of
20 the fact that between the 6th of March 1992 and the
21 19th of May, 1992, it has been determined by this Court
22 and it is a historical fact of common knowledge that
23 the nature of the conflict during that period was one
24 of an international nature. There was an international
25 conflict at least until the 19th of May. It is the
1 position of the prosecutors's office that there was an
2 international conflict throughout the entire war in
3 Bosnia and the rest of the former Yugoslavia.
4 However, we concede that the period after the
5 19th of May is more complicated and is in dispute in
6 other cases before this Tribunal. Therefore we have
7 tried to be reasonable and ask the Court to simply
8 focus on that period between the 6th of March and the
9 19th of May, when we contend it is not in dispute that
10 it was an international armed conflict.
11 As Your Honours know, under Rule 94 of the
12 Rules of Procedure and Evidence, the Court has the
13 authority to take judicial notice. There are two
14 provisions, two subrules to that: There is subrule
15 "A", which deals with facts of common knowledge, and
16 there's subrule "B", which deals with adjudicated facts
17 from other proceedings before the Tribunal.
18 It's our contention that Your Honours can
19 find this to be an adjudicated fact -- that you can
20 take judicial notice of this under either of those
21 provisions. You can either find that this is a
22 historical fact of common knowledge, or in the
23 alternative, you could rule that this is an adjudicated
24 fact that has already been determined in other
25 proceedings before the Tribunal.
1 We would note that the theory behind judicial
2 notice is that of judicial economy as a way to --
3 THE INTERPRETER: Counsel, slow down,
5 MS. PATERSON: We would note that the theory
6 behind judicial notice is one of judicial economy; that
7 one of the purposes for the rule is to expedite the
8 proceedings so that the Court does not have to hear
9 evidence of facts of common knowledge or facts that
10 have already been determined by another court of law.
11 We would note that if we are forced to produce evidence
12 concerning the international nature of the conflict, it
13 would require calling a large number of witnesses, a
14 number of experts and that in essence this Court would
15 hear evidence which it has already heard in previous
16 cases, and may hear multiple times during to course of
17 the Tribunal.
18 We would note that the Defence itself
19 concedes in their response to our motion that the
20 concept of judicial notice is useful to expedite the
21 hearing of a case and to produce uniformity of
22 decisions in certain matters. There can perhaps be no
23 more important matter before this Tribunal than
24 determining the nature of the conflict, since this is
25 an international Tribunal created by an international
1 agency the United Nations, which was designed to deal
2 with an international conflict. Therefore we think
3 that this is a particularly significant fact that must
4 be determined once and for all by this Court. We would
5 also note that part of the reason we have brought this
6 notion at that time is in response to encouragement
7 that was given to us --
8 THE INTERPRETER: Could the counsel please
9 slow down for the benefits of the interpreters. Thank
11 MS. PATERSON: I would attempt to slow down
12 Your Honour as I have been instructed, I would ask the
13 interpreters to appreciate that I need to make my
14 arguments in my own fashion. So, I will do the best I
16 I would note that in an earlier Status
17 Conference Judge Rodrigues encouraged us to take
18 advantage of all the different provisions in the Rules
19 of Procedure and Evidence as a means of expediting the
20 trial. I think we are all in agreement that the trials
21 before this Tribunal have taken a long period of time.
22 We are all of the opinion that it would be in the best
23 interests of all the parties to try and expedite these
24 cases and we feel that this is a means for doing so.
25 Getting down to our arguments concerning
1 whether this is a fact of common knowledge or an
2 adjudicated fact, we would contend that the
3 international nature of the conflicts is clearly a
4 historical fact that is no longer open to dispute. As
5 I stated earlier we must remember the special mandate
6 of the Tribunal. We are an international Tribunal
7 established by an international organisation to resolve
8 an international conflicts. The limited jurisdiction
9 that this Tribunal has means that by necessity, all of
10 the cases coming before it will deal exclusively with
11 the facts related to the war in the former Yugoslavia.
12 And in every single case facts and evidence will have
13 to be presented about the nature of the conflict,
14 unless the Court takes judicial notice.
15 We believe that the fact that this was an
16 international conflict is a historical fact, much as it
17 can be stated that, for example, there was a war fought
18 by the United States in Vietnam in the 1960s and 70s.
19 That's a fact that's no longer in historical dispute,
20 everyone agrees that that happened and we would contend
21 that that is the type of fact that could be seen as a
22 fact of common knowledge. We could say that thousands
23 of people unfortunately died here in Holland during
24 World War II. I think that is a fact that would be
25 agreed as a fact of common knowledge, requires no
1 further proof. Like those historical facts we contend
2 that the fact that Bosnia and Herzegovina declared its
3 independence on the 6th of March, 1992, is a fact that
4 is no longer in dispute, that's a historical fact. And
5 we also condenied that the fact that there was an armed
6 conflict going on in Bosnia in which the JNA, the
7 Yugoslav National Army, which was the army of the
8 socialist Federal Republic of Yugoslavia, another
9 country, was involved in that war. We believe those
10 facts together show that this was an international
12 If Your Honours are not willing to see this
13 as a historical fact that you can take notice of as a
14 fact of common knowledge, we would argue that you can
15 take notice of this because it's an adjudicated fact
16 that has already been adjudicated before other
17 proceedings of the Tribunal. As Your Honours are
18 aware, the Tadic case and the Celebici case have
19 beenconcluded; they have rendered their verdicts. And
20 while we acknowledge that both of those cases are on
21 appeal, it is our contention that this fact is one that
22 is not being appealed, and therefore any decisions that
23 have been made by those courts are final decisions as
24 to this particular fact, making it an adjudicated
1 I would just remind you that the both the
2 Tadic and Celebici cases in their written decisions
3 have found that at least from the period of the 6th of
4 March, 1992, until the 19th of May, 1992, this was an
5 international conflict. In the decision on the Defence
6 motion for interlocutory appeal in the Tadic case, the
7 Appeals Chamber of this Tribunal has also found that
8 that was an international conflict, citing both the
9 date of independence of Bosnia and Herzegovina as well
10 as the involvement of the Yugoslav National Army. In
11 both the final opinions and judgements in the Tadic case
12 and the Celebici cases, they too stated that they had
13 found that at least from the 6th of March 1992 until
14 the 19th of May, there was an international conflict
15 ongoing in Bosnia.
16 And finally, the Appeals Chamber in the
17 Defence motion for interlocutory appeal in the Tadic
18 case also found that the conflict was international in
19 nature, at least until the 19th of May, 1992. We have
20 also noted that similar decisions were reached in the
21 Rule 61 hearings before this Tribunal. Now, we
22 acknowledge that Rule 61 proceedings are not full-blown
23 trials and that an argument could be made that those
24 facts are not adjudicated facts.
25 That being said, however, we do think that
1 the decisions of those Rule 61 courts can nonetheless
2 be looked at as corroborating evidence, as further
3 evidence that there is a unanimous consensus among the
4 Trial Chambers of this Tribunal that this fact is in
5 fact a determined, undisputable fact. I would note, in
6 the decision of the Karadzic/Mladic Rule 61 hearing, it
7 was stated that the Trial Chamber considers that at the
8 time it began in Bosnia and Herzegovina, the present
9 conflict was international in character insofar as it
10 involved two distinct states, the Republic of Bosnia
11 and Herzegovina and the SFRY, later the FRY.
12 As we noted in our written motion, three
13 different foreign courts have also come to the same
14 conclusion, that this was an international conflict.
15 Two courts in Germany and a military tribunal in
16 Switzerland have found that during the period of time
17 we are asking, from March until May, that it was an
18 international conflict.
19 And finally I would note that Judge May, who
20 unfortunately is not present today himself, has taken
21 judicial notice of the fact that Bosnia and Herzegovina
22 declared its independence from the Socialist Federated
23 Republic of Yugoslavia on the 3rd of March, 1992, and
24 that was in the Kovacevic decision of 12 May, 1998.
25 And further, Judge May took judicial notice of the fact
1 that the independence of Bosnia and Herzegovina as a
2 state was recognised by the European commission on
3 6 April 1992, and by the United States on 7 April
4 1992. Having recognised the independence of Bosnia and
5 Herzegovina, that was one of the most important points
6 in establishing the international nature of the
8 As I said, the Defence has made several
9 arguments against the Court finding this to be an
10 adjudicated fact. But I would simply note that we take
11 some exception to the argument made by the Defence
12 citing that we should be using rule 73 bis instead of
13 Rule 94, adjudicated facts, to deal with issues of this
14 sort. Rule 73 bis deals with the Pre-Trial conference
15 in which the parties are asked to submit agreed-upon
16 facts and facts in matters that are not in dispute.
17 While we certainly intend to fully use that option, and
18 will submit to the Court many facts that we hope the
19 Defence will stipulate to, I must note that
20 Mr. Pantelic stated to us on an earlier occasion that
21 the only thing he would stipulate to was his client's
22 date of birth. And it was partly because of that
23 statement that we did not have much confidence that we
24 could approach the Defence and work out an agreement
25 ahead of time concerning this matter.
1 I would just note that as has been ruled in
2 the previous decisions I've cited to, it's important to
3 look to the definition of an international conflict,
4 the Geneva Conventions. The Geneva Conventions in
5 Article 2 explains what they consider to be the
6 definition of international conflict, and I will not
7 repeat that for you; I'm sure you've read that in our
9 The ICRC commentary also takes a very broad
10 view of the definition of international armed conflict,
11 and I would note that that ICRC commentary has been
12 cited by both the Tadic and Celebici chambers in their
13 decisions on the matter.
14 I would also like to note that the Swiss
15 government has also back-dated the accession of Bosnia
16 and Herzegovina to the Geneva Conventions to 6 March
17 1992: Again, more evidence that that is a significant
18 date at the point at which an international conflict
19 can be concluded.
20 It's our contention that the character of the
21 conflict being that it was international between March
22 and May 1992 is indisputable. We contend that the
23 Defence would not be able to come before this Court and
24 present any evidence to the contrary. We believe that
25 it is in the interests of judicial economy to find this
1 fact now, so that we do not have to present a large
2 number of witnesses and an extraordinary amount of
3 documentary evidence, evidence that this chamber may
4 not have itself heard but certainly other chambers have
5 heard, and would have to be repeated over and over and
6 over again in the future in all trials before the
7 Tribunal if it is not decided at this point in time.
8 So it's our contention that fact of the
9 international nature of the conflict is indisputable
10 and should be judicially noticed either as a fact of
11 common knowledge or as an adjudicated fact.
12 As to our second motion, concerning the list
13 of 170 facts which we have asked the Court to take
14 judicial notice of, we believe that the same arguments
15 can be made: That the Court can take judicial notice
16 under either 94(A), that these are facts of common
17 knowledge, we would contend that all of them can be
18 classified as historical facts, or we would argue that
19 you can also find that these are adjudicated facts that
20 have been previously determined by other chambers in
21 the Tribunal. Every one of the facts that we have
22 listed in that list of 170 facts we have taken from the
23 written decisions of the Tadic and the Celebici cases.
