090603SE

Page 249

1 Wednesday, 3 June 2009

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.16 p.m.

6 THE REGISTRAR: Good afternoon, Your Honour. This is case number

7 IT-95-5/18-PT, the Prosecutor versus Radovan Karadzic.

8 JUDGE BONOMY: Thank you, and good afternoon to everyone.

9 Mr. Karadzic, out of respect for the attendance of Mr. Magnusson

10 who's the ambassador from Sweden, we shall deal with the matter that

11 might affect him at the outset, and that is the question of your

12 continuing search for material to support your motion about immunity and

13 abuse of process.

14 I take it you can hear me clearly and understand what I'm saying?

15 THE ACCUSED: [Microphone not activated]

16 THE INTERPRETER: Microphone, please.

17 THE ACCUSED: [Interpretation] Yes, Your Lordship, I can hear you

18 well.

19 JUDGE BONOMY: Thank you very much.

20 And, Mr. Tieger, I take it that your team is the same team as we

21 had the last time?

22 MR. TIEGER: Yes, Your Honour, correct.

23 JUDGE BONOMY: Thank you very much.

24 Mr. Magnusson, the Court is grateful to you for coming today to

25 assist us to clarify the situation because there is a fair measure of

Page 250

1 confusion entering into this, and I think it's best dealt with by a

2 simple oral exchange rather than a long-term exchange of correspondence.

3 The confusion is, I think, to some extent the result of a fairly

4 brief response that was sent to one of the lawyers assisting Mr. Karadzic

5 earlier when there was an indication that Mr. Bildt was willing to meet

6 with one of his representatives. And now there's a clear statement made

7 on behalf of the Swedish government that he's not willing to meet him.

8 Now, I'm not for a moment suggesting that there is any obligation

9 on his part to meet at this stage, but I'm trying to understand, first of

10 all, what exactly his position is. Can you assist me on that?

11 MR. MAGNUSSON: Yes, sir. Thank you very much. And I would like

12 to state then on behalf of the Swedish government that there are no legal

13 obstacles to Mr. Carl Bildt giving testimony in the case or to be

14 interviewed by representatives of the accused.

15 However, the Tribunal should be informed that Mr. Bildt is of the

16 view that to the best of his knowledge he has no relevant information on

17 the alleged immunity agreement to convey, and he therefore considers that

18 his testimony and an interview with him would serve no purpose. This has

19 already been communicated to the Defence.

20 In addition, it seems uncertain what the purpose of seeking to

21 identify such an agreement would be, considering the mandate of the

22 Tribunal and that no such agreement can be concluded with legal effect in

23 relation to crimes falling within the competence of the Tribunal.

24 Hence, it is considered that the information sought from

25 Mr. Bildt cannot be considered to be of substantive or considerable

Page 251

1 assistance to the accused in relation to a clearly identified issue that

2 is relevant to the trial. Even if the assertion of the immunity

3 agreement was correct, it would have no relevance to the question of the

4 accused's guilt or innocence of the charges against him.

5 Therefore, the request does not satisfy the requirements for the

6 issuance of a subpoena to Mr. Bildt for an interview or testimony. But

7 should the Trial Chamber consider otherwise, Mr. Bildt would, of course,

8 readily make himself available. Thank you.

9 JUDGE BONOMY: Now, that's essentially repeating what's already

10 been submitted in writing.

11 MR. MAGNUSSON: Yes.

12 JUDGE BONOMY: And the problem for me in that situation that it

13 really is an attempt to prejudge the question. You may be right in the

14 end of the day. The view expressed on behalf of your government may be

15 correct about the immunity -- alleged immunity agreement and its impact;

16 but that, in the end, is a question for the Court. And there can be two

17 perfectly respectable sides to most arguments on legal issues, and the

18 accused has advanced an argument with which your government obviously

19 would not agree but which ultimately the Appeals Chamber of this Tribunal

20 could well agree with; that remains to be seen.

21 So he is on the face of it entitled to the cooperation of all

22 states throughout the world in at least establishing the factual basis

23 for the argument he wishes to present. So I don't think we can rule out

24 the inquiry that he makes.

