Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10250

1 Monday, 7 October 2002

2 [Open session]

3 [Status Conference]

4 --- Upon commencing at 9.08 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes, Madam Registrar. Good morning to you. Could

7 you be kind enough to call the case, please?

8 THE REGISTRAR: Yes, Your Honour. Good morning. This is case

9 number IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.

10 JUDGE AGIUS: Mr. Brdjanin, good morning to you. Can you hear me

11 in a language that you can understand?

12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your

13 Honours. I can hear you and understand you.

14 JUDGE AGIUS: I thank you. You may sit down.

15 Appearances for the Prosecution?

16 MS. KORNER: Joanna Korner, Andrew Cayley assisted by Denise

17 Gustin, case manager, good morning Your Honours.

18 JUDGE AGIUS: Appearances for Radoslav Brdjanin.

19 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman and

20 I'm with Milan Trbojevic and Marela Jevtovic.

21 JUDGE AGIUS: Good morning to you. So good morning, everybody.

22 You know that this is a Status Conference that the Chamber had decided to

23 hold, specifying also the date, and this was before Mr. Ackerman himself

24 included an ad hoc request for holding of a Status Conference in one of

25 his last -- one of his motions.

Page 10251

1 I suppose we need to go through all this one point after another.

2 I have my agenda which I have prepared, which, however, seems to have

3 disappeared.

4 But basically -- oh, here it is. The reason for this Status

5 Conference is more or less something that has already been stated, made

6 clear, during the last sitting or two sittings. This is a consequence

7 mainly of the severance of the two accused, of the two trials, and also as

8 I understood it when we first started discussing the possibility of a

9 Status Conference, also the need which was felt at a time to have some

10 amendments made to the indictment, as well as the reorganisation of the

11 case for the Prosecution, which to me seemed to be something which was

12 obvious that needed to be done.

13 Since we last met, we have had some developments. There was one

14 motion from General Talic to revoke the order for severance and also

15 accompanying it, in the sense that it's related to it, another motion

16 which asked for staying of proceedings and also time to file written

17 submissions, further written submissions on it. That matter has been

18 decided. The first of these motions was actually a request was for

19 certification. That was served -- the English version was served on you,

20 Mr. Ackerman, as lead counsel and the matter was decided last Thursday or

21 Friday. Certification being denied.

22 After that, the second of the -- the second motion was also

23 decided in the same decision, which was to give time for the filing of

24 submissions and in the meantime to stay proceedings. That was also

25 rejected. And following the filing of the decision of this Trial Chamber

Page 10252

1 rejecting certification, requested certification, the Trial Chamber

2 received an another motion from General Talic which we don't need to

3 discuss here because basically now it belongs to that trial and not this

4 one, and whether it will be decided or whether it needs to be decided or

5 not is a matter that does not concern you. But I'm just briefing you to

6 put you in the complete picture.

7 MS. KORNER: Your Honour, if I may just before you leave that, we

8 haven't filed a response to that because again we didn't know whether --

9 which Trial Chamber or whatever is seized of it. But in any event, Your

10 Honour, we took the view that it was otiose, we didn't require to

11 file a response to it, because in fact, you had already made a decision on

12 the issue.

13 JUDGE AGIUS: I think so.

14 MS. KORNER: But if Your Honours or whichever Trial Chamber deals

15 with that matter requires a response, then perhaps your clerk would let it

16 be good enough to let us know.

17 JUDGE AGIUS: Basically, the way we looked at the matter, you know

18 I mean that as experienced lawyers and we as experienced judges know that

19 when something like this happens, sometimes you get a motion and you don't

20 know exactly in which compartment to put it, or from which house to --

21 which bakery to bake it. And the decision that we took since it was a

22 request for certification leading to possibly revocation, we decided that

23 it belonged to the joint trial at the time and not to Talic's trial

24 separately.

25 So what happens to the last motion, I tell you, I will involve

Page 10253

1 Mr. Ackerman as Defence counsel for Mr. Brdjanin if it's the case of

2 involving him. You definitely will need to be involved because whichever

3 compartment that needs to be put in, you're always the Prosecutor in this

4 case.

5 As far as the rest is concerned, we have point number 1 that I

6 would like to deal with, and I think it can be dealt with very easily, at

7 the time this Chamber had -- was still considering Talic's request for

8 certification and the accompanying motion, you, Mr. Ackerman, filed a --

9 another motion of your own, asking for a delay in hearing witness or

10 proceeding with the case until the matter of the certification was

11 decided. Now, we have decided that issue and so am I right in taking it

12 that that motion is now to be considered moot?

13 MR. ACKERMAN: Yes, of course.

14 JUDGE AGIUS: So that's point number 1 that is being made. That's

15 for the Registrar and also my staff, Mr. Brdjanin's motion of last week

16 asking for a delay in the continuation of the proceedings pending the

17 decision on the certification is now moot.

18 Then we had concurrently two sets of documents coming from both

19 sides, which have a -- converge on something which is basic to the

20 continuation of this trial. And that is following an indication which we

21 had from the Prosecution during the last sitting, that was also as a

22 consequence of a verbal remark that you made, Mr. Ackerman, an indication

23 that the Prosecution will be seeking to amend to some extent the

24 indictment. At the same time, you came forward with an ad hoc motion for

25 the -- request for the amendment of the indictment and also for the

Page 10254

1 proceedings not to go ahead before the indictment is actually and

2 effectively amended. And I think that that is the next point that needs

3 to be taken up in this Status Conference.

4 May I just, in order to streamline and make everybody's task

5 easier, remind you of what was stated way back --

6 MR. ACKERMAN: I apologise, Your Honour.

7 JUDGE AGIUS: Let's start from the first of October. Basically on

8 that day, Mr. Ackerman, you asked that a new indictment be filed and that

9 the case be stayed until this new indictment was actually filed and

10 accepted or endorsed by this Chamber as required by the rules. At the

11 time, we invited you to make submissions on -- or rather you asked,

12 Mr. Ackerman, that we invite the Prosecution and you to make submissions

13 on which evidence tendered so far is relevant to Brdjanin's case and

14 should be incorporated into the records of this case. As a result of

15 these two specific requests, we agreed at the time that we would be

16 convening this Status Conference. Two days later, that is on the 3rd of

17 October, the Prosecution filed a response and specifically, this Chamber

18 was asked to reject the request for the stay of proceedings, to the --

19 deny, reject, the request, the parties make submissions regarding the

20 relevance of evidence which had already been admitted in the trial, and to

21 order that the proposed amended indictment that was filed on the same day

22 be approved for the duration of the trial against your client, Brdjanin.

23 The Prosecution on the same day requested leave to amend the

24 indictment as per the document which has been circulated.

25 There are two documents relating to possible amendments to the

Page 10255

1 indictment. Some amendments that have been suggested by the Defence for

2 Brdjanin have been incorporated in the proposed amendments by the

3 Prosecution. Some others do not feature in the proposed amendments. So I

4 would suggest first and foremost to ask the Prosecution to elaborate on

5 this.

6 MS. KORNER: Elaborate on what?

7 JUDGE AGIUS: About -- there are some further proposed amendments

8 to the indictment forthcoming from the Defence -- from the accused.

9 MS. KORNER: Yes.

10 JUDGE AGIUS: Which have not been incorporated. I don't know

11 whether at the time you drafted and filed the proposed amendments you also

12 had all the amendments that were in front of you, all of the amendments

13 that were being proposed by the Defence because it may well be that there

14 are some amendments that you don't have any difficulty in incorporating

15 now with hindsight or it may well be completely different from what I'm

16 suggesting.

17 MS. KORNER: Your Honour, we have amended the indictment in the

18 way we think is the correct way. May I say we didn't go through all of

19 Mr. Ackerman's objections or changes. We looked at the indictment and

20 worked out what was the correct way to produce a severed version of it and

21 those are the amendments we seek.

22 JUDGE AGIUS: Mr. Ackerman, do you have any comments on it this?

23 MR. ACKERMAN: Your Honour, I received the proposed amended

24 indictment 20 or 30 minutes ago and I haven't had a chance to even go

25 through it at all. That's the first I've seen it. It was in my box when

Page 10256

1 I arrived here this morning. It was not faxed to me in Texas. It was not

2 at my office here when I arrived here, so I have just had the first

3 opportunity to look at it. I've looked at it for maybe five minutes but

4 certainly, not any opportunity to look at it in depth at all. I don't

5 know where to go from this point other than it's very difficult for me to

6 make any kind after response regarding that indictment until I've had

7 several hours at least to go through it and compare it and think about it.

8 And I'm sorry about that but it's nothing that I could avoid in any way.

9 I didn't know there had been an amended indictment filed until I arrived

10 here this morning.

11 JUDGE AGIUS: No, there will not be several hours. We will go

12 through it bit by bit. Take your indictments out, please. The

13 Prosecutor's corrected version of the fourth amended indictment of the

14 10th December, 2001. We go to para 10 --

15 MS. KORNER: If it helps Mr. Ackerman what we've done, in

16 essence, is remove any charging language as against Talic in the

17 indictment --

18 JUDGE AGIUS: I don't think that's enough for Mr. Ackerman,

19 because I have -- I didn't have it faxed but I had all the documentation

20 with me and I spent a whole weekend going through paragraph by

21 paragraph -- through it paragraph by paragraph, comparing the two texts in

22 juxtaposition with what Mr. Ackerman was suggesting and there are several

23 points. It won't take us a long time. Don't worry, it will take us much

24 less time to go through this exercise than if I were to give the couple of

25 hours to Mr. Ackerman that he has asked for.

Page 10257

1 So para 10.

2 THE INTERPRETER: Your Honour, excuse me, the interpreters do not

3 have a copy of that indictment.

4 JUDGE AGIUS: I need my copy. Do you have a copy of the ...?

5 Yes, Inneke has one. Sorry, Inneke I'm going to deprive you of your copy.

6 And if the Prosecution -- you have the proposed amended indictment, Mr.

7 Ackerman, no?

8 MR. ACKERMAN: Yes, I do, Your Honour.

9 JUDGE AGIUS: Okay. So just open the two indictments, please.

10 Para 10. The Defence for Talic -- for Brdjanin asks for the removal

11 or the deletion in para 10 of any reference to Talic's membership in

12 the ARK Crisis Staff. Essentially, what the Prosecution has done is not

13 what Mr. Ackerman requested. It has only removed the bold

14 characterisation of Momir Talic so that the text essentially remains the

15 same except that Momir Talic in the amended, fourth amended indictment,

16 appears in bold characters while in the proposed amended indictment, it is

17 in normal characters. So here we have the first variation or difference.

18 Mr. Ackerman, do you insist on --

19 MR. ACKERMAN: Well, Your Honour, the status of the situation as

20 is exists today is this: The Prosecution has presented absolutely no

21 evidence that General Talic ever attended any meeting of the ARK Crisis

22 Staff or was ever actually a member of that staff other than one document

23 upon which his name appears. If -- on para 10 of the indictment, it's the

24 intention of the Prosecutor to set out who the members of the Crisis Staff

25 were, then that's one thing. But to name only two, Radoslav Brdjanin and

Page 10258

1 Momir Talic seems to be leaving the indictment basically in the state of a

2 joint indictment of Brdjanin and Talic. If it is the Prosecutor's

3 intention with regard to para 10 to set out in that paragraph who the

4 members of the Crisis Staff were, including General Talic, then that's the

5 way it should be done but otherwise, it is not a Brdjanin-specific

6 paragraph but it's a Brdjanin-Talic paragraph. That's my objection to it.


8 MS. KORNER: Could I reply, Your Honour?

9 JUDGE AGIUS: Yes, please.

10 MS. KORNER: Your Honour firstly, this is a -- if you like -- an

11 abstract of the original joint indictment as it developed through the

12 various orders that were made by Judge Hunt as to the detail that was to

13 be provided. It would have course be possible to apply to amend to put in

14 a number of other details but in our submission, they are necessary.