24 Both of those cases have come to verdict, and final
25 decisions have been issued. Again I would acknowledge
1 that both of those cases are on appeal, but it's our
2 contention that the facts that we are asking you to
3 notice are not being appealed; they are not the source
4 of the appeal. Therefore, as to them, the decision is
5 final, and they can be seen as adjudicated facts.
6 I will not again repeat the arguments I have
7 just made concerning the powers to take judicial
8 notice. I would just like to, in addressing those
9 particular facts, move the Court's attention
10 specifically to facts 159 to 170 in our motion. Those
11 are the ones that deal with an armed conflict.
12 As I have just argued, we believe that there
13 is irrefutable evidence that there was an international
14 armed conflict ongoing in Bosnia and Herzegovina from
15 at least March to May 1992, and therefore it follows
16 that we also contend that there was an armed conflict,
17 whether or not it was international or internal in
18 character. Again I would note that not only the Tadic
19 and Celebici chambers have found that to be true, but
20 in the Furundzija case, which has also gone to verdict,
21 they have found that there was an armed conflict
22 ongoing in Bosnia and Herzegovina during the time
23 periods that we are asking the Court to take judicial
25 As with the nature of the international
1 conflict, we contend that this fact is irrefutable,
2 that the Defence cannot bring any evidence before this
3 Court that will change that determination. And we
4 would ask the Court specifically to take judicial
5 notice of those facts of armed conflict. We would go
6 on, however, to point out that all of the rest of the
7 facts, numbers 1 to 158 listed in our annex, we
8 contend, are also either facts of common knowledge --
9 by that I would mean historical facts which courts can
10 ordinarily take notice of -- or we would contend that
11 they are adjudicated facts, since every one of them has
12 been addressed in written decisions and findings of at
13 least two, if not three, of the chambers before this
14 Tribunal. We believe that that constitutes adjudicated
16 So it's for those reasons, Your Honours, that
17 we have brought these motions before the Court today.
18 We feel that it is clearly in the interests of judicial
19 economy to resolve these matters now, not only to save
20 the time of the Court, but so that we can make a
21 determination of what witnesses we need to call and
22 what evidence we need to present. If the Court were to
23 judicially notice these facts, it would greatly shorten
24 the length of the trial, and we believe would serve not
25 only the interests of the Prosecution by the interests
1 of the Defence as well.
2 We would ask that Your Honours take
3 acknowledgement of the fact that has been already
4 mentioned by me on a couple of occasions, that being it
5 is indisputable that on the 6th of March, 1992, the
6 government of Bosnia and Herzegovina declared its
7 independence; it was internationally recognised in
8 April of 1992. There is no dispute before the chambers
9 of this Tribunal that the JNA, the military army of
10 another country, was involved in the conflict in Bosnia
11 and Herzegovina, and if this Court looks to the
12 definition under the Geneva Conventions, it will see
13 that that meets the definition of international armed
14 conflict. And we would respectfully ask this Court to
15 take notice of that fact, as well as the 170 other
16 facts that we have presented in our motion. Thank
18 JUDGE BENNOUNA: (Interpretation) Thank you,
19 Ms. Paterson. I note that for the Defence, there was a
20 response which I have before me, which was presented by
21 Defence counsel, Mr. Abramovic for Mr. Simic,
22 Mr. Pantelic and Mr. Saint Just for Mr. Tadic,
23 Mr. Brashic for Mr. Todorvic, and Mr. Pisarevic for
24 Mr. Zaric.
25 Who is going to speak on behalf of the
1 Defence in this hearing?
2 MR. BRASHICH: (No interpretation).
3 THE INTERPRETER: Microphone, please.
4 JUDGE BENNOUNA: (Interpretation)
5 Mr. Brashich.
6 MR. BRASHICH: Very briefly, with regard to
7 general issues, I will, and I believe that my brother,
8 Mr. Pantelic, will address specific issues. The Court
9 is being asked to interpret certain decisions of other
10 Trial Chambers that between the period of March 6,
11 1992, and May 19, 1992, there existed an international
12 conflict on the territory of Bosnia and Herzegovina.
13 The concept of an adjudicated fact is one where the
14 Court has rendered a decision, and it can be broken
15 down, at least in Anglo-Saxon jurisprudence, as one of
16 either collateral estoppel or res judicata. We have
17 the Tadic and we have the Celebici decisions. They
18 were made by other Trial Chambers. These defendants
19 were not party to those proceedings. These defence
20 attorneys did not proffer witnesses, documents, or most
21 importantly, interpretations of certain facts.
22 The Prosecutor, as an example, states that
23 there was a Vietnamese war. Well, being somewhat of a
24 historian, there was a conflict in Viet Nam. People
25 got killed. Napalm was used. Bombing of Laos and
1 Cambodia took place. Was it a war as defined by the
2 United States constitution? No.
3 So it is this specific issue of how you
4 interpret historical facts, that people were shooting
5 in Bosnia and Herzegovina; that the JNA, until March,
6 was on its own territory, and poof, by a piece of
7 paper, a purely local civil conflict, strife, is
8 changed into a different animal, with different
9 repercussions, different penalties, different rules.
10 Now, I was not counsel in the Celebici case.
11 I was not counsel in the Tadic case. I do not know
12 what was in the mind of Defence counsel there. I do
13 not know what was in the mind of the Trial Chamber.
14 You are an independent body, and you are an independent
15 finder of fact. I have a situation in the United
16 States District Court for the Southern District where
17 across one hallway, Judge Kaplan found a fact to be
18 totally different and have different applications than
19 Judge Koeltl across the hall, again dealing with the
20 disintegration of Yugoslavia. Judge Koeltl has found
21 that it was not a political issue that was before him.
22 Judge Kaplan found that it was a political issue before
23 him, and dismissed the case for lack of jurisdiction.
24 I think that the Defence has the right and
25 the obligation to independently have its own witnesses,
1 its own experts, interpret historical occurrences. I
2 must concur with Ms. Paterson with regard to the other
3 issue: The 168 -- at least that was in my motion
4 papers -- 168 facts. A lot of them are nondisputable.
5 However, the further we come to the present, the
6 further interpretations are necessary.
7 That the kingdom of the Serbs, Croats and
8 Slovenes was established in 1919, granted. That in
9 1929 that Kingdom changed its name to Yugoslavia,
11 When we get to the tail-end, the 158 to 168,
12 at least in the copy that I received by telefax, that
13 is subject to interpretation, and that is not a matter
14 that Defence can concede, as the earlier determinations
15 by other Chambers in which we were not parties cannot
16 be collateral estoppel to us or res judicata.
17 Final sentence: The concept of judicial
18 notice is that 1 pound one equals 2.2 kilograms, that
19 speed of light is, if memory serves me, some 360 odd
20 thousand miles per either second or minute. Those are
21 facts that the Court can take. The minute you have
22 interpretation, you need live witnesses, experts to
23 guide the Court and to make an independent determined
25 JUDGE BENNOUNA: (Interpretation) Judge
2 JUDGE ROBINSON: Mr. Brashich --
3 MR. BRASHICH: Yes, Your Honour.
4 JUDGE ROBINSON: -- I understand you to be
5 saying that judicial notice, certainly in the Anglo
6 Saxon system, is built on collateral estoppel and the
7 concept of res judicata, and you seem to be saying for
8 that reason your client has a right to an independent
9 determination of all issues of fact, but have you
10 addressed specifically Rule 94(B), which deals with a
11 particular species of judicial notice, and in that
12 provision judicial notice is, it seems to me, a term of
13 art. It is setting up its own peculiar system as to
14 what it is that the Trial Chamber may take judicial
15 notice of, and it says that the Chamber may take
16 judicial notice of adjudicated facts from other
17 proceedings of the Tribunal relating to matters at
18 issue in the current proceedings.
19 Is it your contention that in a situation
20 where that would ordinarily be applicable, that there
21 is still this right to an independent determination of
22 the facts at issue?
23 MR. BRASHICH: Your Honour, I am still
24 wrestling with the Rules. I used to teach trial
25 practice and procedure, but these Rules are new to me.
1 I think the only way I can answer, Your
2 Honour, is that both the Prosecutor and I view this as
3 a duality of issue. We have the issue of adjudicated
4 facts, and then we have the issue of common knowledge.
5 The common knowledge is what I described in
6 the later part of my argument as being judicial notice
7 of the fact that a pound is 2.2 kilograms.
8 With regard to Your Honour's question as to
9 adjudicated fact, Rule 94(B) speaks about the ability
10 of the Court to extract from other decisions certain
11 facts which are not in question and to make them and
12 adopt them.
13 My argument to Your Honour is that both the
14 Celebici case and the Tadic case, if this Trial Chamber
15 was sitting as a District Court in New York, the
16 decision in the Tadic case and the Celebici case by
17 some Judge across the hall or downstairs would not be
18 binding on the United States District Court Judge. It
19 would be advisory only, and no further deference should
20 be given to a decision of a Trial Chamber of equal
21 stature as this Chamber. That is why I brought up the
22 concept that Judge Kaplan on floor 12 in the District
23 Court, and Judge Koeltl across the hall on floor 12 of
24 the District Court have two different opinions.
25 I think that this Court, as an independent
1 body, is charged with making its own independent
2 determinations as to interpretations of fact,
3 especially in the light of the -- I'm now being
4 redundant in using "fact" too many times, especially
5 due to the fact, again, that we were not party to those
6 proceedings. We did not have any input as to who the
7 Defence called, what theories they advanced or who the
8 Prosecution might have called in that case and who they
9 may call in this case.
10 So as an independent attorney in this case, I
11 urge the Court that it has to make, as to the crucial
12 issues with regard to the international nature of the
13 conflict of that period, its own independent
14 determination should it want to grant and afford the
15 Defence a proper hearing.
16 JUDGE ROBINSON: Mr. Brashich, just one or
17 two other matters.
18 MR. BRASHICH: Yes, Your Honour.
19 JUDGE ROBINSON: I understand your analysis
20 to be applicable to the situation where the facts of
21 which judicial notice is being taken, derived from a
22 decision of a court or a Chamber of coordinate
23 jurisdiction. I think you said the Trial Chamber.
24 MR. BRASHICH: Yes, Your Honour.
25 JUDGE ROBINSON: Would you have the same view
1 if the facts of which judicial notice are being taken
2 come from a decision of the Appeals Chamber?
3 MR. BRASHICH: In the United States, Your
4 Honour, totally different position with regard to a
5 decision in the -- in this International Criminal
6 Tribunal, I do not know that answer, Your Honour.
7 I would, if I had to argue, I would -- based
8 on my concept of law and jurisprudence, I think if the
9 Appeals Chamber had resolved the issue, I think it
10 would be binding upon you, sitting as a Trial Chamber
11 Judge, but that is an opinion, that is my wish that the
12 concept of law in which I work would be applicable to
13 this Tribunal.
14 JUDGE BENNOUNA: (Interpretation) Thank you,
15 Mr. Brashich. Thank you. Having reminded us this is
16 an International Tribunal, in fact, and that,
17 therefore, we take into account what takes place in
18 this or that legal system, but we only take notice of
19 that. We are an International Tribunal.