25 The Trial Chamber dealing with the pre-trial phase has already

Page 252

1 made one decision that indicates that what he initially submitted did not

2 appear to that Trial Chamber to amount to a case which would result in

3 immunity. However, he is presenting additional material and other

4 arguments and wishes the Trial Chamber to address the issue.

5 Now, we will have to address it. The Appeals Chamber did not

6 resolve it in the other motion where we did express some opinion, and

7 therefore there is going to be a hearing on this, whether in writing

8 or -- whether solely in writing or to some extent orally also remains to

9 be seen.

10 So some indication to Mr. Karadzic of the position directly from

11 Mr. Bildt as a potential witness would assist that process. Now, that

12 would, I think, most helpfully be done by an oral exchange, but I don't

13 suggest to you that it is absolutely essential that someone in his

14 position needs to make himself available for the purpose of interview at

15 this stage.

16 What I think would be helpful to the Trial Chamber which will

17 ultimately have to make the decision would be an indication of the

18 willingness of Mr. Bildt to disclose to those representing Mr. Karadzic

19 the full extent of his knowledge of these matters.

20 Now, before parting with this issue, I would like to hear what

21 Mr. Karadzic has to say on the subject and how the matter might be

22 progressed.

23 Mr. Karadzic.

24 THE ACCUSED: [Interpretation] Thank you, Your Lordship. I would

25 like to thank His Excellency, the Ambassador of Sweden, for the effort he

Page 253

1 has put in, but I'd also like to express my disillusionment with respect

2 to the procrastination of a meeting with Mr. Bildt.

3 And I would like to give a different example of the United States

4 of America that always makes it possible to have contacts with

5 high-ranking officials of the administration -- of the US administration.

6 And I'm wondering what's going to happen when I go into very sensitive

7 matters and ask for sensitive documents on the knowledge of governments

8 and especially the Swedish government when now I can't even be granted an

9 hour's time of talking to Mr. Bildt, especially as in the first half when

10 I left my post, Mr. Bildt dealt with the first half and then

11 Mr. Holbrooke came in for the second half, and they spent hours together

12 and days together. And I think that I have fulfilled the conditions

13 stipulated under Rule 54.

14 And I'd like to thank you, Your Excellency, for confirming that

15 the Chamber will decide upon the relevance and not the governments.

16 And I'm going to ask governments for very important documents.

17 So it's not up to them to determine whether these documents are relevant

18 or not. In my opinion, I have been asking for this hour of conversation

19 with Mr. Holbrooke for 75 days now, I mean to say Mr. Bildt.

20 Now, there are several issues and several of his statements on

21 the basis of which we concluded that he knows about this, so we're going

22 to raise those questions and ask him about it, and we're going to get

23 some answers. Whatever answer he gives will be a good answer as far as

24 we're concerned, and we'll indicate something we deem to be necessary.

25 JUDGE BONOMY: Mr. Magnusson, do you wish to respond at all to

Page 254

1 that?

2 MR. MAGNUSSON: No.

3 JUDGE BONOMY: No.

4 You can see that what's involved is a fairly brief exchange, and

5 similar meetings have been arranged with officials from other -- at least

6 one other state. There may be others. I don't know. They may not have

7 held such senior positions as Mr. Bildt does. But, nevertheless, they

8 have been authorised. They've also been the subject of orders by the

9 Trial Chamber under Rule 70, maintaining the confidentiality of that

10 material until the results of the interview have been seen.

11 And the Chamber does make orders in advance of exchanges between

12 representatives of Mr. Karadzic and government officials about the

13 material being confidential until the state agrees to its release into

14 the public domain. So there are ways of dealing with that situation.

15 It would, in my opinion at least, assist progress in this case if

16 Mr. Bildt were to agree to meet with the representative of Mr. Karadzic.

17 In the communication you filed with the Tribunal, you said that

18 Mr. Bildt would readily make himself available for an interview should

19 the Trial Chamber consider otherwise, and I can take it back to the

20 Trial Chamber. I will certainly not make a decision on my own on this

21 matter, but I would leave you to take the matter, if you will, back to

22 your government and invite Mr. Bildt to agree to meet, I think

23 Mr. Robinson, is it, Mr. Karadzic, Mr. Robinson you have in mind?

24 THE ACCUSED: [Interpretation] Yes, I do believe that that will be

25 Mr. Robinson.

Page 255

1 JUDGE BONOMY: And Mr. Robinson is a lawyer well-known to the

2 Tribunal and also to the Rwanda Tribunal. Now, if as a result of that

3 agreement can be reached on arranging the discussion and any further

4 order of the Tribunal is necessary, then it would be for Mr. Robinson on

5 behalf of Mr. Karadzic to make the application for that order to be made.