15 Later on in the indictment, there is reference to other members of the ARK

16 Crisis Staff. The fact is that at this stage, it is a matter for us

17 subject to Your Honour's rulings, as to who we wish to name at this really

18 background paragraph. As to evidence, there is clear, unambiguous

19 evidence that General Talic was named --

20 JUDGE AGIUS: Leave that because the purpose of this Status

21 Conference is not to establish whether there is evidence or not.

22 MS. KORNER: Very well, then Your Honour as far as we are

23 concerned unless there is something wrong in law with that pleading, we

24 submit that we are justified and indeed properly correct because

25 effectively it's still, going right back, it's all one joint indictment

Page 10259

1 against three men but each one has been amended through the process of

2 these hearings.

3 JUDGE AGIUS: So para 10 -- para 12, sorry. The Defence for

4 Brdjanin objects to the retention in the indictment any reference to

5 Talic's presence on the 12th of May, 1992 meeting of the assembly of the

6 Serbian people in Bosnia and Herzegovina, the decision to create the army

7 of the VRS, Talic being amended commander of the 1st Krajina Corps of the

8 VRS and the 1st Krajina Corps engaging in military operations in the

9 municipalities included within the area of the ARK. Basically, this is

10 what is being objected to. In reality, one sees the proposed amended

11 indictment again we just have the whole paragraph retained as it is, with

12 the exception of the name of Momir Talic no longer appearing in bold

13 characters.

14 Now, Mr. Ackerman, do you want to sustain your position?

15 MR. ACKERMAN: Yes, Your Honour. I think a lot of these

16 paragraphs, the same argument applies. And it basically is that if you

17 look at the original indictment in this case, against Mr. Brdjanin only,

18 you don't see any of this language that went into the indictment after

19 General Talic became a defendant in the case, and now, all the Prosecutor

20 is doing is just removing the boldface type but leaving the indictment

21 the same as a joint indictment against Brdjanin-Talic. There is another

22 person involved in this indictment whose name has now been made public but

23 you find his name no where in here, bold or otherwise. And the Prosecutor

24 is really trying to simply conform this indictment to a Brdjanin-specific

25 indictment just by taking out the bold type in General Talic's name but we

Page 10260

1 are in a whole different universe here at this point. This used to be an

2 indictment involving the military. It's no longer an indictment involving

3 the military. Mr. Brdjanin is not military. And Mr. Brdjanin had nothing

4 to do with the military, had no control whatsoever over the military, and

5 to continue this indictment as if there is a military component to it I

6 suggest to you is improper and it must be changed in many of the ways that

7 I've suggested. And I think this argument will apply to a number of the

8 paragraphs, Your Honour, so I won't have to repeat it.


10 MS. KORNER: Your Honour, can I make it clear and I think this

11 will deal with it. First of all, Mr. Ackerman is wrong. The original

12 indictment was against three persons, Brdjanin, Talic, and Zupljanin. It

13 was always a joint indictment but because each person was separately

14 arrested, if one looks at the original or even the one -- the amended one,

15 of December, 1999, it's all very different because the jurisprudence of

16 this Tribunal changed dramatically as to the amount of detail and the

17 further details that were added as a result of motions and instructions

18 from the Trial Chamber clearly at that stage didn't involve Stojan

19 Zupljanin because he's never appeared but Mr. Ackerman must understand the

20 original -- he keeps on talking about an original indictment against

21 Brdjanin alone, there never was such a thing. There was always a joint

22 indictment against all three men.

23 As to the military component, I don't know how often we have to

24 keep saying this. There is and always will be a military component to the

25 evidence in this case. This case against Mr. Brdjanin is that he, Talic,

Page 10261

1 Zupljanin and others, were engaged in a criminal joint enterprise which

2 had a number of different components, the police, the army, and the

3 political. And our understanding of the law is that if there is such an

4 enterprise, the actions and the words of persons in furtherance of that

5 joint enterprise are admissible evidence and, again, to assert that

6 Mr. Brdjanin had no control over the military and the like, all of that is

7 a matter of evidence. What we are dealing with here at the moment is the

8 law on what is permissible charging language in an indictment, and we

9 would be criticised if we did not make it clear that we were saying that

10 this was a criminal joint enterprise and that evidence will be led even

11 now as to the military actions that were taken in the course of this joint

12 enterprise in 1992 in the area known as the Autonomous Region of Krajina.

13 JUDGE AGIUS: Thank you.

14 MR. ACKERMAN: May I respond very briefly.

15 JUDGE AGIUS: Of course.

16 MR. ACKERMAN: I assume Ms. Korner is correct that there was an

17 original indictment charging all three of the people in this case but it's

18 never been served on anyone. I have never seen it. I doubt Your Honours

19 have ever seen it. It apparently rests somewhere in the registry. What I

20 was talking about in regard to the original indictment was the original

21 indictment filed among the pleadings in this case and that original

22 indictment filed among the pleadings in this case charged only Radoslav

23 Brdjanin, did not include all of this language that you see in the current

24 indictment regarding Momir Talic. The second thing is with regard to this

25 issue of joint criminal enterprise. And it seems to me that in the

Page 10262

1 interest of timing, that it might make sense, and I'm just raising this so

2 that Your Honours can begin to think about it and maybe you would prefer

3 that I raise it formally by motion, but it seems to me that it would make

4 sense if the Prosecution contends that there was a joint criminal

5 enterprise, of which Mr. Brdjanin and Mr. Talic were a part, that the

6 Chamber should first require the Prosecution to establish to the Chamber's

7 satisfaction, prima facially, that there was such a joint criminal

8 enterprise and that Brdjanin and Talic and anybody else they contend were

9 members of it, because if the Court would find that the Prosecution has

10 failed to establish that prima facially then we could save an enormous

11 amount of time in this case because we are hearing all of these crime-base

12 witnesses on the basis that at some point it will be established that

13 there was a joint criminal enterprise and if it never happens then we've

14 wasted an enormous amount of time. So that might be a solution to the

15 time problem that I know Your Honours perceive with regard to the

16 continuation of this case, if the Prosecution would simply be instructed

17 to order their proof in that way. It might save a great deal of time.

18 JUDGE AGIUS: You want to file a motion, you're of course free to

19 do so.

20 So that was the submission on para 13 -- para 12. Para 13 is very

21 much the same. If I read well the request of the Defence, it amounts to

22 or it's tantamount to the removal or the deletion from that paragraph of

23 any reference to General Talic being commander of the 1st Krajina Corps

24 and member of the ARK Crisis Staff, being responsible for the

25 implementation of the policy of incorporating the ARK into a Serb state.

Page 10263

1 Do you sustain this -- just say "yes" or "no" because obviously the

2 reasoning if you say no, the reasoning is the same I suppose.

3 MR. ACKERMAN: Yes, Your Honour. I sustain my objection.

4 JUDGE AGIUS: And I don't think you need to respond, Ms. Korner,

5 because -- para 15, that's no problem. Both of you asked for the

6 deletion of that paragraph and that paragraph has indeed been deleted.

7 Para 19, now, this paragraph, in the fourth amended indictment, of

8 December, reads, "General Momir was the commander of the JNA 5th Corps

9 from 19 March, 1992 and on its transition to the 1st Krajina Corps from

10 19th May, 1992, each of the five corps within the VRS had a corps

11 commander and a command staff all of which were subordinated to General

12 Mladic and the main staff of the VRS." You want this to be -- you want

13 the deletion of reference to General Talic being the commander of the JNA

14 5th Corps and on it's transition to the first Krajina Corps and that the

15 corps commander and command staff were subordinated to General Mladic and

16 the main staff of the VRS. Do you sustain it?

17 MR. ACKERMAN: Yes, Your Honour and this is a little different in

18 that these paragraphs are specifically allegations against General Talic

19 and if these are appropriately in the indictment then it seems that also

20 appropriately in the indictments would be specific allegations against

21 Mr. Zupljanin and maybe other members of the Crisis Staff but this clearly

22 is material that was put in the indictment because General Talic was a

23 co-defendant in the case and for no other reason. It wouldn't have

24 been there had he not been arrested and it should not be there now

25 that he's no longer in the case.

Page 10264

1 MS. KORNER: Your Honour, it's in fact background and explanation.

2 That's the trouble with the forms of the indictment here in my view. One

3 is required to set out a full explanation of the events which lead to the

4 specific charges, unlike, I imagine, Your Honour's jurisdiction and mine

5 where you simply have a straight forward allegation. But these are all

6 background paragraphs and they are there to explain how we put the case

7 on -- against accused in relation to each component of it. And clearly,

8 it is important for the Court to know that there was a transformation into

9 the Bosnian Serb Army around the 12th of May and Talic's position therein.

10 But it's one of the things I've always wondered about, whether, when it

11 came to establishing the case one was obliged to establish the background

12 facts as well, but that is background information.

13 JUDGE AGIUS: Okay. Basically, as you know, Mr. Ackerman, the

14 Prosecution seeks to retain this paragraph as it is only removing the bold

15 character from where -- for Talic's name.

16 Same request is directed by the Defence against para 20, in so far

17 as this paragraph contains the duties and lists the duties and

18 responsibilities of General Talic in his capacity as commander. Do you

19 want to sustain and of course the answer is yes, because.

20 MR. ACKERMAN: Yes, Your Honour.

21 JUDGE AGIUS: Because this follows the previous one. And I

22 suppose you're reply is the same?

23 MS. KORNER: Sorry, yes, it is, Your Honour.

24 JUDGE AGIUS: Okay. And then it's 21. Now, here, this is perhaps

25 a little bit more fundamental because it's not just the description --

Page 10265

1 background description, of events, but there is also a -- quite a

2 straightforward allegation here.

3 This paragraph, the Defence seeks to delete in so far as it

4 contains references to Talic as a co-perpetrator in the joint criminal

5 enterprise and that his participation in the execution of the common

6 purpose of the enterprise included activities of the Crisis Staff. There

7 is also a reference to Talic allegedly being individually responsible for

8 the conduct of other participants in the joint criminal enterprise,

9 including members of the ARK crisis and those implementing its decision.

10 What's your position in this -- on this.

11 MS. KORNER: Your Honour, that's quite substantially altered. If

12 you look at paragraph 20.1 which I think is what you're reading it's quite

13 substantially altered from the original.


15 MS. KORNER: You were reading out the original.

16 JUDGE AGIUS: Yes exactly. I'm just pointing out now before you

17 answer that the amendments that have been applied by the Prosecution are

18 three. Number 1, the name of Talic remains there and some places but it

19 no longer appears in bold. Number 2, the words, "General Momir Talic and

20 others" have -- in other words, five lines from the top of that paragraph,

21 reading, "General Talic and others, and other members of the crisis --

22 were co-perpetrators in this criminal enterprise and as such, their

23 participation up to Crisis Staff." "General Momir Talic and other," those

24 words are deleted. "General Momir Talic and others," those words are

25 deleted.

Page 10266

1 I suggest Mr. Ackerman reads the proposed amended version. Can

2 you live with that as contrasted with or as compared with the fourth

3 amended indictment?

4 MR. ACKERMAN: Your Honour, I'm basically satisfied with one

5 exception. The first sentence, if the first sentence were removed, then

6 it would begin with, "The Crisis Staff, later renamed War Presidency was

7 one of the structures," blah blah blah blah blah. There is no

8 justification for singling out General Talic being publicly named as one

9 of the members of the ARK Crisis Staff so if that was just removed and the

10 paragraph read, "The Crisis Staff" and on through what the amendment says,

11 then it would be perfectly acceptable and I think appropriate.

12 MS. KORNER: Your Honour, I think I should say one more time, the

13 only legal obligation upon us is to make it absolutely clear in this

14 indictment that General Talic is not charged on this indictment. That's

15 the only obligation we say that we are obliged to follow. And that's why

16 it's been left. We have altered as little as possible because we feel

17 that's the proper thing to do.

18 JUDGE AGIUS: All right. Paragraphs 21 to 23.1, taken altogether,

19 you notice in the original or in the fourth amended indictment, there is a

20 specific reference to the units which were placed under the command of

21 General Talic. The Defence for Brdjanin wants that to be removed. That

22 is not being accepted by the Prosecution. The only difference between the

23 two versions is that Momir Talic appears in bold in the fourth amended,

24 while it does not appear in bold in the proposed amendments. Is it so

25 fundamentally important for to you have this removed, Mr. Ackerman?