20 Thank you for having recalled the practice in
21 the United States, but not -- there is not only the
22 United States, there are other countries. This is an
23 International Tribunal. We take note of what takes
24 place in various places and the general principles of
25 International Law which guide us in the last analysis,
1 of course.
2 I will now give the floor, as you suggested,
3 to Mr. Pantelic to speak on behalf of the Defence about
4 the two motions, that is the international character of
5 the conflict and adjudicated facts, that is the two
6 motions that are being discussed right now.
7 Mr. Pantelic, you may proceed. Please
8 co-operate with us in respect of the time, thank you
9 very much.
10 MR. PANTELIC: Absolutely, Your Honour.
11 Thank you very much.
12 Our idea, three Defence counsels in this
13 case, is to submit some very general issues from two
14 major legal systems, Common Law and Civil Law. In our
15 internal agreements, we came to the conclusion that it
16 would be fully in accordance with the judicial economy,
17 and with the principles of submissions of the parties
18 in this case that my learned colleague, Mr. Brashich,
19 as he already gave his very good and fundamental
20 overview of Common Law system, then I would suggest
21 that my learned colleague from France, lawyer Saint
22 Just, will have the floor for maximum few minutes, five
23 minutes or ten minutes, with regard to the Civil Law
24 issues, general issues in general terms which may be
25 applicable to the practice of ICTY. And then with your
1 permission, I would make a few short and precise
2 references to some of the issues raised by the OTP, the
3 Prosecutor, and of course, related to our motions.
4 So in total, I think that we shall spend not
5 more than 15 or 20 minutes, having in mind that very
6 important issue which we are discussing now, various
7 angle of view. I kindly ask for your attention at this
8 time. Thank you.
9 JUDGE BENNOUNA: (Interpretation) If I've
10 understood you correctly, Mr. Pantelic, you are
11 suggesting that, first, Mr. Saint Just take the floor
12 for a maximum of five minutes and then who would speak
13 directly afterwards, you yourself--
14 MR. PANTELIC: Yes.
15 JUDGE BENNOUNA: (Interpretation) -- for about
16 ten minutes. All right. Mr. Saint Just is going to
17 speak for five minutes and then you will follow for ten
18 minutes. Is that it? Yes.
19 MR. PANTELIC: Your Honour, you can
20 understand that --
21 JUDGE BENNOUNA: (Interpretation) No, please
22 understand. Well, it's true the question is important,
23 but we also have to take into account the needs of
24 time, and remember that we have the written submissions
25 before us. Let me remind you that we have these
1 submissions in writing and that we've read them
2 carefully, and, therefore, for judicial economy I ask
3 that you not repeat what is already presented in
4 writing. Mr. Saint Just, you may proceed.
5 MR. DE SAINT JUST: (Interpretation) Thank
6 you, Your Honour, I will be brief, but you know the
7 beneficial virtues of a public hearing with both
8 parties present. Of course, this is an extremely
9 important case, extremely important question, and we
10 have to look at the efforts made by the Prosecutor in
11 order to come to a favourable decision.
12 There are two or three points that struck me
13 in the Prosecutor's comments. First of all, it was her
14 will to achieve expeditiousness and judicial economy,
15 and I agree that justice may be expeditious but we must
16 not confuse haste and speed, and in all cases the
17 parties must be allowed to prepare a full defence.
18 The Prosecutor almost threw a challenge at us
19 by saying that she was sure that were the Defence to
20 have the chance to have the opportunity to plead as to
21 the international character the Defence could not prove
22 anything further. This was a kind of challenge which
23 you've thrown at us, and you want to tie our hands and
24 our feet by saying that I'm sure you will be able to
25 prove anything and that you would not have the right to
1 prove anything because we're going to refer this to
2 judicial notice.
3 But I, Your Honour, do not at all consider
4 that. According to the Rules of Procedure and
5 Evidence, you have the right to make that judicial
6 notice pursuant to Rules 94(A) and (B), but I don't
7 think you can do it in this case. Why do I say that?
8 What you are being asked --
9 JUDGE BENNOUNA: (Interpretation) You're
10 talking about the international character of the
11 conflict, of the first motion.
12 MR. SAINT JUST: (Interpretation) Yes, the
13 first motion.
14 JUDGE BENNOUNA: (Interpretation) Not the
16 MR. DE SAINT JUST: (Interpretation) Not the
17 second what we're asking is to accept the international
18 character of the conflict. That it's doing so is not
19 only accepting certain facts but to accepting the legal
20 conclusion drawn from those facts. You can very well
21 have -- make judicial notice of certain facts in
22 respect of judicial economy and speed. You can refer
23 to testimonies of witnesses or to documents that were
24 given in other cases, that would be possible, but in
25 respect of the legal consequences of the interpretation
1 and review of all the testimony, and all the arguments
2 and all the documents in respect of the international
3 character, you cannot make a judicial -- take judicial
5 What would that mean? It would mean that you
6 are prohibiting the Defence today, the defence of these
7 accused and these counsel who are here today,
8 prohibiting them from bringing in new testimony, new
9 arguments, new facts and new evaluations, and I believe
10 that this is completely unacceptable.
11 You can apply the Rule, but when it deals
12 with facts in the way we've just described and the
13 facts that the Prosecutor has raised, that's possible.
14 It's certainly not in respect of the international
15 character of the conflict itself. In that respect you
16 must give your opinion, your own opinion, you, a Trial
17 Chamber of this Tribunal, in respect of the
18 international character, after having allowed, of
19 course, the Defence to discuss and to make -- and to
20 bring in all of these elements in respect to its own
22 I believe that acting in that way would be
23 taking into account -- I'm not asking that you make --
24 take judicial notice of Roman Law or Civil Law, but to
25 take into account all these Rules, because you have
1 certainly, Your Honour, seen that in the response from
2 Mr. Pantelic, which was -- includes the work in things
3 that I did, having to do with judicial notice in my
4 country of France. I'm not going to repeat it today.
5 This was presented in writing.
6 But of course, you saw that in France this is
7 an extremely significant issue, a very exciting one
8 which goes back to the quarrels of the Acien regime,
9 which is still relevant today, and that case law and
10 authors have always expressed themselves extremely
11 firmly on this subject, and have said that in France,
12 judging through judicial notice, which was called the
13 reference method, that -- which is prohibited by the
14 Civil Code, and was also prohibited by the
15 constitutions of the French Revolution because these
16 were violations of the fundamental principles of law,
17 and violations of the principle of having both parties
18 present, and violations of an equitable trial which is
19 recognising that all international documents, including
20 the New York covenant, et cetera, et cetera, but, in
21 fact, it would be a -- it would be a miscarriage of
22 justice. This is what I believe.
23 There are certain facts, very simple ones,
24 which cannot be challenged, and of those you can take
25 judicial notice, but in respect of other facts
1 having -- coming to -- having to do with coming to the
2 conclusion as to the existence of an international
3 character in this conflict, you can only allow the
4 defence to have the right to discuss this issue.
5 The Defence will not delay the trial, will
6 not be obstructionist, it will do its work, and you
7 cannot prevent it from carrying out its rights and to
8 obtaining its rights and, I think, doing the --
9 anything else, and this, in fact, is where we reach a
10 very crucial question in this case. This is something
11 which you must really allow us to do, that is to
12 discuss this question of law.
13 Lastly, I will conclude by saying, Your
14 Honour, briefly, that in respect of the second motion
15 of the Prosecution having to do with this case and with
16 the question which you asked my colleague, I personally
17 believe that even if the Appeals Chamber were to take a
18 position in respect of the facts or legal consequences
19 requested by the Prosecutor, you, as an independent
20 Trial Chamber, would not be obligated to take that into
21 account, that in your judgement you could not say that
22 considering that the Appeals Court in other case ruled
23 that we, the Trial Chamber, must, therefore, rule in
24 that way. You could refer to it, of course, because
25 this would be an Appeals Chamber, but you would have no
1 obligation, in fact, to follow what they have said, and
2 that's what I believe firmly.
3 What the Prosecutor is asking you, and I'm
4 almost finished, since we are talking about ruling
5 about the international conflict -- character of the
6 conflict, in fact, this is taking away your freedom as
7 a Trial Chamber and in a sense not respecting your own
8 functioning, the grandeur and august nature of your
9 function. Remember that you are an International
10 Tribunal, something which has not been seen very
11 frequently before. In fact, the entire world is
12 watching you and your responsibility is very great.
13 And to say in your judgement that this issue of law was
14 already adjudicated, therefore we're not going to
15 re-judge it, I think that would be asking you to limit
16 your freedom completely and not to consider yourself as
17 a real court. Thank you.
18 JUDGE BENNOUNA: (Interpretation) Mr. Saint
19 Just, I would like to note something that you referred
20 to Rule 94, which has to do with the jurisdiction of
21 the Trial Chamber and say that you have to make a
22 distinction between the existence of a fact and the
23 legal conclusion to be drawn from that fact. I note
24 that there are facts and, in fact, we will see -- we
25 will consider this issue very seriously in our -- from
1 the depths of our conscience, and there is the
2 interpretation and the legal conclusion that should be
3 drawn from these facts. I will note this distinction
4 you have made.
5 Judge Robinson?
6 JUDGE ROBINSON: Mr. Saint Just, in your
7 submissions, I understood you to be saying that this
8 Trial Chamber would not necessarily be bound to take
9 judicial notice of a fact that has been adjudicated by
10 the Appeals Chamber. If that is so, are you then
11 saying that Rule 94(B) has no scope of application,
12 because what would be the scope of application for Rule
13 94(B) if the Trial Chamber cannot exercise the
14 discretion which is given to it under 94(B) to take
15 judicial notice of adjudicated facts not from another
16 Trial Chamber but from the Appeals Chamber.
17 I can understand the argument in relation to
18 another Trial Chamber which is a Chamber of coordinate
19 jurisdiction, but what then would be the scope of
20 application for 94(B) if the Trial Chamber is not
21 allowed to take judicial notice of adjudicated facts
22 from other proceedings of the Appeals Chamber?
23 Do you understand the question?
24 MR. DE SAINT JUST: Your Honour --
25 THE INTERPRETER: Microphone, please.
1 MR. DE SAINT JUST: Regarding the Appeals
2 Chamber judgement, today we know that the two decisions
3 referred to have still not been resolved by the Appeals
4 Chamber, therefore your argument doesn't hold. As for
5 the effect of a decision of an Appeals Chamber, it is
6 quite certain that if an Appeals Chamber, there is no
7 cassation Court here but the Appeals Chamber being the
8 final chamber, I think that you have to bear it in
9 mind, but I still consider that regarding the
10 interpretation and the legal consequences, it is still
11 up to you, that is the Trial Chamber, you still have
12 complete freedom to judge in one way or another. In
13 other words, Your Honours, I do not think that in your
14 decision, you can be satisfied by saying that the
15 Appeals Chamber has ruled in such-and-such a way. Of
16 course you can refer to it as one of your arguments,
17 but I think you're obliged to motivate yourself any
18 legal decision that you take yourself, and to provide
19 the motivation for it.