6 Now, is that an acceptable way forward, for you to discuss the

7 matter further with Mr. Bildt and invite him to let us know whether -- in

8 fact, the Chamber need not be involved if agreement can be reached, but

9 may need to be involved from the point of view of confidentiality.

10 If agreement can be reached at all, then it seems that

11 Mr. Karadzic will insist on the Trial Chamber addressing the issue. And

12 if you wanted to make any further written submission, then it would be

13 open to you to file a further written submission. But we're anxious to

14 make progress on this issue. It is an issue that's capable of delaying

15 this trial. It needs to be determined speedily now, and there will

16 always be anxiety about the likelihood of the starting date for the trial

17 being maintained as long as this issue is outstanding.

18 So I would be grateful for an almost instantaneous response, I

19 hope within the next few days.

20 MR. MAGNUSSON: Yes, sir. Of course I can bring back this matter

21 to the government, but I mean the present position of the government is

22 that if the Trial Chamber would deem it suitable or necessary, Mr. Bildt

23 would be available. So you will not then take this up in the

24 Trial Chamber; is that --

25 JUDGE BONOMY: Well, it's unusual for us to have to make orders.

Page 256

1 What would happen would be an appropriate order for the government to

2 arrange for that interview to take place. And that's something that's

3 been avoided so far in this case in relation to any other state.

4 But if you tell me that your government are content with the

5 submission that's been made, the discussion that's taken place, and you

6 leave it to the Trial Chamber; then the Trial Chamber will make a

7 decision on the strength of the material currently before it. And that

8 would be made in the next day or two.

9 But what I'm suggesting is that that course can be avoided in the

10 interest of all concerned, and I've suggested to you an appropriate

11 course to follow and invited you to at least consider that with your

12 government. But if you feel -- if you feel that's pointless, then simply

13 say so, and we will proceed to deal with it on our own.

14 MR. MAGNUSSON: No, I don't think -- I don't say that this is

15 pointless, but I will have to bring the matter back to the government of

16 course, yes.

17 JUDGE BONOMY: Well, I would be grateful if you would. But I

18 would equally be grateful for a very quick reaction.

19 MR. MAGNUSSON: Okay.

20 JUDGE BONOMY: And as I say, that can leave the Chamber out of it

21 if you can reach agreement with Mr. Karadzic or whoever acts for him on

22 this in relation to it. I'm about to move on to two other elements

23 related to the same application, and you're free to listen to the

24 exchange -- if you wish to wait and listen to the exchange on that it,

25 may of some assistance. And then you have the whole picture in relation

Page 257

1 to other organs from whom material relevant to the case is sought.

2 So if that's all that needs to be said on this subject, I'll move

3 on to the situation in relation to another part of this.

4 Mr. Karadzic, I'm moving now to the situation in relation to two

5 representatives of the United States in relation to whom you have sought

6 authority to interview them.

7 THE ACCUSED: [Interpretation] Yes, Your Lordship.

8 JUDGE BONOMY: Now, I want, first of all, to deal with an issue

9 that affects all of these applications. In relation to the United States

10 orders under Rule 70 have been maintained -- have been made to maintain

11 the confidentiality of the material. And that has happened in light of

12 applications you've made for Rule 70 to be applied at the request of the

13 United States.

14 Each time one of these applications has been made, we have had to

15 check with the United States the status of the exchange between your

16 representative and their representative because your application has not

17 made clear that you've reached a stage where they've agreed to the

18 interview and simply require an order of the Tribunal to protect the

19 material. So in future, please attach to any such application copies of

20 the correspondence which will demonstrate that you've reached an

21 appropriate stage for such an order to be made.

22 Now, in the case of the two that you've recently applied for, the

23 response that we have from the United States indicates that you haven't

24 quite got to that stage, that they haven't said to you, Apply for Rule 70

25 protection and the interviews can proceed. Now, has anything happened in

Page 258

1 the last few days to change that?