Page 10267

1 MR. ACKERMAN: Your Honour, it gives the indictment a fundamental

2 military character, which I think it does not deserve. It's my

3 recollection, and Ms. Korner will certainly correct me if I'm wrong but

4 I'm pretty sure I'm right, these paragraphs were added as a result of an

5 objection to the indictment filed by General Talic himself saying that it

6 was not sufficiently specific, the Prosecution resisted that request by

7 General Talic. Judge Hunt ordered that this kind of specificity be put in

8 the indictment. It was done over the Prosecutor's objection and that's

9 how it got there and now the Prosecutor is objecting to it being removed.

10 And it seems to me that it should be removed, that it is pure Talic

11 material, was put there at the request of General Talic and was not part

12 of any of the original indictments in this case.

13 JUDGE AGIUS: Okay. Do you want to comment, Ms. Korner?

14 MS. KORNER: Well, Your Honour, I'm sure that's -- I can't

15 remember exactly but I'm sure that's right. This was the request for

16 further particulars. But again, Your Honour, it's in there because we are

17 going to be leading evidence of what various units did in various areas.

18 JUDGE AGIUS: Para 24, the Defence seeks the deletion in that

19 paragraph of any reference to Talic being the person responsible to carry

20 out a plan to establish and secure a Serb state and to separate the ethnic

21 communities in Bosnia and Herzegovina and that this included inter alia

22 attacking and destroying non-Serb villages, killing and terrorising the

23 non-Serb population. This is not being -- you're not being met by the

24 Prosecution in this context, Mr. Ackerman, and the only difference between

25 the two texts is the removal of the bold characters. Do you sustain

Page 10268

1 your -- do you retain your position or do you want to change it?

2 MR. ACKERMAN: No, I don't change my position, Your Honour. This

3 is a pure allegation against General Talic because he was originally -- he

4 became part of this indictment. It was not there until he became part of

5 the indictment.

6 JUDGE AGIUS: Now, no comments from the Prosecution?

7 MS. KORNER: No, thank you, Your Honour.

8 JUDGE AGIUS: Para 25 and 26 which I suggest we take together, the

9 Defence is seeking the deletion from those two paragraphs of any reference

10 to what Talic's responsibilities and obligations were as a superior for

11 violations of international law of war committed by individuals under his

12 command. Now, this is not being accepted by the Prosecution and when you

13 compare the two texts, the only difference is the bold characters

14 appearing on the -- in the fourth amended indictment are not being

15 retained. Mr. Ackerman?

16 MR. ACKERMAN: My position is the same as I stated with regard to

17 paragraph 24, Your Honour.

18 JUDGE AGIUS: And your position I suppose is the same.

19 MS. KORNER: It is, Your Honour.

20 JUDGE AGIUS: Now, may I direct you to paras 27.1 to 27.4,

21 please. The amendments that have been incorporated in the proposed

22 amended indictment are the following. Number 1, the name of General Talic

23 which appeared in bold in the fourth amended indictment no longer appears

24 in bold. Then there are minor grammatical adjustments, namely plural

25 becomes singular, which you don't need to worry about, and then in para

Page 10269

1 27.2, there is the removal of the words "and military". In other words,

2 the last line of that paragraph, respective positions in the Bosnian Serb

3 political and military power structures it would read now, "Respective

4 position in the Bosnian Serb political structure." In his position, the

5 reference being to Radoslav Brdjanin only and removal of General Talic.

6 What's your position, as far as this proposed amendment is concerned,

7 Mr. Ackerman?

8 MR. ACKERMAN: Your Honour are we speaking 27.1 through 27.4?


10 MR. ACKERMAN: The only -- I'm satisfied with the amendment with

11 one exception. In paragraph 27.2, after Radoslav Brdjanin, it seems that

12 it makes sense for Momir Talic's name not to appear so it would say,

13 "Including Radoslav Brdjanin and other members of the ARK Crisis Staff."

14 But it's not a Brdjanin-specific indictment to single out Momir Talic

15 among those members of the Crisis Staff. Otherwise, I'm satisfied with

16 the rest of those paragraphs.

17 JUDGE AGIUS: Yes. I will not be asking for your comments unless

18 I see you standing. Thank you.

19 So that is -- then para 32, please, para 33 and para 34. These

20 are simple amendments that, of course, have been necessitated by the

21 severance of Talic, removal of Talic from this case. Each time there is

22 recurrence of the word "each of the accused were" now we have the phrase

23 or the words "the accused was" or "the accused is". I suppose that is --

24 should not be in any way controversial.

25 MR. ACKERMAN: It's not, Your Honour. Those are fine.

Page 10270

1 JUDGE AGIUS: Now, may I direct you to para 36 now? This is

2 perhaps where you need to both to pay a little bit more attention.

3 Basically, as I read your motion, Mr. Ackerman, more or less you -- with

4 regard to the charges section of the indictment, you are seeking the

5 removal of any reference to Talic, including the following. In para 36,

6 you were seeking for the removal of any indication towards individual and

7 joint responsibility of the accused for the alleged offences. In reality,

8 the proposed amendments are to this effect, name of General Talic is being

9 deleted, and then obviously, wherever you have the recurrence of the words

10 "with each other" that has also been deleted. Are you happy with that?

11 MR. ACKERMAN: Well, Your Honour, I certainly take your word for

12 what has happened. I've not had a chance to read all the way through all

13 of those. If what you say is the case, then, yes, I'm happy. All I ask

14 for was that General Talic's name be removed from those, and that's kind

15 of an obvious request, I think.

16 JUDGE AGIUS: So the same applies basically, it seems to me,

17 correct me if I am wrong, as far as paras 44, 46, -- 44 and 46. Wherever

18 there was the name of Talic, this has been removed and wherever there was

19 the use of the words "with each other" these also have been removed.

20 All right?

21 MR. ACKERMAN: Yes, Your Honour.

22 JUDGE AGIUS: Okay. So may I refer you now to para 48, please?

23 And in para 48, you have the deletion of General Talic's name. Otherwise

24 everything remains the same.

25 MR. ACKERMAN: That's acceptable, Your Honour.

Page 10271

1 JUDGE AGIUS: Okay. Paras 50 and 52. Name of Talic has been

2 deleted and there are some consequential grammatical changes, which

3 shouldn't bother you.

4 MR. ACKERMAN: No. It's fine, Your Honour.

5 JUDGE AGIUS: Okay. Thank you. The same applies to paras 54 and

6 56, 58, and 60, and 62, and 64.

7 MR. ACKERMAN: Yes, Your Honour, and again I think the amendments

8 are appropriate.

9 JUDGE AGIUS: Okay. So I think we have covered all the proposed

10 amendments and when I say proposed, proposed from both sides. And

11 therefore, the matter will be decided later on today by this Chamber in so

12 far as the proposed amendments are concerned. So.

13 MS. KORNER: Your Honour, I just have one query on that. I don't

14 quite understand the procedures on this. If Your Honours order amendments

15 to be made, does that -- I think that doesn't require it to be resigned,

16 it's the same indictment with amendments. That's I think -- but I'm not

17 sure about that.

18 JUDGE AGIUS: I'm not sure either, Ms. Korner. In fact it's

19 something that I need to go and discuss with my --

20 MS. KORNER: If Your Honour gives us the answer we will comply

21 with whatever is required.

22 JUDGE AGIUS: What I can assure of you is it's something that is

23 going to be attended to today.

24 MS. KORNER: Thank you very much.

25 JUDGE AGIUS: In other words, It's not our idea to sleep on this

Page 10272

1 or to take much time in deciding it. As soon as this sitting is over, in

2 fact we are going to meet to conclude on this and the other.

3 So next point is, in your document, objection to proceeding with

4 the trial under the current indictment, Mr. Ackerman, you are asking for

5 the suspension of evidentiary proceedings or the staying of evidentiary

6 proceedings until this Chamber has approved the new indictment or approved

7 amendments to the indictment. May I have -- may we have your comments on

8 this specific request, Mr. Ackerman? Knowing that we do not intend to

9 proceed with the continuation of hearing of evidence until we decide this,

10 but we are going to decide it today.

11 MR. ACKERMAN: I'm not sure what Your Honour is asking for.

12 JUDGE AGIUS: No, no. You asked specifically and in a way it is

13 understandable, in another way it may not be so understandable, that this

14 case be stayed as far as the receipt of evidence is concerned, until a new

15 indictment has been filed and approved by the Trial Chamber or a Judge

16 thereof and until the accused has been able to exercise whatever rights

17 the rules of justice and justice may provide him with regard to that new

18 indictment. With this, you have a suggestion or a request that should we

19 decide to amend the indictment, you are expecting that -- or you are

20 pretending a right for your client to have 30 days within which to file

21 pleadings or pleas or whatever. Do you sustain that position? Do you

22 maintain that position? Or do you want to withdraw on it?

23 MR. ACKERMAN: Well, Your Honour, I do not withdraw it but I will

24 say this: Until I actually see what the indictment is going to be, it's

25 difficult to tell you my final decision with regard to that. There is not

Page 10273

1 a situation, and the only reason I mentioned 30 days is because that's

2 what the rule says, but there is not a situation where I would require 30

3 days. There is a situation where I might ask for a few days. One of

4 the -- I think -- largely unresolved issues in this Tribunal is to what

5 extent is surplusage permitted in an indictment and can an indictment be

6 attacked because it contains surplusage and that's based upon the

7 proposition that I set out rather briefly in my motion, and that is that

8 what is relevant evidence, basically as judged by a Trial Chamber based

9 upon what is alleged within the indictment. So the language of the

10 indictment can have large impact upon what the Trial Chamber sees as

11 evidence that's relevant to the case.

12 And if the indictment contains surplus language, the only

13 justification for which would be that it would permit the introduction of

14 evidence that otherwise would not be admissible, then it would seem to me

15 that an arguments could be made that that surplus language should be

16 removed and it seems also to me that that would come under the heading of

17 preliminary motions regarding the indictment as provided for by the rule.

18 I think once I know later today or tomorrow what form the indictment is

19 going to take then I can tell you specifically how I feel about that. But

20 in no event would it be 30 days.

21 JUDGE AGIUS: Assuming just nor argument's sake that you are

22 right, and that there will be a requirement or the need for you to file

23 some kind of response or whatever, would the necessary consequence be for

24 the staying of evidentiary proceedings? Do the -- do you see such a close

25 and intimate nexus between the two such as to make it impossible for this

Page 10274

1 Trial Chamber to proceed with the hearing of evidence without, of course,

2 prejudicing your right, if you have it, to file written pleading arising

3 out of the amended indictment?

4 MR. ACKERMAN: Your Honour I haven't given than a great deal of

5 thought but I hear very clearly what it is you're saying and I need the

6 Chamber to understand this: If we could go forward with this case

7 tomorrow, I would like to do that, but I don't want to, by doing that,

8 waive a substantive right of Mr. Brdjanin, and I certainly would not

9 intend to waive any substantive right of Mr. Brdjanin. So I'm unsure

10 about how to answer your question. I think, just as a matter of

11 fundamental law, that a trial should not go forward upon an indictment

12 unless it is a final indictment that is legal and appropriate, and if

13 there is pending some attack upon that indictment, then it would seem to

14 me that it's very difficult to go forward even with a waiver. But if Your

15 Honour believes that we can go forward with a waiver by me that would

16 not affect the substantial rights of Mr. Brdjanin, and we could make that

17 pretty air tight on the record, then I wouldn't have any objection because

18 I do feel like this case should go forward.

19 JUDGE AGIUS: I put it to you again for argument's sake that

20 whatever amendments are made to the indictment, these are the result or

21 are the consequence of not having General Talic any more a joint accused,

22 a co-accused, in this trial. The end result of any -- of the exercise to

23 amend the indictment can never - it's being suggested to you - bring as

24 a consequence either the aggravation of the situation of your client, as

25 far as charges are concerned, in other words he is not going to be -- to

Page 10275

1 be charged any differently from what he has been charged so far. The

2 charges were and it is being suggested will remain exactly the same as

3 they are until now. And if that is the case, if that is the case, where

4 do you see the prejudice?