20 JUDGE BENNOUNA: (Interpretation) Thank you.
21 We are not here to judge relationships between the
22 Chamber and the Appeals Chamber. We have the statute,
23 and if an Appeals Chamber decides to revise a decision
24 or to send it back to the Trial Chamber, they have to
25 do accordingly. An Appeals Chamber is obliged to
1 harmonise the jurisprudence, and it goes without saying
2 that we have to take into account, but we are not
3 obliged textually to be bound by its decisions.
4 And this is something specific to this
5 International Tribunal. I now give the floor to
6 Mr. Pantelic, who is going to intervene as the last
7 speaker this morning on behalf of the Defence,
8 therefore for about ten minutes, to conclude the
9 response of the Defence regarding judicial notice and
10 regarding the international conflict and the
11 established facts.
12 MR. PANTELIC: After the very profound and
13 professional submissions of my learned colleague, I
14 could just take this possibility to have a short
15 overview of the mutual motions and response to the
16 motions and some other theoretical questions about the
17 judicial notice, collateral estoppel, res judicata, and
18 general terms which should be our guideline here in the
19 Tribunal; that's fairness of trial.
20 First of all, I have to note that the former
21 members of the Prosecutor bench, namely Justice Richard
22 Goldstone, former Prosecutor of ICTY, in his
23 submissions, the interlocutory appeal hearings for the
24 Tadic case a few years before, made some references to
25 very distinguished and learned colleague, His Honour
1 Judge Shahabuddeen, who at the same time made other
2 references to words of Sir -- I think it's Judge
3 Patrick Fitzmorris. So all persons in question stated
4 unanimously that use of doctrine of judicial notice, in
5 no matter which legal system, but especially in the
6 proceedings before international courts -- and this
7 Court is without a doubt, it's a fact of common
8 knowledge, is an international Court -- so the use of
9 this doctrine should be very conservative. Because in
10 proceedings before International Court of Justice where
11 the parties are governments, states, that's another
12 problem. But here, where the person is -- individual
13 is in question, there is no government, there is nobody
14 to cover him, to help him. And the role of the Court
15 is, according to the Rules, is to respect his right for
17 So in conclusion, use of judicial notice,
18 especially before ICTY and during our proceedings,
19 should be absolutely restrictive and conservative. In
20 our written motion -- I mean response to motion, to
21 these motions, we attached hundreds of pages of various
22 theoretical issues, more than 400 pages, about the
23 practice in the United States, Canada, Malaysia, Hong
24 Kong, Australia -- I mean, mainly in common law systems
25 as well as civil law. I don't want to make any
1 particular reference to that; everything is there.
2 His Honour Judge Robinson made, from my point
3 of view, very important reference to one issue on which
4 I would like to give some comments. The fact is that
5 if, for example, in Tadic or Celebici judgement, Appeals
6 Chamber will practically serve the same in general
7 terms, judgement in relation to the nature of conflict,
8 the question is: Is this decision or particular Trial
9 Chamber should be bound by this decision? My personal
10 position is in favour of this approach, but I have some
11 reserves to that, very factual.
12 Speaking about the Tadic proceedings, his
13 Defence counsel, a Dutchman, distinguished colleague,
14 Mr. Vladimirov, was not interested at all about these
15 general issues and questions. He stated that many
16 times. I know because I have some personal relations.
17 In Tadic case, furthermore --in Celebici case; sorry --
18 the Defence for the accused person consisted of Croat
19 and Muslim lawyers, including some other colleagues
20 from Canada, the States, et cetera. But the very issue
21 about the nature of conflict was also not so important
22 for this particular case. This case, Samac case, in
23 chronology of proceedings before ICTY, is the first
24 case where the Defence is in position to serve and to
25 submit some documents which were not at all
1 hypothetically even possible to be in possession of
2 either Defence counsels in other cases about this very
3 precise and very important issue, the nature of
4 conflict. Namely, about the involvement -- alleged
5 involvement -- of JNA, Yugoslav army, in operations in
7 Now, we are facing one procedural situation
8 here. I think that -- and my interpretation of Rule
9 94, subrule B, the words which I would like to refer
10 are "after hearing the parties, may decide to take
11 judicial notice." What does it mean, "after hearing
12 the parties"? It's not a simple situation that we
13 shall submit our arguments, the other party will hear
14 it, Trial Chamber will decide; no. In this -- well,
15 that's my interpretation; that's my approach. In this
16 particular situation, we have to have special hearing
17 about the fundamental issues, if one party will ask for
18 it. And I will tell you why we should hear, in terms
19 of judicial economy, have this special hearing.
20 Personally that would be injustice for me, and my
21 colleagues in this case, to be bound by the conclusions
22 of Appeal Chamber about the nature of conflicts,
23 because how someone can speak about the nature of
24 conflict without the presence of very important
25 evidence, documentation, at least one party in
1 question, and one party in question is former
2 Yugoslavia People's Army, JNA, do you think that
3 learned colleague from Holland and learned colleagues
4 from Bosnia and from Croatia could even think about the
5 possibility to take some other very, very confidential
6 documents from the archives of the headquarters of JNA,
7 and then put it before one Trial Chamber and discuss
8 about the possible nature of the conflict?
9 So we have to be very, very conservative
10 about this very nature, this moment. Because we didn't
11 see that before in other cases. Theoretically, you can
12 say "well, we have now a final decision in Tadic and
13 Celebici cases; we have to be bound by this general
14 issue." But Your Honour, just a second, please, I just
15 come to my point, please.
16 So we could say theoretically yes -- my
17 suggestion in terms of judicial economy, Your Honour,
18 that's my conclusion, is -- and this is a short
19 reference to some submissions of my learned colleague,
20 Ms. Paterson, I firmly believe that if you are speaking
21 about the Pre-Trial conferences in terms of rule 73
22 bis, it is not the means that we have to have one date
23 and one special hearing for all these things.
24 Pre-Trial period is a large period, I mean that's not
25 the question of day, that's a period. And I strongly
1 suggest this Trial Chamber to grant our proposal to
2 have special hearing with not more than two or three
3 expert witnesses.
4 JUDGE BENNOUNA: (Interpretation)
5 Mr. Pantelic, allow me to interrupt you. I'm
6 interrupting you to tell you the following: This is an
7 approach that I do not share, because you are referring
8 to another problem. The question that we are
9 addressing is the following: Judicial notice. We are
10 not going to redo the Tadic or the Celebici trials. We
11 are proceeding on the basis of a motion submitted by
12 the Office of the Prosecutor regarding the
13 international character of the conflict from
14 such-and-such a date until such-and-such a date. You
15 have expressed your standpoint in writing; if you have
16 additional elements to contribute, this is the occasion
17 to do so.
18 Secondly, regarding a certain number of facts
19 mentioned in another motion with appropriate numbers
20 that have been discussed a moment ago, clearly they go
21 up to 168. To hear the parties, that is not to present
22 evidence all over again. It is only to see whether we
23 can take judicial notice or not, and for what reasons.
24 That is all.
25 Therefore I disagree with you. We are not
1 going to have another hearing on these questions with
2 expert witnesses; that is not the problem. That is not
3 the question we are addressing; I'm sorry to tell you
4 that. You're outside the scope of the issue. The
5 issue is there is a motion, there is response of the
6 Defence that we have read, I have taken note of the
7 comments by Mr. Saint Just regarding the facts and the
8 interpretation of facts and the legal consequences of
9 those facts; I have taken note of his position. If you
10 have supplementary elements to contribute to that
11 question, the Trial Chamber is ready to give you a few
12 more minutes, after which we will adjourn.
13 MR. PANTELIC: Thank you, Your Honour.
14 Everything is in connection with this issue. I would
15 say, as I stated in my written submissions, I said that
16 there is no legal possibility to take judicial notice
17 about the term which is not a fact. Speaking about the
18 fact of independence of Bosnia, we cannot say that
19 that's a fact, because for one state to be independent
20 in the international public law terms, there are some
21 preconditions, and very easily we could challenge
23 I will now just bring your attention on
24 another fact which is very important, and finally we
25 will see why these facts are important for the
1 interests of the individual, my client. Because after
2 that, if we take without any critical approach this
3 fact, we could say well that's a fact, 6th of
4 March,'92, Bosnia was recognised as an independent
5 state. Ergo, JNA was there, ergo international
6 conflicts, ergo my client is in a problem because
7 application of Geneva Conventions under this factual
8 situation is completely different than if you are
9 speaking about civil war, and speaking about the
10 nature. So therefore I think it's premature to open
11 all these questions and to speak about all this. And
12 just give my opinion that we should need at least to
13 hear, I would say theoretically third party, all these
14 proceedings. We heard Croats, Muslims, finally lets
15 hear Serbs. Why not? About this very important
16 issue. I just stated why.
17 So by nature, judicial notice in this
18 particular case cannot be taken about the nature of
19 conflict, because it's a theoretical -- it's not fact;
20 it's a theoretical question, requesting very profound
21 expertise, which we don't see at the moment. In spite
22 of some findings in Tadic and Celebici case,
23 controversial, absolutely unfounded, a big error in
24 law. So if you need, Your Honour, some other
25 submission about the second motion, I can proceed, or
1 maybe I can do that after, about the second motion
2 40(P), concerning the list of facts and the nature of
3 these facts, et cetera.
4 JUDGE BENNOUNA: (Interpretation) I am going
5 to adjourn, because of the good cooperation of the
6 interpreters, whom I thank in passing. We will resume
7 at 2.30 sharp. We have heard you on the nature of the
8 conflict as well as your co-counsel, Mr. Saint Just; we
9 also heard Mr. Brassic. I think that the arguments of
10 the Defence have been amply developed regarding the
11 international character of the conflicts. I will give
12 the floor again when we resume work regarding the
13 second motion, that is taking judicial notice on
14 adjudicated facts. Mr. Brassic, you have something to
16 MR. BRASHICH: Your Honour I am under order
17 by Judge Turner of the United States District Court for
18 the Western District of Tennessee to be available by
19 telephone at 3.00 for approximately five minutes. I
20 was wondering if I could at 3.00, if I could ask for a
21 recess to take the call as to scheduling of a case in
22 Tennessee where I represent the defendant.
23 JUDGE BENNOUNA: (Interpretation) It is very
24 difficult for me to adjourn the hearing for -- you said
25 five minutes? Five minutes? I won't adjourn the
1 hearing, because you have a telephone appointment.
2 However, if you wish to leave the hall for five
3 minutes, you will ask permission of the Court. Thank
5 The hearing is adjourned.
6 --- Luncheon recess taken at 1.12 p.m.
1 --- On resuming at 2.30 p.m.
2 JUDGE BENNOUNA: (Interpretation) We can now
3 resume the hearing at the point where we left off this
4 morning. I give the floor to Mr. Pantelic, who should
5 speak about the issue of adjudicated facts and judicial
6 notice. That is our motion -- or another motion,
7 rather, because the Defence had already spoken about
8 the first motion having to do with the international
9 character of the conflict.