2 THE ACCUSED: [Interpretation] I received a response this morning

3 from the Government of the United States of America with respect to two

4 individuals, the ones you were talking to - and I don't want to mention

5 their names - and I think that they said that it was premature to have an

6 order from the Chamber issued.

7 We are discussing the whole issue with the representatives of the

8 United States and in doing so we are learning of new names of people who

9 were present or had a role to play in this agreement between the

10 international community and myself through the mediation of

11 Mr. Holbrooke. And they are representatives of very important US

12 services, the Joint Chiefs of Staff of the armed forces, the

13 National Security Council, and so on and so forth. And it's absolutely

14 unbelievable that nobody has informed their agencies about the course of

15 those meetings because there seem to be no reports or minutes of records.

16 We expect important records and reports and the US government has

17 shown a lot of goodwill in assisting us to arrive at the truth. All we

18 need is more time to regulate all this.

19 But, as I say, apart from what I received this morning, the

20 response this morning, which says that it's premature for the

21 Trial Chamber to make an order pursuant to Rule 70, we have nothing else.

22 JUDGE BONOMY: Well, that underlines the importance of bringing

23 this to a conclusion quickly. I've already mentioned it in connection

24 with your application in relation to Mr. Bildt. I think Mr. Robinson may

25 be around the building or he may have contact with you in the next 24

Page 259

1 hours. I hope that something is done to get a final answer on this

2 because we as a Trial Chamber cannot really delay in making a decision on

3 the basis of what you can present to us. And as you know, you've got

4 freedom to supplement the motion whenever you get additional information

5 that may be relevant to it.

6 So it's in your hands to resolve the outstanding question in

7 relation to these two United States officials.

8 Now, the third aspect of this I want to turn to is that relating

9 to the United Nations itself.

10 [Pre-Trial Chamber and Legal Officer confer]

11 JUDGE BONOMY: I'm really only moving on to this to tell you what

12 has happened. You asked for the Trial Chamber's assistance in trying to

13 obtain information about communications that the United Nations itself

14 was party to in relation to this agreement. And an order was made on the

15 27th of May notifying the Office of Legal Affairs of the United Nations

16 of your request. That document ordered our Registry to notify the

17 Office of Legal Affairs and to invite them to file a written response in

18 time for this meeting.

19 The time is admittedly short, but we've heard nothing, and I have

20 at this moment nothing to report to you on that. However, you can take

21 it that the matter will be pursued urgently. And if this cannot be

22 resolved in the -- a way similar to the discussion we've just had with

23 Mr. Magnusson, then the Chamber will, again, as in that case, have to

24 decide whether to make an order or not. I'm sorry that that hasn't been

25 resolved, but hopefully it will be resolved fairly quickly.

Page 260

1 Now, is there any other matter in relation to the

2 Holbrooke Agreement that you wish to raise today?

3 THE ACCUSED: [Interpretation] Yes, Your Lordship. First of all,

4 thank you with respect to the United Nations. We know, and you can see

5 from the material that we've attached, that Mr. Holbrooke came to do the

6 job at the request of the Contact Group. The Contact Group, however, in

7 a certain sense is a United Nations organ or Security Council organ and

8 everything that the Contact Group achieved and Holbrooke himself resulted

9 in UN Security Council resolutions. So what we need is that this be

10 confirmed although we do here have auxiliary evidence of that.

11 Now, I would like to add in connection with the agreement with

12 Holbrooke the question of what the Prosecution has with respect to the

13 conversation conducted between the then-chief Prosecutor and

14 General Clark, and this is how matters stand. Since Holbrooke and

15 General Clark did not manage to withdraw the indictment against me and

16 Mladic with Mr. Goldstone, then General Clark, knowing that this can come

17 out one day, wanted to prevent this from happening and told the main

18 Prosecutor that I might refer to that but that she didn't have that.

19 Now, the OTP has told me on two occasions that they don't have

20 anything, that they don't have that, whereas we know full well that

21 Mrs. Florence Hartmann published that, she saw the transcript, published

22 it in her book.

23 And so now I would like to ask Your Lordship to prevail upon the

24 Prosecution and to investigate how this came about, whether their men --

25 whether their people were publishing untruths in their books or whether

Page 261

1 this transcript is being kept hidden by someone.