5 MR. ACKERMAN: Well, frankly, I don't see any at this point, Your

6 Honour. And that's why I said I really would have no objection going

7 forward as long as it does not involve a waiver of any substantive right

8 of my client and I don't think it does.

9 JUDGE AGIUS: Thank you. Ms. Korner?

10 MS. KORNER: I don't know how many times I have to say the same

11 thing. The amendments, as Your Honour has rightly said, are only those to

12 remove from the indictment a suggestion that General Talic is facing

13 potential conviction on that indictment. It is our submission that

14 Mr. Ackerman has absolutely no right, under the rules, to seek a 30-day

15 adjournment to file pleadings. Rule 50 states, "The Prosecutor may amend

16 an indictment under (A)(i)(C) after the assignment of a case to a Trial

17 Chamber with the leave of that Trial Chamber or a Judge after having heard

18 the parties." And in (A)(2), "After the assignment after case to a Trial

19 Chamber it shall be not necessary -- it shall not be necessary for the

20 amended indictment to be confirmed."

21 Rule (B), Rule 50(B), "If the amended indictment includes new

22 charges, and the accused has already appeared, there is no need -- then

23 there has to be a further appearance," and (C), "The accused shall have a

24 period -- a further period, of 30 days, in which to file preliminary

25 motions pursuant to Rule 72 in respect -- and I emphasise -- of the new

Page 10276

1 charges."

2 So Your Honours, with the greatest respect, Mr. Ackerman does not

3 have a right under the rules on this amendment to file a further

4 objection.

5 Your Honour, my concern is that we have witnesses here. In fact

6 because we thoughts we were sitting in the afternoon, we were expecting to

7 call a witness today but we have four witnesses here and we need to know

8 to be assured that we will shall able to call evidence tomorrow.

9 JUDGE AGIUS: Yes. Next point, tell me when we need to stop,

10 Madam Registrar? Okay. Thank you. Now, the decision will be handed down

11 orally by the way and there is no other way of dealing with it without

12 wasting much time.

13 MS. KORNER: Can I ask, will Your Honours then reassemble the

14 Court when you reach the decision?


16 MS. KORNER: Yeah.

17 JUDGE AGIUS: So we will be deciding first on the proposed

18 amendments, secondly whether we are going to stay proceedings, thirdly

19 whether we are giving you or whether you are entitled in case we amend, as

20 we need to amend the indictment in any case, whether you are entitled or

21 whether you will be given any time limit under the rules.

22 Next thing that obviously needs to be addressed, you made a

23 suggestion, or a request, Mr. Ackerman, that now that the two cases are

24 being separated, and that for a good number of months we have been

25 receiving evidence directed against the Brdjanin and Talic as co-accused

Page 10277

1 in this trial, time should be taken to sift from amongst that bulk of

2 evidence, corpus of evidence what is relevant to Brdjanin's case and what

3 is not. This request is being opposed by the Prosecution and may we hear

4 any further submissions in addition to what you have put in writing on

5 this point?

6 MR. ACKERMAN: Your Honour, it's not very material to me when that

7 process is carried out. It could even be carried out at the close of the

8 Prosecution's case, as far as I'm concerned, but it seems it to me there

9 does come a time when it's important for the Brdjanin Defence to know what

10 case it has to answer. And it's my contention that a great deal of the

11 evidence, not a great deal but at least some portion of the evidence that

12 exists in the record right now would not have been admitted had it not

13 been for the presence of General Talic in the case. And I think at some

14 point the Court must decide what of that evidence becomes part of whatever

15 the indictment will be against Mr. Brdjanin as we continue this case. But

16 I'm not suggesting to you that we need to stop all proceedings and spend

17 the next month going through that process. I think that process can be

18 carried out over the course of this trial without delaying the trial in

19 any way.

20 JUDGE AGIUS: I think, Mr. Ackerman, you're putting in the same

21 pot two completely different things. One, there is no doubt that the

22 Trial Chamber eventually will have to decide which of those documents are

23 relevant to your client and which may not be relevant at all. But that is

24 a separate exercise which should not be mentioned at this stage because

25 that's our problem and not yours, neither the Prosecution's nor yours.

Page 10278

1 You are mature enough to know or experienced enough to know that the

2 Prosecutor can stand up and say, "Every single document that has been

3 tendered it -- is relevant." At that point in time, what is your request?

4 The Prosecutor tells you, all of them are relevant.

5 MR. ACKERMAN: I think that's probably the Prosecutor's position

6 that all of them are relevant.

7 JUDGE AGIUS: We are all experienced here and this is why I'm

8 preempting the issue because I had no doubt that this is what Ms. Korner

9 will have stated.

10 MR. ACKERMAN: The question of relevance is always one for the

11 Trial Chamber and it has always been the case since we started this trial

12 that issues of relevance were going to be decided later on in the case.

13 That's what Your Honour said in your preliminary remarks before we

14 started.

15 JUDGE AGIUS: Many of them are not relevant or not relevant at

16 all.

17 MR. ACKERMAN: I understand that but I'm just saying the question

18 of relevance, I think, has changed as a result of the severance in this

19 case and so a new approach must be taken to that issue and the only way it

20 affects Mr. Brdjanin, Your Honour, is that there must come a time when

21 Mr. Brdjanin is made aware of what case it is he has to answer.

22 JUDGE AGIUS: Does that arise from the documentation or from the

23 indictment?

24 MR. ACKERMAN: It arises from what the Prosecution has been able

25 to prove from their evidence, Your Honour.

Page 10279

1 JUDGE AGIUS: That's at the end of the -- of the closing of the

2 case for the Prosecution.

3 MR. ACKERMAN: Absolutely. I think I just said that it a few

4 moments ago.

5 JUDGE AGIUS: Ms. Korner do you want to comment on it this? Okay.

6 So that is again another matter that will be decided.

7 I think that covers most of what has come to the surface in the

8 wake of the severance of the two accused.

9 Are there any matters that you would like to raise, keeping in

10 mind that we have ten minutes before we are supposed to break. Otherwise,

11 if any argument that you are bringing up now raising, needs more than ten

12 minutes, we better stop now and resume after the break.

13 MS. KORNER: Your Honour, I don't know is the answer, but I have

14 to raise what happened in the Appeals Chamber on Thursday. I'm not sure

15 how long that is going to take. I think it probably may take more than

16 ten minutes.

17 JUDGE AGIUS: This is about the Randal --

18 MS. KORNER: This is about the Randal affair and what happened.

19 JUDGE AGIUS: I have not consulted with my colleagues as yet

20 because I didn't have the chance but just to inform you that last Friday,

21 I asked for a copy of the transcript of the proceedings before the Appeals

22 Chamber and I have read them. What I haven't read, because it hasn't been

23 given to me, is a copy of the Boston Globe article which supposedly

24 contains an interview with Mr. Ackerman, but again, I mean, I must make it

25 clear that this is one topic that I have not yet discussed with my

Page 10280

1 colleagues.

2 MS. KORNER: Well it may be as well Your Honour if we were to

3 break, we can provide Your Honours with a copy of the Boston Globe because

4 it formed part of the appellant's brief. What I am afraid I managed to

5 mislay wholly somehow -- I should have given it to Ms. Gustin straight

6 away but I didn't was Mr. Ackerman's e-mail to solicitors for the

7 appellants and their response which was put in to the trial -- the Appeals

8 Chamber. I was provided with a copy on the morning --

9 JUDGE AGIUS: That I haven't seen either.

10 MS. KORNER: But I'm afraid I may have to ask if perhaps one of

11 your staff could speak to the senior legal officer to the Appeals Chamber

12 and see if he can provide a copy of that. Perhaps -- I wouldn't mind a

13 copy either because I've lost mine.

14 JUDGE AGIUS: So basically, I mean, I have read -- let me just

15 hear you, Mr. Ackerman, for a couple of minutes, not more, on this. In a

16 way, I understand what your stand is and what your preoccupation or your

17 concern is. I want to make it clear also that I will be suggesting to my

18 colleagues to approach this not from the importance of the appeals hearing

19 or decision, because that is - I consider - to be something which is

20 completely irrelevant to the point that is being raised by you, arising

21 from the interview which Mr. Ackerman gave to the Boston Globe. What's

22 your position, Mr. Ackerman?

23 MR. ACKERMAN: Your Honour, I think I can state it very briefly.

24 My original position regarding this matter has changed a little bit but

25 not very much. And I think I have -- it's on the record somewhere in this

Page 10281

1 case that I did change that position, I'll find it if you'd like me it to

2 but in any event, my position is this: Having spoken with the other

3 journalist involved, he was here, he spoke with the Prosecution and he

4 spoke with me, and at that point, my position changed.

5 JUDGE AGIUS: The other journalist involved without mentioning a

6 name is the one who is supposed to have been interpreting?



9 MR. ACKERMAN: I had originally thought it was a different

10 interpreter and that's when I first learned it was this journalist. At

11 that point it became clear to me that -- and I looked at the article that

12 the second journalist wrote, at that point it became clear to me that the

13 Randal article was largely correct, as far as it went, but it failed to

14 put the whole issue into context and therefore was misleading and that it

15 was necessary to cross-examine Mr. Randal for the purpose of showing the

16 context in which the article was written. I agreed with Mr. Koumjian or I

17 suggested to Mr. Koumjian that I would have no objection to admitting the

18 article written by the other journalist because it did contain reference

19 to the context in which the alleged remarks were made where the Randal

20 article did not. And so if the Prosecution still insists on using the

21 Randal article as opposed to the other one, then I must still insist that

22 he be brought here for cross-examination. Now, somewhere there was

23 confusion generated with regard to that and I think it probably was my

24 fault there was confusion generated with regard to that, I didn't intend

25 for that to happen but I think just now I have stated my position about as

Page 10282

1 clearly as I can.

2 MS. KORNER: Your Honour, in fact, I think there is so much that

3 needs to be said on this position that I think we better do it after the

4 break.

5 JUDGE AGIUS: At least I know what the position of Mr. Ackerman

6 is.

7 MS. KORNER: Absolutely.

8 JUDGE AGIUS: Because I was a little bit confused actually.

9 MS. KORNER: I don't think there is anybody who wasn't confused

10 about that.

11 MR. ACKERMAN: Your Honour, may I suggest that instead of

12 reassembling in a few minutes to discuss this that you go ahead with the

13 task you have before you and if there is anything further to discuss with

14 regard to the Randal matter we could do that when you announce your

15 decision later today.

16 JUDGE AGIUS: Obviously, yes.

17 MS. KORNER: So Your Honour is going to -- sorry I understood we

18 were going to have a break and then come back to discuss the Randal

19 position.

20 JUDGE AGIUS: Of course, yes.

21 MS. KORNER: That's what I thought.

22 JUDGE AGIUS: No, no. This is was just because I didn't quite

23 know what Mr. Ackerman's position was because one time he seemed to be

24 accepting the article or the correctness of the article. At the same

25 time, still requiring the -- Mr. Randal to be here for cross-examination

Page 10283

1 to rectify the wrong impression that the article may be giving or may have

2 given so that is where I was confused obviously.

3 MS. KORNER: I'm sorry, Your Honour. Mr. Ackerman -- I think Your

4 Honour has now misunderstood. Mr. Ackerman is suggesting that we don't

5 have break and come back and discuss it. He's suggesting that we don't

6 discuss it until you've reached a decision on the indictment. That's what

7 I was clarifying.

8 JUDGE AGIUS: No, no, no. We discuss Randal and then we reach --

9 because the first we have to conference amongst ourselves on the

10 indictment and give instructions for the elaboration of at least a few

11 points that we may require in giving the oral decision. Then we meet here

12 to discuss the Randal -- we may actually decide the issue before we move

13 on to discuss the Randal thing but we may require to postpone giving the

14 oral decision until after the discussion on the Randal but first we have

15 a break and then we will.

16 MS. KORNER: Your Honour, the break being -

17 JUDGE AGIUS: 30 minutes, I think we need, 30 minutes at least.

18 MS. KORNER: 30 minutes. Thank you.

19 JUDGE AGIUS: Okay. Thank you.

20 --- Recess taken at 10.30 a.m.