10 Mr. Pantelic, you may proceed. I request,
11 given the -- the magnitude of our work today, to keep
12 the time in mind when you present your arguments,
13 because many of the arguments have already been
14 submitted in written form.
15 MR. PANTELIC: I will follow your
17 First of all, before I start with my
18 submissions in regard to the second motion, officially
19 on behalf of all Defence counsels I would like to
20 officially ask from the Court to take my oral motion,
21 which is as follows: Defence respectfully ask for a
22 special hearing about the issue of -- nature of the
23 conflict, or if it's not granted, Defence would like to
24 offer and propose an offer of proof as following -- the
25 evidence as following, Defence would like to introduce
1 in these particular proceedings the following
2 evidences, an agreement by warring parties in BHA on
3 May 22nd, '92 with the presence of ICRC members. Then
4 strictly confidential internal documents from JNA
5 headquarters in Belgrade relating to the retreat
6 process in Bosnia in May '92, and other expert witness
7 opinions related to the International Public Law
8 issues, meaning of control of territory of Bosnia and
9 then all other relations between March and 19 May,
11 MR. BRASHICH: If I may, Your Honour.
12 THE INTERPRETER: Microphone, please.
13 JUDGE BENNOUNA: (Interpretation) Mr.
15 MR. BRASHICH: Just to clarify Mr. Pantelic's
16 statement, what the Defence offers at this present
17 time, should a request for an evidentiary hearing not
18 be granted as to the issue in motion number one, for
19 the record, we are making a formal offer of proof that
20 should such a hearing have been held, we would have
21 offered into evidence at that time an agreement between
22 the parties in conflict under the auspices and
23 sanctions of the International Committee for the Red
24 Cross in May 1992, which specifically found as to the
25 nature of the conflict at that time.
1 We are further prepared to offer in evidence
2 at such a hearing internal documents, beginning at
3 least March 1992, showing that the JNA was an army in
4 retreat, and that any actions taken by it were as a
5 defensive measure and not as measures taken as acts of
7 We would further offer at such a hearing,
8 should it be granted, expert testimony as to the nature
9 of the conflict. Should we have such a hearing, the
10 Defence is prepared to offer into evidence facts which
11 would show that the territory of Bosnia and
12 Herzegovina, at that time, was not controlled by a
13 central authority and that 70 to 73 per cent of the --
14 JUDGE BENNOUNA: (Interpretation) Mr.
15 Brashich, I regret having to interrupt you. I've
16 understood the motion, and I don't need any additional
17 arguments. We are not now getting into the very
18 essence of the subject, I've already said that this
19 morning. I am sorry that you're insisting on that
21 I believe that having told you that we must
22 remain within the scope of the subject. This is not
23 the trial. We are not now proving facts, nor are we
24 producing evidence in respect of any facts. This is
25 simply a Pre-Trial motion, and this motion requires
1 judicial notice.
2 I've understood the oral submission by
3 Mr. Pantelic. I've just heard it. I'm going to
4 consult with my colleague Judge Robinson for a few
5 moments. Thank you.
6 I will give the floor to the Office of the
7 Prosecutor, its representative, in order to express her
8 point of view on this oral motion which was just
9 presented by the Defence.
10 MS. PATERSON: Thank you, Mr. President. We
11 would oppose the request of the Defence, primarily
12 because they have made this request not in a timely
13 manner. They had sufficient opportunity up until the
14 end of the day yesterday to file any motions or
15 responses to our motions.
16 I believe that in essence this is essentially
17 what Mr. Brashich said in his response to our motion,
18 that if he was requesting an order for a hearing on the
19 facts, the motions submitted by the other three Defence
20 focused more on the issue of judicial notice than the
21 issue of such a hearing. Certainly they have been free
22 to make these documents available to the Court.
23 Obviously, it's up to the Court's discretion
24 if, under the circumstances, you want to accept the
25 documents. We have not seen the documents, I don't
1 know what the documents are that they're referring to,
2 so I'm not in a position to comment on their
4 Our position is simply that it's not timely,
5 and, as you point out, that's not really the issue
6 here. The issue is whether or not you can take
7 judicial notice. If you rule that you cannot or will
8 not take judicial notice, then we proceed to trial and
9 prove our case accordingly, and they will have
10 sufficient opportunity at that time to introduce this
12 MR. BRASHICH: Your Honour, this was just an
13 offer of proof.
14 JUDGE BENNOUNA: (Interpretation) Just a
15 moment, please, Mr. Brashich. I had not given you the
17 All right. Proceed, please. Tell us quickly
18 what it is that you want to say.
19 MR. BRASHICH: This is just an offer of
20 proof. It was not meaning that I was trying to argue
21 the case. I was just offering that should an event
22 have taken place, this is what we would have submitted
23 for the Court.
24 JUDGE BENNOUNA: (Interpretation) Yes, very
25 well. Very well. We have understood. We've
1 understood that if there is a hearing, you will bring
2 in documentary evidence, and I would also say that
3 you're speaking about a document dated 22 May, which is
4 well-known. It's known, and it does not fall within
5 the period that we're talking about because that period
6 stops on the 19th of May, but that doesn't matter.
7 Let me repeat to you, and this is something
8 which is agreed to in all legal systems, that it's not
9 a question of opening the trial now. This is the
10 Pre-Trial phase, and there is no question of opening
11 the door to proofs and counter-proofs in order to
12 establish evidence. This is not the right time. You
13 are in a position where you would know that, because
14 you are high-level counsel.
15 But the question is one of judicial notice.
16 That means either there are facts that are common
17 knowledge and the Trial Chamber will have to then so
18 state, or there are facts which were adjudicated and of
19 which we are taking notice for purposes of judicial
21 Once again, there is no need to go back to
22 the proof of this or that fact. You referred to, for
23 example, the independence which was proclaimed by
24 Bosnia and Herzegovina on the 6th of March. You said
25 that the independence was-- was that independence
1 proclaimed on the legal basis or not? That's not
2 judicial notice. Judicial notice is simply to know
3 whether there was a declaration proclamation. Was
4 there a proclamation or was there not? Do we have to
5 open up that question again? That is in respect of the
6 notion of the proclamation, not an evaluation of the
7 proclamation. I believe that your colleague said that
8 a little while back. You followed it and you said that
9 you would be able to save us some time in this
10 discussion. There is the fact, and there is the
11 conclusion and the evaluation, the interpretation of
12 the fact.
13 If the fact is established under legally
14 judiciously proper conditions in all legal systems, we
15 will take note of that. If it has not been
16 established, we will not take note of that. We cannot
17 decide that it was established, especially if what is
18 involved are controversial evidence as regards the
19 international character of the conflict.
20 There is a problem of classification of the
21 conflict. The Trial Chamber is aware of the importance
22 and the complexity of this issue, and it will
23 deliberate about that knowing fully what it is doing.
24 The last question on this point and then we
25 will end that part of the discussion, one of you, and a
1 representative of the Office of the Prosecutor, we
2 would like to know what you mean by "international
3 conflict." It's having been understood if you have a
4 rapid answer that you can give us. It's been
5 understood that we accept as an established fact that
6 there was an armed conflict in Bosnia and Herzegovina
7 in the period in question. Nobody would challenge
8 that. There was a conflict.
9 Now we have to know what you mean by
10 "international conflict." I would like to know, first
11 of all, what the position of the Prosecutor is and then
12 that of the Defence, and then we will put an end to our
13 discussion of that question. Ms. Paterson?
14 MS. PATERSON: Yes, Mr. President. The
15 definition of international armed conflict can be
16 determined from looking at Article 2 of the Geneva
17 Conventions. In that Article it states, "In addition
18 to the provisions which shall be implemented in
19 peacetime, the present convention shall apply to all
20 cases of declared war or of any other armed conflict
21 which may arise between two or more of the
22 hight-contracting parties even if the state of war is
23 not recognised by one of them. The conventions shall
24 also apply to all cases of partial or total occupation
25 of the territory of a high-contracting party even if
1 the said occupation meets with no armed resistance."
2 The ICRC commentary to that provision goes on
3 it state that, "Any difference arising between two
4 states and leading to the intervention of members of
5 the armed forces is an armed conflict within the
6 meaning of Article 2."
7 Obviously under the rules of the Geneva
8 Conventions for Article 2 to apply there must be an
9 international armed conflict. So it's our contention
10 that if you have an armed conflict between two or more
11 of the high-contracting parties, and Bosnia and
12 Herzegovina and the SFRY were both high-contracting
13 parties, then you have an international armed
15 JUDGE BENNOUNA: (Interpretation) Thank you,
16 Ms. Paterson. Defence counsel, who would like to speak
17 on that subject? Mr. Brashich?
18 MR. BRASHICH: I would point to the Court
19 that the United States had a war in 1860. It's still
20 called the Civil War.
21 MR. PANTELIC: Your Honour --
22 JUDGE BENNOUNA: (Interpretation)
23 Mr. Pantelic?
24 MR. PANTELIC: Your Honour, speaking in terms
25 of the high contracting parties in accordance with
1 Geneva Conventions means States. What are the
2 preconditions and prerequisites for one State to be
3 recognised as a State in international terms? To
4 control a territory, the 6th of March and 6th of April
5 and all other further months, around 70 per cent of
6 territory of Bosnia and Herzegovina was not under the
7 control of Muslim-dominated government in Sarajevo.
8 Without this condition, we cannot speak about the
9 state, ergo there are no high contracting parties, and
10 finally there is no application of Article 2 of Geneva
12 To find all this, to make a finding of all
13 this and finding the nexus between the armed forces of
14 one State involved in conflict and military operation
15 on the territory of another State, is the key issue;
16 whether JNA was a power in retreat or it was a power of
17 one State in act of aggression or occupation. All
18 these questions cannot be done between simple
19 discussion and simplification like this. We have to
20 hear well-known experts; we have to hear and to see,
21 more important, highly confidential documents from at
22 least one part in alleged conflict, which was not the
23 case before, here before, all proceedings. We have to
24 hear very shortly some experts on international public
1 Just for your reference, in Celebici case, we
2 heard expert Marie-Janine Calic speaking about
3 international character of conflict, only of 20 minutes
4 or half an hour. So in terms of judicial economy, we
5 could provide three experts speaking at least for 45
6 minutes specifically focused on these issues, and then
7 we could speak --
8 JUDGE BENNOUNA: (No interpretation).
9 THE INTERPRETER: Could we have the Judge put
10 the microphone on, please.
11 JUDGE BENNOUNA: (Interpretation)
12 Mr. Pantelic, you've gone back into expert testimony.
13 I'm asking for a specific answer you gave, an answer in
14 respect of what you consider to be an armed conflict.
15 Thank you very much.
16 As regards your oral motion relating to a
17 hearing in order to present evidence about the
18 international nature of the conflict, the Trial Chamber
19 cannot accept it, which means that we will deliberate
20 further to these oral submissions and exchanges between
21 the parties and we will take our decisions.
22 I will now ask you to speak about the second
23 motion, dealing with the establishment of facts; that
24 is, the judicial notice for establishing facts.