2 JUDGE BONOMY: I'm happy to turn to that now. It is an item also

3 listed on this agenda.

4 Before I do, Mr. Magnusson, that's completed the other issues

5 that would be -- that would have a bearing on your situation. You've

6 heard -- although this has a bearing on the agreement, it's nothing to do

7 with the arrangements with any particular state. So thank you very much

8 for your attendance and for your assistance, and we look forward to

9 hearing further from you hopefully in the course of this week.

10 Mr. Karadzic, the interview to which you refer states quite

11 clearly that Ms. Hartmann. Was in possession of the material to which

12 you refer. Have you asked her for it?

13 THE ACCUSED: [Interpretation] I don't think that she has this in

14 her possession as a private individual but as an official person, as an

15 employee of the Prosecution. And Mr. Clark did not talk to Ms. Arbour as

16 a private person but as the main Prosecutor with the intention to prevent

17 this truth emerging before I said anywhere that such an agreement

18 existed. Mr. Clark tried to put that to an end --

19 JUDGE BONOMY: Just hold on then. Remember that this hearing is

20 about the mechanics of handling this trial rather than the substance of

21 the trial. There may be certain issues of substance we'll turn to. But

22 the interview is said to have been on the 11th of October, 2007. Now, by

23 that time was Ms. Hartmann an employee of the Office of the Prosecutor or

24 had she left by then?

25 THE ACCUSED: [Interpretation] I think that the conversation or

Page 262

1 the interview between General Clark and Louise Arbour was far before that

2 while Ms. Arbour was the main Prosecutor.

3 JUDGE BONOMY: I understand that. That's not my question. The

4 interview that led to the publication of the piece "Behind the Curtains

5 of International Justice" was on the 11th of October, 2007. Now, at that

6 date, was Ms. Hartmann an employee of the Office of the Prosecutor?

7 THE ACCUSED: [Interpretation] I believe not. It's quite possible

8 that she wasn't, but she published this in her book, in her memoirs.

9 JUDGE BONOMY: Now, can you -- Ms. Uertz-Retzlaff, can you

10 confirm for me the date on which -- or whether she was an employee at

11 that date?

12 MS. UERTZ-RETZLAFF: Your Honour, I cannot be hundred percent

13 sure, but to my knowledge she left before I left, and I left in

14 spring 2007. So by that time, I'm quite confident that she was not.

15 JUDGE BONOMY: Now, Mr. Karadzic, the words attributed to

16 Ms. Hartmann are these:

17 "But I have the transcript of that conversation and Wesley Clark

18 did say exactly what I quoted in my book."

19 So at that time she was claiming to hold this material and she

20 was not an employee of the Office of the Prosecutor.

21 THE ACCUSED: [Interpretation] That's a problem of the

22 Prosecution. How can an employee of theirs alienate a document that

23 belongs to the OTP? What I'm asking from the Prosecution --

24 JUDGE BONOMY: That's on the face of it what she has done on this

25 occasion. So what is it that you say prevents you from asking her for

Page 263

1 the document?

2 THE ACCUSED: [Interpretation] I can ask her for that without the

3 Chamber; but if I don't get it, then I will have to ask you to issue an

4 order. But I think the Prosecution is responsible for the document that

5 belong to them. It's their job to find this document instead of simply

6 saying, We don't have it. Of course they don't have it if an employee

7 took it out of the OTP, but that was taken out illegally.

8 JUDGE BONOMY: Thank you.

9 Now, Ms. Uertz-Retzlaff, what's being suggested is that the

10 response on two occasions now by the Office of the Prosecution is

11 disingenuous because it simply says, as no doubt is true, that the -- you

12 do not have possession of this material. It's one of these issues where

13 some might say that total transparency is required, and I wonder if that

14 answer extends to saying you've no knowledge whether such a document ever

15 existed or currently does exist. Does your response go that far?