21 --- On resuming at 11.18 a.m.

22 MS. KORNER: Your Honour, may I take a little time it to run

23 through what is rather a complicated history now because it's important I

24 think for a number of reasons that we sort this. Your Honour, the Appeals

25 Chamber at the end of the hearing on Thursday, as Your Honour knows,

Page 10284

1 because you've read the transcript, Judge Meron asked me or he said this,

2 "The situation before us now in the light of the e-mail which was

3 mentioned is perhaps less than crystal clear. I would be grateful to the

4 Prosecutor to Ms. Korner if she would tell us this. Assume that it is

5 confirmed that Mr. Brdjanin does no longer contest the accuracy of the

6 quotations, would you still need in these circumstances a subpoena?" And

7 my response to that was this: "First, the point that I'm trying to make

8 is that although Mr. Ackerman has sent this extraordinary e-mail not

9 to the court but to the appellant saying he no longer wishes to contest

10 it, that admission has to be made before the Trial Chamber. Then if the

11 Trial Chamber admits the article we certainly, on behalf of the

12 Prosecution don't require Mr. Randal to attend. Mr. Ackerman, however, in

13 order, as I understand it, still to have this article admitted says

14 that we must call, says the Trial Chamber must order the journalist to

15 appear so that he can question him about the context. But at the moment,

16 as I say, all of this is unclear. We do not wish to call Mr. Randal. We

17 took the statement from Mr. Randal to confirm the accuracy of the quotes.

18 If those are no longer disputed, that ends our interest in calling him

19 provided the article is admitted." Now, Your Honour, it arose as Your

20 Honour well remembers in this way, that the article was objected to and a

21 statement had been taken from Mr. Randal, and I think it's worth reminding

22 Your Honours and Mr. Ackerman of what is in the statement as a result of

23 what Mr. Ackerman has been saying since then. It is to this effect, Your

24 Honour, if you would forgive me one moment while I just extract -- it was

25 attached to the -- sorry.

Page 10285

1 Yes. Your Honour, the statement taken from Mr. Randal said

2 this, in respect of the interview. "The other journalist X and I

3 interviewed Brdjanin at the Presidency in Banja Luka. He was open with us

4 and quite happy to talk. X was a former Fulbright scholar in Belgrade and

5 spoke fluent Serbo-Croat. We therefore did not need an outside

6 interpreter."

7 Your Honour, then I have looked at the transcripts in which these

8 matters were discussed before Your Honours because they were supplied to

9 the solicitors for Mr. Randal with the leave of Your Honours. It arose

10 first on January the 21st when I said that the witness declined to attend,

11 and Mr. Ackerman at page 653, stated that he required Mr. Randal to attend

12 because he objected to the use of any newspaper articles to prove a fact

13 at issue in this case and this one falls into the same position and it may

14 very well be that this person doesn't want to come because they can't

15 substantiate what they wrote in the article. The appeals Chamber was then

16 told that apparently Mr. Ackerman hadn't read the article so the matter

17 was adjourned from that day.

18 Then it arose again -- I'm sorry, in the same day, and Your Honour

19 dealt with it, and then again in respect of the witness summons, on the

20 26th of February, I raised the matter again and asked whether it was

21 required for the journalist to attend because whether there was going to

22 be cross-examination upon the content of the interview, and we asked

23 Mr. Ackerman to reconsider the request that the journalist attend saying

24 that we were content purely to put the article in. And Mr. Ackerman at

25 that stage said to Your Honour, and this is at page 2284 of the

Page 10286

1 transcript, "Ms. Korner has touched the very matter that is the essence of

2 my challenge and that is that the person who could actually understand

3 what Mr. Brdjanin was saying was hostile to Mr. Brdjanin politically, and

4 it's my contention that what was written down was not what Mr. Brdjanin

5 said." I am assuming from that that Mr. Brdjanin had provided

6 instructions that the quotes or -- were inaccurate.

7 Your Honours issued the witness summons and it was referred to on

8 a number of occasions after that but Your Honour the only other point that

9 Mr. Ackerman made about it was this, and this was on the 1st of March at

10 page 2527 of the transcript, he was objecting to the admission on the

11 basis that it was after the period specified in the indictment. And then

12 he broached for the first time that the subject matter of the interview

13 was Mr. Brdjanin as a minister of the government was being asked his views

14 regarding the cantonisation plan put forward by Vance and Owen and he

15 dealt with -- the Vance-Owen Plan and stated that was what he was being

16 asked to comment upon, that is Mr. Brdjanin, his client.

17 And that effectively was the last discussion, save for the

18 question of the witness summons and when it was going to be served up.

19 Your Honour, therefore at no stage and this is the point I was forced to

20 make, although Mr. Ackerman then -- and I think Your Honour now looked at

21 the Boston Globe article, gave an interview to the Boston Globe in which

22 he stated that, having said this, "The Prosecution entered the article to

23 as evidence to show that the accused had the intent to commit the crime of

24 genocide, Brdjanin's lawyer John Ackerman said in an interview. That if

25 Randal's article were to be entered as evidence the Defence should be

Page 10287

1 allowed to cross-examine the reporter. By questioning Randal, Ackerman

2 wanted to bring up the context of the quotation. Specifically, the

3 Defence claims that Brdjanin was answering a question about the Vance-Owen

4 Peace Plan which would have divided Bosnia into cantonments, hence

5 Brdjanin's quoted remarks should be understood as descriptive not

6 prescriptive, according to Ackerman."

7 Your Honour, there was then that correspondence that was sent to

8 the lawyers acting for Mr. Randal.

9 The situation, Your Honour, is this, at the moment, that

10 apparently Mr. Randal -- I'm sorry, Mr. Ackerman on behalf of Mr. Brdjanin

11 no longer contests any of the accuracy of the quotes. The Prosecution

12 therefore would repeat its application for Your Honours to admit that

13 article as evidence and would not therefore propose to call Mr. Randal.

14 What is important, clearly, is that the Appeals Chamber must be informed

15 of what the situation actually is because it makes the whole matter

16 completely moot as it is a lot of expense has been spent on this when it

17 appears it wasn't necessary and great questions of principle are being

18 raised based on a set of facts which may be thoroughly erroneous.

19 JUDGE AGIUS: It may still be necessary.

20 MS. KORNER: So Your Honours what I'm asking now is that

21 Mr. Ackerman make it clear what his position is now in respect of that

22 article and on what basis therefore the journalist should be required to

23 attend rather than the article being admitted.

24 JUDGE AGIUS: Mr. Ackerman?

25 MR. ACKERMAN: Your Honour, this morning is a difficult morning.

Page 10288

1 And let me speak of that a bit. First of all, Rule 50 says that an

2 indictment may not be amended until the Chamber or a Judge thereof has

3 heard the parties. I made it clear this morning that I had not seen the

4 proposed amended indictment until 20 minutes or so before I walked into

5 this courtroom.

6 In spite of that, the Chamber decided to go forward on the theory

7 that I could be heard in the context of Your Honours' directing us through

8 the indictment. It may be the case that I have said everything that is

9 important to be said about that but I don't know because I still have not

10 had an opportunity to really go deeply into that indictment. And so just

11 for the record, I want to say that I believe Rule 50(A)(i)(c) has been

12 violated because there has been no meaningful opportunity for me to be

13 heard regarding the Prosecution's proposed amendment. In addition, I had

14 no notice whatsoever that the Randal issue would be brought before the

15 Chamber today. I have none of the documents involved. I have none of the

16 transcripts involved, I have none of the paperwork involved. And so I

17 feel uncomfortable discussing that in any detail at this point. I will

18 say this: Throughout this process, it has been the Prosecution's position

19 that they would rather have before you a misleading account of what

20 happened at that meeting rather than a true account of what happened at

21 that meeting. The article written by the other journalist is a full

22 account setting both the context of that meeting and setting forth what

23 Mr. Brdjanin was asked and what he said. It is the account which gives

24 you the truth of what was going on and with that account, the Prosecution

25 can then not argue that it has anything to do with this case. The only

Page 10289

1 way the Prosecution can argue that it has anything to do with this case is

2 if the Randal article comes in, which is incomplete and does not set the

3 context. So that's the first thing. I have no objection to the article

4 the other journalist wrote coming in because it is complete. And that's

5 the evidence that should be before Your Honours. Now, the second thing.

6 Ms. Korner complains about my e-mail to the lawyers representing Randal.

7 That e-mail was designed to correct what was a misleading impression that

8 was being given to the Appeals Chamber by the Prosecutor, and I thought it

9 was outrageous and inappropriate for the Prosecutor to so mislead the

10 Appeals Chamber and I therefore sent an e-mail to the lawyers for Randal

11 saying the Prosecution's assertion that there is no other source for this

12 evidence is not true. And they are misleading the Appeals Chamber by

13 saying that because I have already told the Prosecutor that I would accept

14 the article written by the other journalist. It is an acceptable source,

15 another source, of that evidence and it's the appropriate source of that

16 evidence. And now for Ms. Korner to come in here today and accuse me of

17 some kind of wrong doing I find outrageous. The wrong doing was on her

18 part for misleading the Trial Chamber to the proposition that there is no

19 other source of this evidence. There is another source.

20 JUDGE AGIUS: Not the Trial Chamber the Appeals Chamber.

21 MR. ACKERMAN: The Appeals Chamber. And I felt compelled to let

22 the lawyers for Randal know about that. And that that was misleading and

23 that was an untrue statement to the Appeals Chamber. I do not want to

24 discuss it further without consulting the documents and if you want me to

25 discuss it further after having done that, I'm perfectly willing to do so.

Page 10290

1 JUDGE AGIUS: Ms. Korner?

2 MS. KORNER: I'm not going to respond to the sort of invective

3 that's being used because it's unnecessary. But it is actually a very

4 simple question and I think it is one that needs to be answered straight

5 away before the Appeals Chamber spends any longer on this. Is the

6 accuracy of the quotes that appear in Mr. Randal's article a subject

7 matter of dispute? That's the only question I'm asking, and that,

8 Mr. Ackerman, regardless of anything else, must be able to answer and he

9 appears to have already answered it in the e-mails but it must be put on

10 record.

11 JUDGE AGIUS: Yes. Assuming that stage is reached and surpassed,

12 it seems to me, from what I have read, that in any case, Mr. Ackerman

13 would require the presence of Mr. Randal here for cross-examination. At

14 that point in time, or should that be so, is it your responsibility, is it

15 the Prosecution's responsibility, to procure, assuming that the article

16 itself is first admitted in evidence, would it remain your responsibility

17 to bring forward Mr. Randal to be cross-examined by Mr. Ackerman?

18 MS. KORNER: No, Your Honour, it wouldn't, because as I said, our

19 interest was only that the article was admitted and that the accuracy of

20 the quotes was not in dispute. Thereafter, if Mr. Ackerman wished to

21 secure the attendance of Mr. Randal, it would be a matter for him. We are

22 only required to call evidence -- to call witnesses if we want to put in

23 that witness's evidence.

24 JUDGE AGIUS: Exactly.

25 MS. KORNER: And we don't.

Page 10291

1 JUDGE AGIUS: I'm trying to make things clear because at that

2 point in time, the conclusion, if what you have just stated is correct,

3 the conclusion would be twofold. Number 1, that the whole process of

4 subpoenaing Mr. Randal for the purposes mentioned or indicated in that

5 subpoena would no longer hold water.

6 MS. KORNER: Correct.

7 JUDGE AGIUS: Number 2, there may still be the need for a subpoena

8 to be issued against Mr. Randal if Mr. Randal refuses to turn up to be

9 cross-examined by you on whatever it is you want to cross-examine him

10 upon. And that would potentially bring us back to square one. So

11 Mr. Ackerman?

12 MR. ACKERMAN: Well, Your Honour, if we are talking about

13 resources and the efficient and proper use of resources, we should leave

14 the matter as it stands because it makes no sense to restart this whole

15 process and go through all of that all the way up through the Appeals

16 Chamber again because Mr. Randal will again oppose the subpoena.

17 JUDGE AGIUS: I think -- I think, I don't know, I don't want to

18 overstep in any way, but as I see it, we could be really wishful thinking,

19 doing some wishful thinking that this may be solved in the way that maybe

20 has been understood or has been suggested because in reality, if I read

21 you well, irrespective of the position that you are taking vis-a-vis his

22 article as a stand-alone article or in juxtaposition with the article of

23 the other journalist, as I read you, you still want to cross-examine the

24 witness.