25 Mr. Pantelic, you may proceed.
1 MR. PANTELIC: As we stated in our response
2 filed yesterday, on Prosecutor's motion for judicial
3 notice or facts of common knowledge, firstly we have
4 to -- well, I have some questions for the Prosecutor
5 bench to explain: How we can consider initial motion
6 for facts of common knowledge? And then is this
7 another motion? The second motion is just an annex to
8 first motion introducing a new term called "adjudicated
9 facts," or we could speak in general about these two
10 motions with regard to one issue.
11 So I would kindly ask my colleagues from
12 Prosecutor bench to give me an answer so that I can
13 focus my discussion or my submission on this very
15 JUDGE BENNOUNA: (Interpretation)
16 Ms. Paterson?
17 MS. PATERSON: If you can just give me a
18 moment, Your Honour, to reread the transcript so I can
19 understand Mr. Pantelic's question.
20 MR. PANTELIC: Simply, Ms. Paterson, are we
21 speaking about two separate motions, or one, about one
22 issue, about facts of common knowledge?
23 MS. PATERSON: Well, as we -- as we explained
24 to the Court in our oral argument on this issue, we are
25 of the opinion that the Court can find either/or, that
1 both 94(A) or 94(B) can be applied to these facts.
2 It's our contention that they are all historical facts
3 which are widely accepted by scholars and historians
4 around the world. If the Court does not accept that
5 definition of the facts, then the Court can find them
6 adjudicated facts, because all of the facts listed are
7 facts that have been taken from the decisions of other
8 Trial Chambers before this Tribunal. All of these
9 facts were decided by the Tadic Court and by the
10 Celebici Court, and we would contend that as such, they
11 are adjudicated facts.
12 So that decision, basically, has to be made
13 by the Court, which way they want to classify the
14 fact. We believe they can be classified both ways. It
15 is up to the Court to decide which they think is more
17 JUDGE BENNOUNA: (Interpretation) Thank you,
18 Ms. Paterson.
19 Mr. Pantelic, I hope that you are going to
20 take up the subject, because this has been almost 45
21 minutes that you are turning around and around the
22 subject, and I will not allow that any further. You
23 have ten minutes to develop the question; ten minutes
24 to tell us what you think about it. Because you are
25 going around and around the subject.
1 MR. PANTELIC: My time is running; okay.
2 So first of all, we did not receive 170
3 paragraphs of OTP submissions. We only have, in total,
4 168. So discussion about this very important issue
5 might be very, very delicate, not knowing what is in
6 paragraph 169 and 170. Where the problem is, I don't
7 know --
8 JUDGE BENNOUNA: (Interpretation) Excuse me,
9 I'm asking you to speak of the 168 paragraphs, please.
10 MR. PANTELIC: But still, it's very important
11 to see in total -- maybe some other important relations
12 between the last two paragraphs might have influence,
13 you know, to maybe discussions about all other. But
14 Your Honour, I will proceed; that's probably a
15 technical question that can be easily resolved with
16 contacts with the registry.
17 So the Defence considers this list of -- I
18 would say hypothetically facts of common knowledge or
19 adjudicated facts -- as a proposal from the
20 Prosecutor's side, fully in accordance with Rule 73
21 bis, and we consider this annex as an admission or a
22 statement addressed from Prosecutor to the Defence. In
23 light of this, what I said, we are prepared, and we
24 finally state it in our response, that Defence
25 considers non-contested matters of fact as follows, and
1 there are in total I think 60 paragraphs.
2 In our annex 2, we consider the following
3 facts as disputed but non-negotiable; in total, around
4 12. And finally, in our third annex, this is a
5 statement of Defence, I should be very precise; it's
6 the statement only of counsels for Mr. Milan Simic and
7 Mr. Miroslav Tadic, because unfortunately Mr. Pisarevic
8 was provided by this material only yesterday evening.
9 And finally, we should hear our distinguished
10 colleague Brashich about these issues.
11 In third annex Defence states that we
12 recognise some disputed but negotiable matters of
13 fact. Speaking about these three annexes, and in light
14 and in spirit of cooperation, especially in the
15 interest of justice, and judicial economy, and our
16 clients, Defence is ready to, according to our relief
17 requested in our Defence, in our response, we are ready
18 in a further period to speak and to negotiate with the
19 OTP in order to maybe enlarge this number of facts
20 which could be undisputed between parties, and then we
21 shall have quite precise frame for our further
23 In conclusion, Defence considers all these
24 annexes and facts specifically addressed pursuant to
25 Rule 73 bis, and therefore our -- I would like to
1 underline this issue -- our, I would say, statement
2 that we consider some of the facts non-disputed, means
3 that I need another answer from the OTP bench: If, for
4 example, paragraph 56 or the other paragraphs in Tadic
5 judgement or Celebici judgement means that by admission
6 from the Defence side, for example, first paragraph,
7 about the historical issues, means automatically that
8 the Defence is admitted or ready to admit a paragraph
9 from Tadic judgement 56, because Your Honours, if we
10 are reading these paragraphs from Tadic and Celebici
11 judgements, these paragraphs are absolutely
12 controversial. There are many errors, factual
13 misfindings, and all these things. So I would like to
14 stress again, Defence, by admitting these 60 and 4
15 paragraphs, does not automatically admit that paragraphs
16 from initial judgement. I would like to make it very
17 clear. We admit only formulation from the annex to the
18 Prosecutor motion for adjudicated facts and facts of
19 common knowledge dated February 10th.
20 Thank you very much.
21 JUDGE BENNOUNA: (Interpretation) Thank you,
22 Mr. Pantelic. I will summarise, if you agree.
23 Ultimately you have gone back to what is
24 found in the written response. You make a distinction
25 between three categories, which are in the annexes,
1 that the list of facts which you considered as
2 undisputed. I have the text in English here. The
3 second part. You consider those to be disputed, but
4 non-negotiable, and the Trial Chamber will have to make
5 a ruling on that subject. And annex 3, which contains
6 a list of facts which the Defence considers to be
7 disputed but could be the subject of an agreement
8 between the parties.
9 Could I then conclude that you are going to
10 contact the Office of the Prosecutor to discuss the
11 third part, and that you will report back to us on the
12 conclusions that will have led to an agreement between
13 you and the Office of the Prosecutor.
14 MR. PANTELIC: Yes, Your Honour, that was our
15 idea, very precisely.
16 JUDGE BENNOUNA: (Interpretation) Thank you
17 very much.
18 That concludes our discussion of the second
19 motion dealing with the facts of taking judicial notice
20 on adjudicated facts.
21 Would somebody else like to speak to this
23 I will then move to the third motion and ask
24 the Office of the Prosecutor to speak about the fourth
25 motion for admission of evidence.
1 Ms. Paterson, are you going to speak?
2 MS. PATERSON: Yes, Mr. President. Today
3 seems to be my day to speak.
4 JUDGE BENNOUNA: (Interpretation) Please
6 MS. PATERSON: Yes. As to the motion
7 requesting admission of documentary evidence, we have
8 brought this to the Court's attention pursuant to
9 Rule 73 and 73 bis, 73 bis dealing with the Pre-Trial
10 conference. Now we acknowledge that in some ways this
11 could be seen as premature, but we have filed this
12 motion in the spirit of the request made to us by Judge
13 Rodrigues to try and resolve as many issues Pre-Trial
14 as possible. The annex of documents constitutes, quite
15 frankly, a majority of the documentary evidence that we
16 intend to introduce at trial although by no means all.
17 There are some additional documents that we may decide
18 to attempt to admit and obviously want to reserve the
19 right to do so at the appropriate time. However, in
20 the spirit of judicial economy, it was our hope that
21 these motions could be accepted into evidence
22 provisionally, with the understanding that we would
23 still be required at trial to authenticate the
24 documents and to establish their relevance, and the
25 Court obviously would rule at that time as to their
1 admissibility and the weight that the Court wants to
2 give the documents. But rather than taking the time
3 during the course of the trial to introduce such a
4 large number of documents one by one, we thought that
5 this was a way to expedite the proceedings.
6 While it would obviously take some time to
7 analyse all the documents, we acknowledge that there is
8 a large number of them; it's our contention that these
9 documents are all relevant to proving motive, intent,
10 knowledge, preparation and planning; that the documents
11 are certainly evidence that goes to support the charges
12 in the indictment, specifically the charges of
13 persecutions and deportations, that they are evidence
14 of the campaign of ethnic cleansing that we allege in
15 the indictment took place in Bosanski Samac and Odzak
16 municipalities as we have noted in our written motion
17 the vast majority of the documents were given to us by
18 officials of government agencies, including officials
19 of the government of Republika Srpska. Almost all of
20 the crisis staff documents that we are asking be
21 admitted were given to us by Mr. Mirko Lukic who is the
22 current mare of Bosanski Samac and was himself a member
23 of the crisis staff during the war. These documents
24 were given to us voluntarily; we did not have to
25 utilise search warrants or subpoenas. In addition the
1 documents relating to the Banja Luka military Court
2 were given to us voluntarily by those government
3 authorities, and in fact many of the documents were
4 also provided by the Defence counsel in this case, by
5 Mr. Pisarevic in particular. So while we realise this
6 may be a somewhat novel approach to this issue, we have
7 decided to at least put it before the Court in an
8 attempt to expedite the proceedings.
9 We are aware that our colleagues in the
10 Omarska case that is also before this Chamber have
11 filed a similar motion, and if Your Honours are willing
12 to accept this approach we think it's a way to expedite
13 the proceedings and move the case along to a trial.
14 Thank you.
15 JUDGE BENNOUNA: (Interpretation) Thank you,
16 Ms. Paterson, and thank you for being so concise, which
17 also refers to the written submission that we have
18 before us regarding the admission of documentary
19 evidence and which contains a table listing all those
20 documents, most of which, as you have said, have been
21 conveyed and disclosed to the Defence.
22 Who would like to speak on behalf of the
23 Defence regarding this motion? Mr. Pantelic?
24 MR. PANTELIC: Your Honour, we don't have any
25 particular objections to this motion, so you may
1 consider that we are absolutely agreed upon this way of
2 proceeding. Thank you.
3 JUDGE BENNOUNA: (Interpretation) Thank you.
4 Ms. Paterson?
5 MS. PATERSON: Just to make the record clear
6 Your Honour, the only documents on that list that had
7 not yet been disclosed to the Defence are the so-called
8 Banja Luka Military Court documents. I have them in
9 court today and we intend to provide them to Defence
10 before we leave the court today. So at the conclusion
11 of today's proceedings they will have copies of every
12 document on that list.
13 JUDGE BENNOUNA: (Interpretation) Thank you,
14 Ms. Paterson. The Chamber takes note of the fact that
15 all the documents will, at least by the end of the day,
16 all the documents listed will be disclosed to the
18 We have heard the parties on the four motions
19 submitted by the Prosecutor, the Office of the
20 Prosecutor, and I'm now going to pass on to the second
21 group of motions. Mr. Saint Just?
22 MR. DE SAINT JUST: (Interpretation) Mr.
23 President, excuse me, regarding the documents that are
24 going to be disclosed by the Prosecution, may I hope
25 that we will have them translated into French in a
1 relatively short delay.