16 MS. UERTZ-RETZLAFF: Yes, Your Honour. What we actually did --

17 and when these issues came up about this document, we first did only an

18 electronic search for it because it was not relevant to us. That's why

19 we never took a position in that earlier submissions. But when you, the

20 Trial Chamber, ordered us on the 9th of April, 2008, to look for it and

21 disclose it, we then really did a very thorough search, not only

22 electronically did we search for it, but also physically did we plough

23 through files where it could have been. And there is not a single

24 indication that we ever had such a document. And that's why we generally

25 stated, We don't have it. And I don't know how Ms. Hartmann can have it

Page 264

1 if she has it. I mean, at the moment there's only an allegation that

2 there exists such a document, but we did not find any indication that we

3 ever had it.

4 JUDGE BONOMY: Now, there is one other -- that's helpful because

5 one immediate reaction to the previous response is, was it -- it might

6 have been helpful to know what efforts had been made to locate it, and

7 you're not to know that the Trial Chamber is thinking along these lines.

8 The reference is to a meeting which took place at NATO

9 headquarters between two clearly identified individuals at which,

10 according to this interview, there were representatives of the ICTY.

11 Now, it doesn't say the Office of the Prosecutor, but it does say

12 representatives of the ICTY present. Have you made inquiry to establish

13 whether such a meeting attended by anyone from the ICTY

14 Office of the Prosecutor ever took place?

15 MS. UERTZ-RETZLAFF: What we found out is that, no, there is no

16 meeting note on -- that such a meeting ever took place on that given

17 date; and we, therefore, didn't have any person to ask. If we had -- if

18 we had a notice that a meeting had taken place on that given day, we

19 could have asked the people who attended the meeting, but there is no

20 note that such a meeting took place and -- on that given day.

21 JUDGE BONOMY: Thank you. Thank you very much.

22 Now, Mr. Karadzic, is there anything further you want to say on

23 the matter in the light of that response?

24 THE ACCUSED: [Interpretation] It seems inconceivable to me that

25 there are no notes or traces of such important meetings, and I wonder in

Page 265

1 my mind what else will be missing, what else I will not get because it

2 doesn't exist. So I'm extremely surprised, both by the attitude of some

3 governments and of the OTP. I will be requesting from many governments

4 and the OTP anything and everything that can assist in establishing the

5 truth. How can such an important document be concealed? She can't --

6 Ms. Hartmann can't have made it up. It is clear that such a meeting

7 existed. And after all Ms. Arbour would have denied the existence of

8 such a meeting if it hadn't existed at the time that the report appeared.

9 JUDGE BONOMY: Well, it seems to me that you now have three

10 persons identified from whom you may seek this information, and perhaps

11 the most likely source to contact initially would be Florence Hartmann.

12 But in the face of the response you have from the Office of

13 the Prosecution, it would be very difficult - speaking for myself I must

14 say - very difficult for me to countenance an order against the

15 Prosecution any further in this matter having taken the step we already

16 took and had the explanation that's now been given.

17 So even though Ms. Hartmann may have some difficulty for whatever

18 reason in parting with a document of this nature as you indicate,

19 although at the moment that's quite difficult for me to work out in the

20 absence of more information, but even allowing for that, that doesn't

21 stop her giving you information about the existence of the document and

22 the surrounding circumstances which might help the Trial Chamber to take

23 the matter further. And you also have a reference, as you know, to

24 Louise Arbour and to Wesley Clark. So until you've got more information,

25 it seems to me there's nothing further the Chamber can do on this.

Page 266

1 MS. UERTZ-RETZLAFF: Your Honour, I just received a message from

2 our office. Florence Hartmann's last day was the 12th of October, 2006.

3 JUDGE BONOMY: Thank you very much, Ms. Uertz-Retzlaff.

4 Now, is that -- does that complete all we can do on the mechanics

5 behind the presentation of your Holbrooke Agreement motion?

6 THE ACCUSED: [Interpretation] I will do everything in my power

7 not to fatigue the -- and encumber the Chamber and to get some

8 information on my own, but certainly that will require much more time

9 rather than the OTP providing what they should have provided or asking

10 the -- Ms. Hartmann to provide that document.

11 But anyway, I will take further steps. Maybe I will address

12 Mr. Clark, Ms. Arbour, and Ms. Hartmann. If I don't obtain anything,

13 then I will be forced to ask and appeal to the Chamber to request these

14 documents.