25 MR. ACKERMAN: If his article is going to come into evidence, Your

Page 10292

1 Honour, his article is less reliable than a 92 bis statement. I can have

2 those people brought for cross-examination.

3 JUDGE AGIUS: But then you're forcing my hand and I will

4 essentially come to the conclusion that I need to give you a time limit

5 within which you have to confirm officially to this Trial Chamber what you

6 may have written in the e-mail, and specifically asking you to declare

7 whether you are accepting on the face of it the correctness of the quotes

8 attributed to your client reserving of course any further right you may

9 have to cross-examine the witness on whatever you would like to

10 cross-examine him on, because that will impact on the possible decision

11 that we may need to take as to whether to allow the document in evidence

12 or not. And also, irrespective of whether there should be the other

13 article that you refer to, of X, in other words.

14 MR. ACKERMAN: I think I've said all I can safely say about that

15 right now, Your Honour.

16 JUDGE AGIUS: All right. Then --

17 [Trial Chamber confers]

18 JUDGE AGIUS: So, Mr. Ackerman, it is the decision of this Trial

19 Chamber to give you until 11.00 of tomorrow morning to file a declaration

20 specifying whether you still contest the accuracy of the quotes attributed

21 by Mr. Randal in his article to your client, and secondly, should you no

22 longer contest the accuracy of those quotes, whether you require the

23 attendance, the presence, of Mr. Randal here for the purposes of

24 cross-examining him on whatever you think you may need to cross-examine

25 him upon.

Page 10293

1 And following that, we will communicate the -- your statement then

2 to the Appeals Chamber. We are not going to -- I'm not going to entertain

3 any further arguments on respective accusations of misleading, et cetera,

4 so that is being left apart.

5 Now, I have missed -- one moment.

6 JUDGE AGIUS: [Microphone not activated] Would you like to raise

7 any further matters?

8 MS. KORNER: Your Honour, a couple, if I may, the first is this.

9 Mr. Ackerman was -- e-mails are the topic of the moment, sent an e-mail by

10 us to the United States last week requesting an answer about two of the

11 Rule 92 bis witnesses that he had not objected to but that objection had

12 been made on behalf of General Talic. That is 7.191 and 7.192. And

13 again, Your Honours, because we are trying to organise witnesses, Your

14 Honours ordered that each appear for cross-examination, limited to one

15 hour, but there was, as I understood it, no objection on behalf of

16 Brdjanin to these witnesses so we would like to confirm that that still

17 stands, and that they can be entered under Rule 92 bis.

18 JUDGE AGIUS: Mr. Ackerman?

19 MR. ACKERMAN: I don't know why this is being brought to your

20 attention, I discussed it with Ms. Korner and Ms. Gustin this morning and

21 I told them that I had left these in Texas and that if they would tell me

22 I would look at them and let them know today what my position was. I

23 don't know why it has to be brought to your attention.

24 JUDGE AGIUS: So I take it you'll be acting on this and that you

25 will be cooperating with him again. Thank you.

Page 10294

1 MS. KORNER: Your Honour, then, this, Your Honour promised, said

2 that you would let us know about this November -- these November dates.

3 JUDGE AGIUS: Yes. I have not discussed that with my colleagues

4 as yet. I promise you we'll come back to you on this later on this week.

5 MR. ACKERMAN: Well, let me just make sure that I make it clear

6 that I would object strongly to any change being made in the schedule. I

7 have matters scheduled in the United States, including some medical

8 matters, during that time, and I see no reason for changing it. I think

9 we are shortening up the trial a great deal with the severance and I don't

10 think that we need to recover time, and I would strongly urge that the

11 schedule as published be followed.

12 MS. KORNER: Well, Your Honour, it's entirely a matter for Your

13 Honours but I would say this. The idea of co-counsel is that one counsel

14 has to be absent, the other counsel can take over and indeed Your Honour

15 has confirmed with Mr. Ackerman and I think it was Mr. Zecevic at the

16 time, that if they had been to be absent someone else could take over.

17 That's all I want to say on that.

18 JUDGE AGIUS: All right.

19 MS. KORNER: Your Honour --

20 JUDGE AGIUS: Yes, Mr. Ackerman?

21 MR. ACKERMAN: Well, there is this -- I just have to say this.

22 There is this proposition that has been asserted a few times by the

23 Prosecutor that the idea of co-counsel is that there will be somebody to

24 take over if one or the other can't be here. If you look at the directive

25 of assignment on counsel, the idea of co-counsel is to be provided in a

Page 10295

1 case that is sufficiently complicated that it requires two attorneys to

2 handle it. The directive assumes that co-counsel will not be provided in

3 every case but only in those cases that are sufficiently complicated to

4 require two lawyers to handle it and it never in the directive or in any

5 other writings that have come from the registry or the Tribunal, as far as

6 I know, has it been seen as a tag-team situation with co-counsel -- if one

7 is absent, the other can be present. That can happen on occasion, there

8 is no question about it, but that's not what the idea was. That's not why

9 it was instituted.


11 MS. KORNER: Your Honour, it's a matter for Your Honours I just

12 wanted to know so we can organise witnesses.

13 JUDGE AGIUS: It is indeed.

14 MS. KORNER: Finally, Your Honours, it's this, it's along the same

15 lines of what Mr. Ackerman has just been saying. Is it Your Honours'

16 intention to limit the time in which the Prosecution will be allowed to

17 present its case? Because that is something we must know.

18 JUDGE AGIUS: Maybe again that is something that I have on my

19 agenda to discuss with the other two judges. And it in addition to what

20 you have just stated, we may have news to communicate to you later on with

21 regard to Prijedor, giving that substantial amount of evidence is -- has

22 been and still being given in the Stakic case.

23 MS. KORNER: It's finished, Your Honour.

24 JUDGE AGIUS: It's finished?

25 MS. KORNER: Yes, Stakic closed its case last Friday.

Page 10296

1 JUDGE AGIUS: So we need to discuss amongst ourselves first and

2 then we will -- we may eventually come to the conclusion of limiting your

3 time. However, before this is the last point that I had on my agenda

4 gentleman which I was going to refer you to. When we last met it was

5 understandable and we wouldn't have considered it to be otherwise

6 possible, to have some time during which you would reorganise sort of your

7 case now that General Talic is no longer in it. And this last week was

8 supposed to serve precisely that purpose. It didn't -- we didn't mean to

9 say, and I suppose you didn't mean to take it that this week would be

10 sufficient, would be enough, but it would be the beginning of a process,

11 an ongoing process, which you would undertake to realign the whole

12 strategy, number of witnesses, et cetera.

13 I think you now owe us some kind of an indication as to whether

14 the exercise -- this exercise that you should have started during the past

15 week is indicative of any substantive or substantial change in the

16 expectations or forecasts of this Tribunal with regard to the duration and

17 progress of this case.

18 MS. KORNER: Your Honour, as Your Honour rightfully said, we

19 spent a goodly proportion of last week when we weren't or when I wasn't in

20 the Appeals Chamber, considering how to present this case. We have

21 reached certain preliminary conclusions, particularly in respect of

22 whether we now proceed to call evidence in relation to all the

23 municipalities. We have already I think told Your Honours and the Defence

24 that we were reducing the amount of evidence for certain municipalities

25 that would be reduced to one or two witnesses. But it's I'm afraid a bit

Page 10297

1 of a chicken and an egg situation. In other words we need to know for

2 sure whether we are going to be told your case must end by a certain date

3 because in each case, the difficulty is that there is cogent evidence, we

4 would submit, because we have reached certain preliminary conclusions and

5 we hope it to finalise them today, after Your Honours have sat. Can I

6 just say this about Prijedor, though? The whole way it's developed is

7 highly unfortunate that these witnesses have been testifying, some of them

8 for the second or third time in Stakic. But it is we would submit really

9 one of the most important municipalities that Your Honours are going to

10 hear about. We would say that if anything is genocide, what happened in

11 Prijedor was genocide. And we have the same problem as to how we are

12 going to deal with this as indeed, and I accept entirely, does

13 Mr. Ackerman, who has to look through transcripts of all these witnesses'

14 testimony. But I don't know what Your Honours have in mind on that but we

15 would submit that we should be permitted to call the evidence that we've

16 listed. It's a culling already of a great deal of evidence, but it really

17 is an important municipality.

18 As to any other aspects of this case, it will make a difference,

19 it's rather more difficult to formulate the precise method of doing it

20 without longer time which I'm not asking for any time off, we will deal

21 with it in the periods when we are not in court, exactly to what extent we

22 need the military evidence in the same fullness that we would have

23 certainly called it were General Talic an accused in this trial. For

24 example, I can say straight away it's highly unlikely that the expert

25 military witness who is listed will be called. But for the moment, all we

Page 10298

1 can do is say that certainly Kljuc will proceed as anticipated and we

2 would wish to proceed with Prijedor in the same way. But Your Honour,

3 anything else, I think really, we have to know whether we are going to be

4 given, as it were, a time limit.

5 JUDGE AGIUS: Mr. Ackerman?

6 MR. ACKERMAN: Your Honour, let me just -- I think I've said it

7 before but I want to say it again. Prijedor is a potential nightmare for

8 us in the sense of the enormous amount of material that's available for

9 each of the witnesses, the Prosecutor intends to call. And I haven't yet

10 figured out how we are going to get through that material and be prepared

11 to cross-examine those witnesses at the time they come. It may very well

12 be that that schedule break that we have in November would be a good time

13 to get through a large portion of that material, at least. It certainly

14 can't be done while I am busy preparing for each witness as we go on with

15 the trial.

16 But it's a monumental undertaking and when Your Honours see the

17 amount of testimony that has already been taken from some of these

18 witnesses, you will understand what I'm talking about. And I couldn't

19 possibly ethically not go through that material before I cross-examine any

20 of these witnesses so I don't know how we are going to work that out but

21 it's something that I need to you understand is a big problem.

22 JUDGE AGIUS: How many witnesses of Prijedor, I mean, in addition

23 to the witnesses that have given evidence or let's -- let me phrase it in

24 a different manner. Do you intend to bring forward all the witnesses that

25 have given evidence in Stakic? Or some of them?

Page 10299

1 MS. KORNER: No, Your Honour, some. There is a list that's

2 already been prepared, I'm not sure we've handed it in. There are I think

3 only about off the top of my head, three or four witness who have never

4 testified before. Every other witness has testified in at least one

5 trial.

6 JUDGE AGIUS: So there is a number of witnesses that have

7 testified in Stakic who you want to bring over.

8 MS. KORNER: Yes.

9 JUDGE AGIUS: To testify here. There is a number, a small number

10 of witnesses, that haven't testified in Stakic that you would like to

11 produce.

12 MS. KORNER: But have testified in one of the other cases.

13 JUDGE AGIUS: All right.

14 MS. KORNER: As I say, Your Honour, I think there are literally

15 only about three or four that have not testified before.

16 JUDGE AGIUS: Is there anyway we could proceed by applying any of

17 the existing provisions in the rules of guaranteeing in any case and in

18 each case a cross-examination to the Defence while doing away with the

19 need of bringing forward the witness to testify in chief? In other

20 words --

21 MS. KORNER: Put the transcripts in?


23 MS. KORNER: I think that would be perfectly possible. It's one

24 of the solutions we were thinking of, if that was acceptable, the

25 transcript would go in with any -- some of the witnesses will give

Page 10300

1 additional evidence which was not adduced in the Stakic case.

2 JUDGE AGIUS: With the understanding that should there be anything

3 in the transcripts, in the Stakic or in any other case, any reference to

4 Mr. Brdjanin, that is redacted.

5 MS. KORNER: So the witnesses would have to give that evidence

6 orally before Your Honours?