2 JUDGE BENNOUNA: (Interpretation) Madam
4 MS. PATERSON: Mr. President, it's my
5 understanding that we are under no obligation to
6 translate these documents into French. They are all in
7 English and have also been translated into
8 Serbo-Croatian, but according to my reading of the
9 Rules we are not obligated to also translate them all
10 these documents into French, unless I'm misreading the
11 Rules of the Tribunal.
12 JUDGE BENNOUNA: (Interpretation) Thank you.
13 THE INTERPRETER: Microphone, Your Honour.
14 JUDGE BENNOUNA: (Interpretation)
15 Mr. Saint Just, after having studied this question at
16 some depth, it seems that there is a Rule for this type
17 of document in this stage, would have to be provided in
18 only one of the working languages. However, if there's
19 a document, a particular document that you would like
20 to have translated for particular reasons or because of
21 its importance, let the Registrar know and -- or,
22 rather, let the Chamber know and we will let the
23 Registrar know to have it translated.
24 This also applies to us, because we often
25 have to work in English even though our language is
1 French, and sometimes we need to request further
2 clarification. So that is the approach. Thank you,
3 Mr. De Saint Just.
4 I'm now going to -- the Chamber wishes now to
5 proceed with the motion submitted by the Defence, and
6 as I announced this morning, among all these motions,
7 most of them concern the accused Todorovic. There are
8 about 15 of them -- or 15 precisely, and I would
9 suggest in this case too that we group them according
10 to what they have in common. So we will begin with the
11 motion regarding evidence, and then we will go on to
12 hear the parties regarding the form of the indictment.
13 Then the first regarding evidence, we have
14 grouped five such motions, the motion for discovery --
15 I apologise for using the English words because I have
16 the text in English -- the production of material,
17 motion for production of witness statements, the motion
18 to exclude testimony from the accused, motion to
19 suppress identification, and the fifth, the motion to
20 strike and exclude testimony.
21 These are five motions which have to do with
22 evidence, and that is why we have put them in one
23 category. Therefore, if the Defence agrees, Mr.
24 Brashich, will you be so kind as to argue them in that
1 MR. BRASHICH: As to the characterisation,
2 and at least I think with regard to my end, this will
3 be a briefer exercise than before. Your Honour --
4 JUDGE BENNOUNA: (Interpretation) Thank you.
5 MR. BRASHICH: Initially one of the defences
6 to these motions, which I would like to lay to rest,
7 was the issue of untimeliness. The way I read the
8 scheduling order is that it had a particular date. My
9 understanding as to dates, it's not close of business,
10 it is 12.00.
11 My motions were timely filed before the end
12 of my working day. In any event, before 12.00 midnight
13 Hague time. And I will note that with regard to
14 responses, when I left at 5.00, which I believe is the
15 close of the working day of the court, there was
16 nothing in my locker, but when I arrived this morning
17 at 9.00 I had the responses from the Prosecutor.
18 My inquiry of the Registrar was that
19 apparently 8.00 was when they were received from the
21 Your Honour, these are very pro forma motions
22 which seek to flush out anything which might have been
23 omitted either by error or by omission by the
24 Prosecutor in fulfilling her responsibility under the
1 With regard to the motion for production of
2 discovery and exculpatory information, this is the
3 standard request made upon a Prosecutor that any
4 information contained in the Prosecutor's files should
5 be made available to the Defence.
6 I'm used to something which is called an open
7 file Prosecution where I can walk into the Prosecutor's
8 office and physically go through the Prosecutor's
9 file. I do not have that situation here, and,
10 therefore, I have requested with specificity documents
11 which I do not say exist, which I state might exist,
12 and if they do exist I wish to have them made available
13 to me.
14 I have read the Defence -- the Prosecution's
15 opposition to my omnibus application, and I have noted
16 that certain categories of information which I had
17 requested do not exist. They are withdrawn, Your
19 With regard to the ones that are not -- there
20 are some which are not applicable. I withdraw those
22 With regard to the compliance to certain
23 requests, there has been some compliance and the
24 answers note that there will be further compliance.
25 With regard to those, Your Honour, I would simply,
1 since there are no time limitations under the Rules,
2 reserve the right to move again in a timely fashion
3 prior to trial if compliance has not been had.
4 JUDGE BENNOUNA: (Interpretation) Thank you,
5 Mr. Brashich. If I understood you well, you have
6 already taken note of the fact that some of the
7 documents that you are asking for do not exist.
8 MR. BRASHICH: Well, in one example, in the
9 answer of the Prosecutor for a document which I had
10 requested, which is a statement of the defendant, the
11 Prosecution makes and warrants to the Court that no
12 statements were made by my client.
13 Now, I do know that when my client was
14 arrested that there were certain statements made, but
15 if the Prosecution states that there are no statements,
16 so be it. That is the kind of a situation which I was
17 referring to, Your Honour.
18 JUDGE BENNOUNA: (Interpretation) Mr.
19 Brashich, are there any specific documents outside the
20 fact that you reserve the right to intervene later on,
21 any specific document that you're requesting from the
22 Office of the Prosecutor?
23 MR. BRASHICH: I believe that some of the
24 documents which I had requested would fall within the
25 motion as to the arrest and detention of my client, and
1 I suppose with regard to those specific documents that
2 can be deferred to another day.
3 JUDGE BENNOUNA: (Interpretation) Very well.
4 Very well. That goes without saying, because you have
5 asked that these motions be discussed in the presence
6 of the whole Chamber. Perhaps we will be able to do
7 that tomorrow if Judge May is better. Therefore, for
8 the moment, as far as I understand, you have nothing to
10 Ms. Paterson, would you wish to comment on
11 this issue?
12 MS. PATERSON: Yes, Mr. President, if I could
13 first just clarify the record. The Prosecutor's office
14 filed all of its motions at 5.20 yesterday afternoon,
15 which is before the close of business which we have
16 been instructed is 5.30 Hague time. So I don't know
17 where Mr. Brashich got the information that we filed
18 them at 8.00 p.m., but they were filed at 5.20, which
19 we realise was at the end of the day but, nonetheless,
20 was within the necessary time.
21 As to this statement that Mr. Todorovic may
22 or may not have made at the time of his arrest, if such
23 a statement was made, it apparently was some sort of an
24 oral statement either to representatives of SFOR or
25 perhaps to an investigator of the Tribunal. No such
1 statement has ever been brought to our attention. I
2 certainly am not aware of any written statement made by
3 Mr. Todorovic.
4 As we've pointed out in our responses, on the
5 10th of February I had a discussion with Mr. Brashich
6 in which I expressed an interest on the part of our
7 office in speaking with Mr. Todorovic, and he said that
8 he would get back to me. So clearly we have not,
9 ourselves, taken a statement yet from Mr. Todorovic
10 that we have to disclose.
11 If Your Honours would like us to respond
12 orally to these basically what I see are nine motions,
13 if we do not count the severance and arrest motions --
14 JUDGE BENNOUNA: (Interpretation) No.
15 MS. PATERSON: -- we are prepared to do so,
16 but, frankly, I think that we can pretty much stand by
17 our written responses. We really have nothing of any
18 substance to add beyond what we've put in our written
20 JUDGE BENNOUNA: (Interpretation) Thank you.
21 For the moment we're dealing with the motion to compel
22 production of discovery and exculpatory information. I
23 think we have clarified the situation for the moment as
24 far as that is concerned, with the right of
25 Mr. Brashich to request documents when we come to the
1 motion on the arrest.
2 Therefore, Mr. Brashich, you have the floor
3 if you wish now to comment on the other motions that I
4 have cited a moment ago regarding evidence, the motion
5 that you submitted, motion for the production of
6 statements, motion to exclude testimony from the
7 accused, motion to suppress identification, and motion
8 to strike and exclude testimony.
9 MR. BRASHICH: Your Honour, with regard to
10 most of these motions, I agree with Ms. Paterson that
11 the written submissions are more than adequate, and I
12 think that the Court, in due course, can take care of
14 The two motions which I would like to address
15 orally is we have, during discovery, been given a great
16 number of witness statements. Now, the way that these
17 witness statements were prepared was with an
18 interpreter, an investigator and transcribed.
19 With regard to witness statements, what I had
20 asked was for an order directing the Prosecutor to give
21 us any written notes made by the investigator or the
22 person conducting the interview which were
23 contemporaneous with such interview.
24 I think that that is a fair subject for
25 exploration by the Defence during any
1 cross-examination, and that would flush out any
2 discrepancies between any written witness statements
3 and what actually was taking place during the
5 The only other motion that I would propose to
6 address the Court orally would be the motion to strike
7 the aliases from the indictment. I recognise that this
8 court and this Trial Chamber is a highly sophisticated,
9 and erudite and experienced Trial Chamber, and that it
10 can disregard --
11 JUDGE BENNOUNA: (Interpretation) Just a
12 moment, please, Mr. Brashich. I should like us to
13 finish first with the question of the motions
14 concerning evidence. Have you finished with that
16 MR. BRASHICH: -- any contemporaneous notes
17 taken by investigators or the persons interviewed of
18 the individuals with regard to the disclosed witness
20 JUDGE BENNOUNA: (Interpretation) Thank you,
21 Mr. Brashich. Ms. Paterson, do you wish to intervene
22 on this the matter?
23 MS. PATERSON: Just for the sake of
24 clarifying the record while we're all present,
25 Mr. Brashich has a misunderstanding of how we conduct
1 our interviews in the field.
2 As Your Honours can understand particularly
3 when we are interviewing witnesses in the former
4 Yugoslavia, and when we were interviewing witnesses
5 while the war was going on we were working under
6 difficult circumstances. Generally what we do is an
7 investigator sits down with a laptop computer, as best
8 they can they type the statement simultaneously while
9 it is being taken. They discuss it with the witness to
10 make sure that it's accurate. A final version is then
11 produced and read to the witness and signed and
12 confirmed by the witness.
13 For the most part of the investigators do not
14 take contemporaneous notes. They do not sit and take
15 handwritten notes and then type them. Usually they are
16 typing at the same time they are conducting the
17 interview. There are some exceptions to that, as to
18 investigators who are not fluent in English who take it
19 in their own language and then transfer it into English
20 for purposes of the statement, but it is the policy of
21 the OTP that all such notes, for confidentiality and
22 security reasons, since we are operating in the field,
23 all such notes and all notes that any interpreters may
24 take are shredded and destroyed and are not saved by
25 the Office of the Prosecutor. So to my knowledge,
1 there are no such contemporaneous notes to be
3 JUDGE BENNOUNA: (Interpretation) Thank you
4 for this clarification.
5 Mr. Brashich, do you wish to give us
6 additional information about the rest of the motions?
7 After all, you submitted 11. There are five concerning
8 evidence, then the two following ones on which I should
9 like to hear you, if you have anything to add having to
10 do with the form of the indictment. That is a motion
11 for a bill of particulars, and the motion that we have
12 already started discussing, to strike aliases attached
13 to the name, to strike the nicknames. These are two
14 motions regarding the indictment.