15 [Pre-Trial Chamber and Legal Officer confer]

16 JUDGE BONOMY: I'm turning now to the issue of disclosure. At

17 the last Status Conference one issue was the damage or what was called

18 "corruption" of audio files and the question of delaying the disclosure

19 of that material which I think I agreed to. Is that matter progressing

20 satisfactorily, Ms. Uertz-Retzlaff?

21 MS. UERTZ-RETZLAFF: Yes, Your Honour. We are actually on track.

22 We are disclosing these kind of things on a rolling basis, and we are

23 definitely on track to conclude this within the dead-line given.

24 JUDGE BONOMY: Thank you.

25 And the -- just to -- for the sake of clarification on a separate

Page 267

1 disclosure matter, expert witness materials are now all disclosed; is

2 that correct?

3 MS. UERTZ-RETZLAFF: Yes, Your Honour.

4 JUDGE BONOMY: Thank you.

5 I know that you've stated the position, Mr. Karadzic, that

6 everything in this case is in dispute except the weather. But as matters

7 progress and you see what's actually presented, you may find that there

8 is material which can be agreed.

9 One area in which it does look as though there must be scope for

10 some agreement is in relation to expert investigation of burial sites and

11 deaths of alleged victims. That's quite a separate matter from how or

12 why they came to be victims. A number of the expert reports relate to

13 that subject. Do you see scope for some sort of agreement in relation to

14 experts whose valuable time can probably be far better spent continuing

15 with the expert work they do rather than attending this court?

16 THE ACCUSED: [Interpretation] First of all, I wish to say in

17 connection with the damage to documents, I cannot accept that I have

18 received everything. In the case of some expert witnesses, I have only

19 received prior statements rather than prior testimony or there is prior

20 testimony and no prior statement or report. So I wish to inform the

21 Chamber that the disclosure has not been complete. Then I also have

22 problems with opening certain documents. Simply, there's no way of

23 opening them using any of the existing programmes.

24 As far as expert witnesses are concerned, the OTP has --

25 JUDGE BONOMY: Hold on, let's do things one at a time. And

Page 268

1 before we go to the matter on which there may be some debate, can we

2 clarify, first of all, whether there is material yet to be disclosed?

3 [Prosecution counsel confer]

4 MS. UERTZ-RETZLAFF: Mr. Reid just clarified to me, there's

5 nothing open for experts; it's all disclosed.

6 JUDGE BONOMY: And as far as the corrupt material is concerned,

7 the dead-line for printing or for dealing with that and presenting it to

8 you, Mr. Karadzic, is the 30th of June. So if you believe that there is

9 specific material undisclosed in relation to any witness, then you should

10 immediately communicate that to the Office of the Prosecution and ask

11 them to deal with it. It's not something that you need to wait and raise

12 with me. Your concerns ought to be taken up directly with them.

13 THE ACCUSED: [Interpretation] I will do that. Possibly this may

14 be in some other document, but it is very difficult for me to find it. I

15 am quite certain that there are certain folders in which either the prior

16 statement is missing or prior testimony. Many people are assisting me in

17 reviewing these materials. If these documents may be in another folder,

18 then it's a big problem for me to trace them. But in future, I will

19 communicate this to the OTP and ask them to provide me with a unified

20 base so that I don't have to search through the documents.

21 JUDGE BONOMY: Thank you.

22 And in relation to the technical aspects of opening electronic

23 files and so on, then it is your right to resort to the Registry for

24 assistance in relation to that if you encounter difficulty. So what I

25 should hear is not that you have a problem, but that people are ignoring

Page 269

1 you or are not attending to your request; that's something for me to deal

2 with. But please communicate directly with those responsible for the

3 detail.

4 THE ACCUSED: [Interpretation] Thank you. I have a meeting

5 scheduled today regarding technical matters because I really can't manage

6 everything without a laptop. And the computers in the detention centre

7 are rather old and not of a very good quality.

8 I should now like to move on to the other question you had

9 raised. I do not exclude the possibility that we might come to an

10 agreement with the experts on certain issues, but I cannot say that until

11 my 26 experts don't study the reports of the 26 experts of the OTP. So I

12 will ask the Registry to provide finances for my 26 experts, and once

13 they supply me with the relevant information, it is quite possible that

14 we will save time with respect to certain facts.