7 JUDGE AGIUS: Yes. If we could live with that, we would

8 definitely be prepared to give a limited time within which, because

9 obviously the Defence will have to go through the documentation, would

10 still spare us and save us a lot of time in examination-in-chief, if that

11 is something that you could agree upon. Something that we are obviously

12 going to think about, and this is what I meant when I said I need to

13 discuss -- this is an item that I have on the agenda for discussion with

14 my two colleagues.

15 MS. KORNER: Well, Your Honour, the other method of course is for

16 Your Honours to take note within the trial of adjudicated facts.

17 JUDGE AGIUS: Yes, that is another option that we have. This is

18 why, if you refer to what I said a minute ago, to the various options that

19 are provided under the rules. That is another option.

20 MS. KORNER: Your Honour, so far Rule 94 really hasn't been used

21 at all but it seems to me as I think we said a long time ago, for example,

22 in respects of Keraterm, I think all the other cases, save for Tadic that

23 come from this area are still awaiting appeal. But in the case of

24 Keraterm there was a plea, and if it could be -- if Your Honours were to

25 take note and the Defence didn't wish to challenge the facts that are

Page 10301

1 were -- the agreed facts of that plea, that would save obviously having to

2 call any witnesses at all.

3 JUDGE AGIUS: Agreed facts in a plea, I wouldn't -- I would rather

4 be cautious about.

5 MS. KORNER: Well, Your Honour, but it was incorporated into the

6 judgement, so it's adjudicated facts.

7 JUDGE AGIUS: It is an adjudicated fact because the two parties

8 agreed upon them. But as far as Brdjanin is concerned, that would be what

9 in Latin my ancestors would say, res inter alios acta something that has

10 been agreed upon by others with whom he has got no association. Yes, you

11 have, because you were a party, the Prosecution.

12 MS. KORNER: Well, Your Honour, can I just say this? Taking

13 Mr. Ackerman's point, if the answer is that he won't -- we anticipate

14 starting Prijedor at the end of this month, give or take.

15 JUDGE AGIUS: I would expect you to, yes.

16 MS. KORNER: Therefore, we haven't yet notified any of the

17 witnesses when they are required to attend it. At least I don't think we

18 have but if Mr. Ackerman is saying that he wants to break in November to

19 look at all of that, and wants us not to call any evidence on Prijedor,

20 then we will have to skip Prijedor again and move on to one of the other

21 municipalities we know definitely we will still be calling evidence on.

22 JUDGE AGIUS: That could also be another alternative.

23 MS. KORNER: But again we need to have that very effectively we

24 need to know by tomorrow if Mr. Ackerman is going to say because of the

25 huge amount of documentation, I won't be in a position to deal with it

Page 10302

1 until after the November break.

2 JUDGE AGIUS: By tomorrow, Mr. Ackerman has still got to read the

3 Randal papers, which I hope he has here in The Hague and not left back in

4 Texas.

5 MR. ACKERMAN: They are here, Your Honour, and I certainly will

6 have that done by 11.00 tomorrow. With regard to this Prijedor issue,

7 just off the top of my head, I see absolutely no reason that I would

8 oppose the transcripts as you have redacted, as you've suggested, coming

9 in as the Prosecution's direct evidence with whatever additions Ms. Korner

10 needs to make. In other words we don't have to repeat what's already

11 been said in Stakic to Your Honours just to take up time. As long as I

12 have a full opportunity to cross-examine. With regard to getting through

13 the material --

14 JUDGE AGIUS: Sorry, Mr. Ackerman, I know I'm doing something a

15 little bit abrupt but I would like to stop you here and add something. We

16 all know that there may also be in those transcripts, in that evidence,

17 evidence directed against Stakic which may not be exactly desirable to

18 retain, because it may shed -- it may create an environment, an

19 impression, that may not be helpful to Mr. Brdjanin unless it is relevant

20 to Mr. Brdjanin, okay? So that is also something that you may meet

21 together upon and if there is agreement, I'm sure there will be reference

22 specific reference to Mr. Stakic that we don't need to have in the

23 transcripts. And there may be references to Mr. Stakic that we may need

24 to retain in the transcript. So this is, again, another piece in the

25 exercise that I would like you to undertake together.

Page 10303

1 MR. ACKERMAN: I can tell Your Honour that I have already started

2 the process of going through that material. I'm basically finished with

3 one of the witnesses already. But what I now realise if we are going to

4 do that, that I need to do, is go back through that process again and just

5 note those parts that you just talked about that are totally irrelevant to

6 the Brdjanin case and probably should be redacted along with any reference

7 to Brdjanin. Chances are we can get through that. I think we could

8 probably do that quicker than we could actually bring the witnesses here

9 and have them sit here for two or three days while the direct is

10 repeated. I think it's a good idea and I think we can probably pull it

11 off.

12 JUDGE AGIUS: Definitely, definitely. So we will be meeting in

13 the course of this week to decide on this -- these issues. It would be

14 very helpful to us if you could also meet in the meantime and at least

15 agree -- stick to Prijedor for the time being -- agree on principle, in

16 principle, that we could adopt this procedure, in other words having the

17 transcript, the evidence given by these witnesses in other cases admitted

18 with redactions as the examination-in-chief, meaning also that you still

19 have a right to put some additional questions should that be necessary,

20 should you feel the need for those, and of course, reserving the

21 cross-examination for the Defence in each and every case, unless that is

22 waived because I may also figure that there may be some instances where

23 cross-examination is not needed. Maybe, I don't know, but I mean that --

24 MS. KORNER: Well, Your Honour, we will be putting in, in any

25 event, we haven't yet served the motion with the Prijedor Rule 92

Page 10304

1 witnesses. In fact the whole thing may become a slightly mixed exercise

2 because it's the same thing for most of them. It will be transcripts that

3 we want to enter into evidence.

4 JUDGE AGIUS: There may be a problem should this arise. I would

5 imagine that some of these witnesses gave evidence in closed session in

6 Stakic and in others?

7 MS. KORNER: I think, no, anything I'm sorry, for the witnesses

8 we have intended to call we have orders from Stakic for disclosure. We've

9 dealt with that, sorry. We've dealt with that, Your Honour.

10 JUDGE AGIUS: All right.

11 MS. KORNER: When we knew that we were going to use it, with one

12 exception I think there is still one outstanding we need to go back to

13 Judge Schomburg about.

14 JUDGE AGIUS: I'm asking you because in my mind I had that

15 impression but I wanted confirmation of it. Witnesses giving evidence in

16 other cases, is it the same or do you require --

17 MS. KORNER: Any -- no, Your Honour we have obtained from all

18 other Trial Chambers where these witnesses testified even the non-existent

19 Tadic one for which we had to apply to Judge Jorda the orders for

20 disclosure.

21 JUDGE AGIUS: Okay. So if -- I suggest you try and meet as early

22 as you can, without any involvement of the Trial Chamber or its staff for

23 the time being, then if you reach some kind of agreement, may I kindly ask

24 you to incorporate it into -- in a joint memo to the Trial Chamber, and if

25 there are points on which there is disagreement, then please indicate

Page 10305

1 those as well in the memo to the Trial Chamber so that if necessary, we

2 will reconvene -- we will either discuss them in -- during a normal

3 session or we will reconvene another short Status Conference and discuss

4 them in the Status Conference?

5 MS. KORNER: Yes, can I just ask one last question? I think I've

6 had it confirmed but we have had so many different times of sitting and

7 days of sitting it is not possible, as I understand to find a court to

8 sit this Friday.

9 JUDGE AGIUS: No. Apart from the fact I wouldn't like to go

10 public in this.

11 MS. KORNER: I think you are public.

12 JUDGE AGIUS: But can we go into closed session for one minute or

13 private session for one minute?

14 [Private session]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 10306

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [Open session]

10 JUDGE AGIUS: So we would very much appreciate if you could find

11 some time and meet on this, come back to us with points of convergence and

12 points of divergence. If necessary, we will intervene to make you get

13 nearer to one another on this, Prijedor in particular, because I am sure

14 that we will economise on the Tribunal's resources and on time

15 considerably if we resort to this procedure. Thank you.

16 MR. ACKERMAN: Your Honour, my guess is that once we break, I can

17 walk over to Ms. Korner's table over there and we will agree on that

18 procedure. The thing that will cause trouble, and that the Chamber will

19 no doubt have to become involved in, is the redactions because we probably

20 won't agree on all of those.

21 JUDGE AGIUS: But we can start with the first witness,

22 Mr. Ackerman, that is an ongoing process. That is an ongoing process. I

23 mean, we would be in a position to contribute there as well because

24 although the whole idea is not to stop, bring in the bulk of this evidence

25 and go through it as a first exercise, we will do that as we go along,

Page 10307

1 witness by witness. The important is perhaps the first witness, what is

2 important. I mean, provided we have sufficient time limit or day or two

3 to go through that evidence, and whatever needs to be redacted, if there

4 is no agreement amongst you, will be redacted by the Trial Chamber taking

5 the safest of -- obviously trying to be -- but without prejudicing the

6 rights and the interests of the Prosecution. May I point out that any

7 cooperation between -- forthcoming from the Defence in this context will

8 not be forgotten. It will be remembered as cooperation.

9 So now before bringing the Status Conference to an end, are there

10 any further points that you would like to raise?

11 MS. KORNER: No, and as I understand it Your Honours are going to

12 let us know when you're ready to give a judgement?

13 JUDGE AGIUS: Yes, exactly.

14 Mr. Ackerman, I suppose that I will ask you the question, are you

15 aware of any complaints that your client might have regarding his state of

16 health or condition of detention?

17 MR. ACKERMAN: I'm not aware of any. You can ask him if he has

18 any. I don't think he does but he is certainly free to state them.

19 JUDGE AGIUS: I won't ask you if you are happy but I will just ask

20 you whether you have complaints, any remarks or complaints related to your

21 state of health or the conditions in which you are being kept, detained,

22 at the detention unit.

23 THE ACCUSED BRDJANIN: [Interpretation] Just now, I have none, Your

24 Honour.

25 JUDGE AGIUS: So the Court now stands adjourned. This Status

Page 10308

1 Conference is over.

2 And we are immediately reconvening as a Trial Chamber and I am

3 going to proceed with the oral decision that I promised you. We are not

4 in closed session. We are in open session. We are going to proceed now

5 with your oral decision. I've got some points here from which I dictated

6 to my legal assistant earlier on. It's not to be taken as a written

7 decision. It's an oral decision.

8 So, this Trial Chamber is seized of Prosecution's request for

9 leave to amend the indictment. This specific request was filed on the 3rd

10 of October and we are also seized of an objection raised by Radoslav

11 Brdjanin, the accused in this trial, an objection to proceeding with this

12 trial under the current indictment. Needless to say, the two requests

13 converge on an essential element, namely whether the current indictment

14 should be amended or not.

15 Before proceeding any further, I would also like to add that we

16 have read and considered the Prosecution's response to the objection of

17 Radoslav Brdjanin to which I have just referred.

18 In our considered opinion, the points that need to be addressed

19 and decided are the following. Number 1, whether any or all of the

20 suggested amendments to the fourth amended indictment ought to be accepted

21 or not, approved or not. The Trial Chamber has heard submissions in this

22 regard during the Status Conference of today and comes to the following

23 conclusion. May I also points out that when I say suggested amendments, I

24 am referring to both your suggested amendments and those which are being

25 suggested by the Defence.

Page 10309

1 As a result of the decision of this Trial Chamber to sever the

2 trial of Radoslav Brdjanin from that of General Momir Talic, the need has

3 undoubtedly arisen to amend the current indictment. Amend it in such

4 a way as to exclude from it any specific indication that could lead to

5 understand that General Talic continues to be charged under it.

6 The Trial Chamber, however, sees no validity in the submission of

7 the Defence for Brdjanin that the removal of any mention of General Talic

8 from the indictment necessarily leads to the consequence or has as a

9 consequence the need to have deleted from the indictment also all

10 references to him, his alleged membership in the ARK Crisis Staff, his

11 command position in the military, and indeed, as has been suggested

12 earlier on today during the Status Conference, the military component of

13 the indictment itself.