15 MR. BRASHICH: In regard to the bill of
16 particulars, Your Honour, as I alluded this morning, I
17 am still a novice with the Rules of this Court, even
18 though I have read them and keep rereading them.
19 Perhaps Ms. Paterson is correct that my motion for a
20 bill of particulars is premature, inasmuch as I had not
21 made a formal demand for the information sought by that
22 motion. If that be so, then I apologise to the Court,
23 and with regard to the bill of particulars, I will
24 withdraw it. I will make the appropriate demand upon
25 Ms. Paterson, and should she fail to comply, we'll be
1 back in front of you. For that taking up of the time
2 and with regard to my noncompliance with the Rules, I
4 With regard to the motion for aliases, I had
5 spoken that this chamber is experienced, sophisticated,
6 and may easily overlook the opprobrium which is
7 contained in the aliases. But just to seem -- not to
8 have the Chamber have what I think is an improper
9 reference to the defendant, who still is only the
10 accused, I would request that my application be
12 JUDGE BENNOUNA: (Interpretation) Thank you,
13 Mr. Brashich.
14 Ms. Paterson?
15 MS. PATERSON: Mr. President, the reason that
16 the aliases were put in the indictment at the outset of
17 the case was because those are the names by which the
18 defendant is referred to by many of our witnesses.
19 Some of them refer to him as Mr. Todorovic; some only
20 knew him by the nicknames that are listed there: Stiv,
21 Stevo, or Monstrum. Whether Mr. Brashich or
22 Mr. Todorovic like it or not, he was known by the
23 nickname of Monstrum, and many of our witnesses will
24 testify to that, that that is how they knew him.
25 Because under the circumstances that was the only, in
1 some cases, name that they could provide to us, it was
2 a name that we thought was appropriate to put in the
4 As we said in our motion, we have confidence
5 in this Court that they will not be swayed by any such
6 names in your determination of the facts of the case,
7 and we will be certainly glad to abide by the ruling of
8 the Court on this matter.
9 JUDGE BENNOUNA: (Interpretation) Thank you,
10 Ms. Paterson.
11 Judge Robinson?
12 I consulted with my colleague. As regards
13 firstly the clarifications that were made in the
14 indictment, that is, the motion for a bill of
15 particulars, I note what Mr. Brashich said; that is,
16 that the motion for the time being is not current, and
17 that we are waiting for clarifications from the Office
18 of the Prosecutor in due course. And therefore the
19 Trial Chamber requests that the Prosecutor, after
20 having contacted the Defence, see what clarification
21 should be added to the Pre-Trial stage.
22 As regards the nicknames, we do not think
23 that it is really necessary to put them into an
24 indictment. If the witnesses come and use nicknames,
25 they can always state that during testimony. Having
1 said that, obviously in no case can these nicknames
2 influence our judgement or our choices.
3 That is what we have to say about the two
4 motions dealing with the form of the indictment and the
5 issue of the nicknames. We now have remaining to us
6 the remaining motions, which you filed, Mr. Brashich.
7 There is a motion which you called "Motion for the OTP
8 to elect the theory of prosecution"; another which you
9 have called "Motion for an evidentiary hearing
10 regarding the nature of the conflict."
11 MR. BRASHICH: I believe --
12 JUDGE BENNOUNA: (Interpretation) I think that
13 that is no longer on our agenda for this afternoon,
14 since we settled that issue a while back. And another
15 motion, which you requested be left until a full bench
16 of Judges can deal with it: That is the severance of
17 the accused. And you were speaking for Mr. Todorovic.
18 Mr. Brashich.
19 THE INTERPRETER: Microphone, please.
20 MR. BRASHICH: I apologise, Your Honour.
21 With regard to the motion for an evidentiary
22 hearing as to the nature of the conflict, we've done
23 that. With regard to the motion to elect a theory, I
24 have read the response of the Prosecution; I now see
25 their theory, and in that -- as being "a continuing
1 course of conduct," and I'm putting that in quotes.
2 And I think that with regard to that issue, the papers
3 as submitted are more than adequate, and the Court will
4 decide whether or not the position taken by the
5 Prosecutor as to alternate theories is one which should
6 be allowed or denied.
7 And I believe I'm missing one of the motions
8 that the Court mentioned, and then -- after a while
9 they all seem to look alike, Your Honour.
10 The last one, Your Honour, I believe that the
11 Court mentioned --
12 JUDGE BENNOUNA: (Interpretation) Are you
13 looking for the motion to elect theory of prosecution?
14 MR. BRASHICH: Yes, I believe both of those
15 are different -- or the other side of the face with
16 regards to elect. So those two motions really should
17 be submitted as one.
18 MS. MacFADYEN: Your Honour, with respect to
19 the only issue that I believe my friend has indicated
20 is still outstanding, and that is the ability or not of
21 the Prosecutor to lay in the indictment alternative
22 charges, I would direct Your Honours to paragraph 14 in
23 the Prosecution's response to the elect theory or
24 dismiss motion, where it indicates that the Court --
25 Tribunal, sorry, and Prosecutor group in Blaskic found
1 that nothing prevents the Prosecutor from pleading an
2 alternative responsibility, Article 7 sub (1), or
3 Article 7 sub (3) of the statute, but the factual
4 allegations supporting either alternative must be
5 sufficiently precise so as to permit the accused to
6 prepare his defence on either or both alternatives.
7 The citation was from April 1997 in the
8 decision on the Defence motion to dismiss the
9 indictment based on defects in the form thereof. This
10 was in the Blaskic case.
11 I believe my friend has indicated that in
12 fact as a result of the -- possibly paragraph 7, 8, and
13 9 in the response to his motion, he is now able to tell
14 by reading the indictment, because it relates to how
15 the law is set out here, what actions Mr. Todorovic is
16 liable for individually, as a superior, or because he
17 participated in a group event.
18 JUDGE BENNOUNA: (Interpretation)
19 Mr. Brashich.
20 MR. BRASHICH: Since I've only received the
21 answers this morning, I am not familiar with the
22 Celebici decision on the motion, and I would stand on
23 my written request.
24 JUDGE BENNOUNA: (Interpretation) Thank you.
25 I think, Mr. Brashich, that we have heard a discussion
1 about all of the motions that you have filed.
2 MR. BRASHICH: Yes, Your Honour.
3 JUDGE BENNOUNA: (Interpretation) Thank you.
4 Does somebody else have anything to say about
5 the Defence motions?
6 MR. BRASHICH: With regard to the motions,
7 Your Honour? Or any --
8 JUDGE BENNOUNA: (Interpretation) Yes. No,
9 I'm talking about the motions.
10 MR. BRASHICH: No, Your Honour.
11 JUDGE BENNOUNA: (Interpretation) Very well.
12 I therefore consider that our Trial Chamber has heard
13 the pleadings about these motions except for two, and
14 that was at your request, and they will be reviewed,
15 hopefully, tomorrow afternoon. There is a session
16 which is scheduled in this Trial Chamber tomorrow at
17 2.00. And we hope that Judge May will be with us. If
18 not, we will meet anyway in order to reach a decision
19 on the agenda, the schedule for the remaining period.
20 And now I ask whether anyone has anything
21 else to add in general.
22 Mr. Brashich.
23 MR. BRASHICH: Yes, Your Honour, with regard
24 to the motion as to the conflict, Defence counsel
25 requested from the Registrar a joint conference where
1 all counsel would be present together with the
2 defendants so that the conflict could be discussed and
3 the conflict could also be made known to the accused.
4 When we got to the detention facilities, I
5 was apprised that the Registrar's Office was going to
6 tape the Defence conference, and that it was the -- the
7 Registrar was going to have an individual sit in to the
8 Defence conference. I'm well aware that by having a
9 joint Defence meeting waivers of attorney-client
10 privileges occur. However, I was appalled that the
11 Registrar had the temerity, or the affront, to tape a
12 conference amongst Defence attorneys and their counsel
13 on an issue that is joint. My request, Your Honour,
14 with regard to that, and this is a speaking motion,
15 that in the future, that there be any joint meetings of
16 Defence counsel and their clients, that the Registrar
17 be directed not to tape such a meeting, and not to have
18 an individual present.
19 My second request is that any tape and copies
20 of the meeting had Monday morning be destroyed, and
21 number three, an order to the Registrar asking whether
22 or not the tape of the Defence counsel was disclosed to
23 any third parties.
24 JUDGE BENNOUNA: (Interpretation) Thank you,
25 Mr. Brashich.
1 Mr. Pisarevic? Are you going to speak about
2 the same subject?
3 MR. PISAREVIC: (Interpretation) Your Honour,
4 I agree with what Mr. Brashich has said. I have one,
5 however, suggestion to make. Mr. Brashich mentioned
6 this meeting that we had, and we discussed the
7 conflicts of interest at that meeting. The conflicts
8 of interest which is being addressed here upon the
9 motion of the Prosecutor. I wish to suggest to the
10 Honourable Chamber that in view of the complexity of
11 the issue and the position of my client and the
12 situation he has found himself as a result of this,
13 that here before your Chamber all of the accused state
14 their position for the record, and state whether in
15 their opinion there is a potential conflict of
16 interest. And I think that we should use this
17 opportunity now. Thank you.
18 JUDGE BENNOUNA: (Interpretation) I'm going to
19 consult the Legal Officer and the representative of the
21 As regards Point 1, Mr. Brashich, having to
22 do with that meeting, I am learning from you about what
23 happened on during that joint meeting. Believe me,
24 I've just learned this as well. Therefore we are going
25 to stop for a few moments and going to take a 20-minute
1 break. The time necessary in order to hear the
2 representative of the Registry on that issue, because
3 you are informing us of a type of behaviour that we
4 must be aware of, and we will resume the session, shall
5 we say, at ten after 4.00; it's now about ten to 4.00,
6 we'll starts again in 20 minutes, at ten after 4.00.
7 As regards the seconds question that was
8 asked by Mr. Pisarevic, having to do with the conflict
9 of interest, you say that -- you ask whether these
10 accused cannot be asked whether they feel that there's
11 a conflict of interest. Listen, speak about that among
12 yourselves, Defence counsel with their accused, and
13 we'll go back to that issue tomorrow.
14 The Trial Chamber is prepared to hear the
15 accuseds' feeling on the question of a conflict of
16 interest. We might have a meeting tomorrow; that would
17 leave you the time to explain the question to the
18 accused -- and detail because the question is not a
19 simple one, so that they be well aware of the issue
20 before you come to speak before the Trial Chamber.
21 Therefore at 2.00 tomorrow, we will hear what they have
22 to say, and we will speak about the schedule, and I
23 hope that if Judge May's health permits us to do so, we
24 will deal with the pending motions. We will take a
25 20-minute break now -- just one moment, please.
1 There's no change. All right. It will be a
2 closed session and the minutes will be the same.
3 --- Recess taken at 3.42 p.m.
4 --- On resuming at 4.20 p.m.
5 (Closed session)
13 pages 457-468 redacted – closed session
18 --- Whereupon proceedings adjourned at
19 4:45 p.m., to be reconvened on
20 Thursday, the 4th day of March,
21 1999, at 2.30 p.m.