14 There is no validity in our considered opinion, in the argument

15 that as a result of General Talic's removal from this case, the substance

16 of the accusations, the charges, brought against Brdjanin ought or need to

17 be impacted. The essence of the indictment is that there was a joint

18 criminal enterprise involving the political, the military and the police

19 sectors, in which Brdjanin was involved and this cannot be changed.

20 Arguing that singling out General Talic should not be allowed now that he

21 is no longer a co-accused in this case is not, on its own standing, a

22 valid argument and can only serve as a basis for having possibly inserted

23 in the indictments or in parts of it additional names, particularly of

24 other persons, allegedly involved in the joint criminal enterprise, but

25 this is not what is being sought and at the present moment or what this

Page 10310

1 Trial Chamber is being asked to do.

2 The first decision that this Trial Chamber therefore comes to is

3 to accept and approve the proposed amendments to the fourth amended

4 indictment, namely those proposed by the Prosecution in its request for

5 leave to amend the indictment, to which I referred to earlier. This is

6 being done by this Trial Chamber pursuant to Rule 50(A)(i)(c). The Trial

7 Chamber does not see that it would be fit and proper to include in the

8 indictment any further amendments, namely any of the amendments that have

9 been suggested by the Defence for Radoslav Brdjanin, except in so far as

10 these may converge with the amendments that are being approved.

11 Secondly, in terms of Brdjanin's objection to proceeding with the

12 trial under the current indictment, the Trial Chamber is being asked to

13 confirm that following the amendments to the indictment, he is entitled to

14 a time limit in which to file preliminary motions or pleas pursuant to

15 Rule 72 as provided in Rule 50(C). Brdjanin claims that he should be

16 given this right even if the amended indictment does not contain new

17 charges or any new charges. He contends that this would still be required

18 and he would be entitled to it in the interests of justice. The Trial

19 Chamber has no option but to reject this request. First, because such

20 time limit is allowed by the rules and applicable only if and when new

21 charges are introduced in the indictment, which we see, we understand, is

22 not the present case.

23 Secondly, because we as a Trial Chamber fail to see how the

24 interests of justice can be better served if such an opportunity is given

25 to the accused Brdjanin in the present circumstances.

Page 10311

1 The Trial Chamber has no doubt at all that the charges brought

2 against Brdjanin remain essentially what they have always been since the

3 fourth amended indictment was approved in December of last year.

4 The accused Brdjanin has also asked that the parties be invited to

5 make submissions on which evidence from the Brdjanin-Talic case is

6 relevant to his case and should be incorporated now in the records of his

7 case for the purpose of proceeding with his -- forward with his trial.

8 The Trial Chamber sees no point in extending any such invitation to the

9 parties, who are free to come to any agreement on this matter amongst

10 themselves if they want to or if they feel the need for it. The Trial

11 Chamber does not at this point see the need to give any directions to

12 either of the parties in this context.

13 The last request of the accused Brdjanin is that the case be

14 stayed as far as the receipt of evidence is concerned until a new

15 indictment has been filed and approved by the Trial Chamber or a Judge

16 thereof, and until accused Brdjanin has been able to exercise whatever

17 rights the rules and justice may provide him with regard to the new

18 indictment. The Trial Chamber has no option but to reject this request,

19 which in part is based on the fact of the prior filing of a new

20 indictment. This now, on the basis of this decision, is no longer a

21 problem. And in part, on unspecified possible rights which, as things

22 are, rebus sic stantibus cannot serve as a basis for such a request.

23 We therefore provide as follows: Pursuant to Rule 50(A)(i)(c) and

24 Rule 54 of the rules, we grant the Prosecution's request for leave to

25 amend the indictment as per the details incorporated in the same document

Page 10312

1 mentioned before. We instruct the Prosecution to file a newly signed,

2 amended version of the indictment as approved by this decision by not

3 later than 2 p.m. of today. You have it already?

4 MS. KORNER: Well, Your Honour that's the trouble. We have only

5 got the Prosecutor at the moment here. The deputy Prosecutor isn't here

6 and if Your Honours need it to be signed, I've never understood this

7 because basically you ordered the amendments.

8 JUDGE AGIUS: It's previous procedure, Ms. Korner.

9 MS. KORNER: Would Your Honours say by 4.00 today?

10 JUDGE AGIUS: That's what I had intentioned initially. I said

11 4.00 and then I decided to be a little bit --

12 MS. KORNER: I don't know where the Prosecutor is at the moment.

13 JUDGE AGIUS: Okay. So by not later than 4.00 today. Dismisses

14 Brdjanin's request to amend the indictment in so far as these requests do

15 not converge with the amendments that are being approved by this

16 decision. Dismisses Brdjanin's objection to proceeding with the trial

17 under the current -- sorry, dismisses Brdjanin's request to stay

18 the receipt, the receipt of evidence as requested in his -- in the

19 document aforementioned. And declines to extend the invitation requested

20 by Brdjanin in his motion to the parties to make submissions on which

21 evidence from the Brdjanin-Talic case is relevant to his case and should

22 be incorporated in the records of this case as it now stands.

23 That's the position. Now, it's almost 12.30. What do you propose

24 to do? What are your suggestions?

25 MS. KORNER: In relation to what, Your Honour?

Page 10313

1 JUDGE AGIUS: My suggestion is that we should wait to have the

2 indictment signed and refiled properly, and then we proceed with the

3 witness tomorrow.

4 MS. KORNER: Yes.

5 JUDGE AGIUS: That's our preference frankly because to proceed

6 otherwise would be rather undesirable.

7 MS. KORNER: Yes. Your Honour, can I just make -- mention one

8 thing? That is, Your Honour, in the beginning of the judgement stated:

9 "The Trial Chamber however sees no validity in the submission of the

10 Defence for Brdjanin that the removal of any mention from General Talic

11 from the indictment necessarily leads to the consequence or has as a

12 consequence the need to have deleted from the indictment also all

13 references to him." Just so it's clear Your Honour is saying that the

14 removal of any mention of General Talic as an accused person?

15 JUDGE AGIUS: Of course.

16 MS. KORNER: I'm sorry it's just -- it's for clarity's sake.

17 JUDGE AGIUS: The whole argument, I don't think we should really

18 amplify because this is a position you take under indictment of course

19 which the Trial Chamber obviously has to respect as part of the indictment

20 and --

21 MS. KORNER: Your Honour I just wanted -- I just wanted to make it

22 absolutely clear.

23 JUDGE AGIUS: It is as you state.

24 MS. KORNER: That's right. Thank you. And as far as Your Honour

25 goes, certainly, tomorrow.

Page 10314

1 JUDGE AGIUS: Tomorrow we start with the first witness? Is he a

2 protected witness? I went through his statement yesterday.

3 MS. KORNER: Apparently not. I can't remember who it is.

4 JUDGE AGIUS: May I suggest to you if you haven't read his

5 statement -- have you read his statement? I don't know if we could spare

6 him having to go through some of the events. If we could agree on that

7 and stick to the basics, I think it would be better. Because it's another

8 of those sad stories and having to relive those moments again.

9 MS. KORNER: Yes, Your Honour, I think Your Honour is perhaps --

10 a lot of these witnesses actually want to tell the Court what happened

11 because they fear.

12 JUDGE AGIUS: I won't stop him. I won't stop him. It's just if

13 the need arises.

14 MS. KORNER: Absolutely, yes.

15 JUDGE AGIUS: If the need arises. Yes, Mr. Ackerman?

16 MR. ACKERMAN: Well, I'm sure I wouldn't have any objection to an

17 agreement to save him having to go through some these things.

18 JUDGE AGIUS: No, of course. You have a right.

19 MR. ACKERMAN: I did want to ask, do you intend to follow up the

20 decision on the indictment with a written decision or will your oral

21 decision be your decision.

22 JUDGE AGIUS: No. If you ask for it we may entertain the idea but

23 I think the whole idea it was give an oral decision.

24 MR. ACKERMAN: I'm not asking for it. I'm just asking.

25 JUDGE AGIUS: We are not bound actually to follow up always with a

Page 10315

1 written decision. I mean the whole idea is to spare, economise on our

2 resources as much as we can and move ahead. It doesn't mean to say that

3 if you would like to ask for certification you're not being given the

4 opportunity. I mean obviously.

5 MR. ACKERMAN: I just was inquiring because of the language of

6 Rule 73 as to whether or not there would be a follow-up decision written.

7 JUDGE AGIUS: So shall we leave it at that and adjourn? I thank

8 you for all your contributions and cooperation this morning, without which

9 we would have certainly got stuck, and we will resume tomorrow morning

10 with our labours. I thank you.

11 MS. KORNER: Your Honour, I just received -- before we rise, I've

12 received a request or rather Your Honours will be getting an oral motion

13 tomorrow morning, the witness who has arrived as Your Honour knows it

14 sometimes happens is going to be requesting protective measures although

15 they are not present at the moment but I'll leave it to you. It's

16 Ms. Richterova who is calling the witness and I leave to her to deal with

17 tomorrow.

18 JUDGE AGIUS: Does it include also a request for a closed

19 session?

20 MS. KORNER: No, pseudonym and distortion.

21 JUDGE AGIUS: Okay. In the meantime, since I think I owe it to

22 Mr. Ackerman, you recall that sometime back, about a week and a half ago

23 or two weeks ago, I was complaining about the fact that the assessment

24 made by this Tribunal as to the risk involved or run by witnesses coming,

25 forthcoming from the various municipalities went back to about two years

Page 10316

1 to the year 2000 and would have felt happier if we had an updating of

2 that. But you know, I don't know if Mr. Ackerman knows that a document

3 did eventually get to us which is an update of the situation. I don't

4 know whether that has been circulated, whether it has been made available

5 to you. If not, I will instruct Madam Registrar, please, to dig up that

6 document. I have it in my chambers and my secretary knows exactly where

7 it is, and you have my permission, my authorisation to have it copied --

8 MS. KORNER: I think Your Honour it's a motion. Mr. Ackerman may

9 not -- I can't remember how long it is since he went to the States but it

10 is put in by motion, confidential, so Mr. Ackerman should have a copy.

11 JUDGE AGIUS: I don't know whether it was put by motion.

12 MS. KORNER: Yes, it was, yes, it was. It was, Your Honour.

13 JUDGE AGIUS: It is confidential for sure that's for sure.

14 MS. KORNER: But it goes to the Defence, it doesn't go to the

15 general public but it goes to the defence.

16 JUDGE AGIUS: I see. Okay. So then if you perhaps check. If you

17 don't have it Mr. Ackerman I will let you have a copy of it.

18 MR. ACKERMAN: I don't recall seeing it but it may be here

19 somewhere. There was a bunch of stuff in my box that wasn't sent to me in

20 Houston I discovered this morning. I don't know why it wasn't.

21 JUDGE AGIUS: Discrimination.

22 MR. ACKERMAN: Obviously, Your Honour, when are we sitting

23 tomorrow, are we sitting in the morning.

24 JUDGE AGIUS: We are sitting in the morning. The timetable is

25 this. I tried as much as possible to shift afternoon sittings to the

Page 10317

1 morning wherever possible because I think that helps everyone.

2 MS. KORNER: Your Honour it would help, I know we've all been

3 asking for morning sittings but the changes, the constant changes in

4 when we are sitting really do not assist on witnesses. I appreciate that

5 Your Honours kindness in trying to arrange morning sittings but we

6 expected this afternoon so as a result we have got the witnesses here to

7 give evidence this afternoon. We weren't expecting this morning until

8 whatever it was, Thursday of last week, and so just in order to organise

9 the witness schedule it helps if we can stick to a schedule.

10 JUDGE AGIUS: Okay. This morning we are sitting Monday, Tuesday,

11 Wednesday in the morning and Thursday we are sitting in the afternoon, all

12 right? Good. I thank you. And good afternoon to you.

13 --- Whereupon the Status Conference adjourned

14 at 12.31 p.m., to be reconvened on Tuesday,

15 the 8th day of October, 2002, at 9.00 a.m.