15 So this is something that I'm now saying it's not just the

16 weather that we can agree on but maybe some other things. But we need to

17 wait for the counter experts, that is, my experts, to review these expert

18 reports. And when I receive the findings of my experts, we will address

19 the Chamber with written submissions and relative conclusions regarding

20 this issue.

21 JUDGE BONOMY: Thank you.

22 Ms. Uertz-Retzlaff, in the applications in relation to

23 adjudicated facts, are there substantial areas that are the subject of

24 expert evidence on which you seek a recognition of -- a judicial notice

25 of adjudicated facts? Or does that not arise?

Page 270

1 MS. UERTZ-RETZLAFF: I don't think so that there are too many.

2 The adjudicated facts relate, actually, to the crimes as such.

3 JUDGE BONOMY: Yeah.

4 Well, Mr. Karadzic, it is possible, and I think it's appropriate

5 in this case, for the Defence to engage actively experts at an early

6 stage rather than waiting until much later in the trial so that

7 identification can be made of areas of evidence where experts can be

8 spared coming here.

9 So you will have the support of the Trial Chamber in principle in

10 trying to persuade the Registry to recognise the need for early

11 engagement of experts. But we have to be realistic in this area. The

12 Tribunal's not here simply to fund the work of scientific experts. We

13 have to make sure that the resources that are used are used to a good

14 purpose where there's a real dispute. And there are many areas of the

15 expertise involved in this case where it's obvious to me there will be a

16 genuine dispute, but this particular one that I'm discussing with you,

17 scientific and forensic science evidence is not one.

18 So I was hoping that you would not necessarily have to engage the

19 same number of experts as the Prosecution. It just so happens that they

20 have different people who have investigated different cases or different

21 deaths for reasons which relate to the circumstances at the time. But

22 when it comes to reviewing the work of experts from the past, it is much

23 easier to condense that into one exercise for one expert or possibly a

24 limited number of experts. So you can take it that the Chamber will,

25 following this meeting, give some further thought to encouraging the

Page 271

1 early engagement or even ordering the early engagement of expert

2 witnesses on your part and negotiating with the Registry for that so that

3 we can try and eliminate some of the areas that could be in dispute.

4 That ties in with the pre-trial brief. You've been presented

5 with a very substantial pre-trial brief by the Prosecution, and you must

6 already be in the course of preparing your own. Can you give me some

7 indication of how that's going and what's being done in relation to that?

8 THE ACCUSED: [Interpretation] Let me first respond briefly.

9 Perhaps most of the disputed issues will arise with the forensic experts

10 because I have to engage an anthropologist, an expert for DNA analysis,

11 because there will be -- there's a lot of confusion there, and there will

12 be a lot of work for them to do.

13 Regarding the pre-trial brief, I have received it in English --

14 JUDGE BONOMY: Before you go on there, let's -- this may sound

15 fairly brutal, but it's not meant to be, it's meant to be realistic. It

16 may be that there is a serious DNA issue - I find it difficult to

17 imagine, but it may be there is one that affects a wide range of the

18 investigations - then we have a real engagement or battle of experts.

19 But if there were a large number of people killed in an incident, then it

20 may not matter terribly much in the overall scheme of things, no doubt it

21 was the most important thing in the lives of a group of people, but it

22 may not matter in the overall scheme of this -- the job of this Tribunal

23 that one of a number of cases was affected by difficulties. And that's

24 what I mean by being realistic in approaching issues such as that.

25 In any event, please go on and deal with the question of the

Page 272

1 brief.

2 THE ACCUSED: [Interpretation] I think that the number is of key

3 importance because there are charges here for -- two indictments against

4 genocide. And you've seen in the Popovic trial the testimony of a

5 witness who claims that all the victims buried in Srebrenica include

6 those who died of natural death and who were killed ever since 1992, and

7 all this is linked to July 1995.

8 So the number is of enormous importance as well as the nature of

9 the victim, whether he was a civilian or a soldier, whether he's male,

10 female, et cetera. So there are many problems in this area, and we will

11 hopefully produce the relevant evidence to clear this up.

12 As for the pre-trial brief, I'm grateful to the Registry, who

13 have agreed to translate summaries of witness statements which is quite

14 lengthy, and this will be ready sometime in the end of August. I need

15 this for our investigations on the ground. It is impossible to expect

16 each individual and my investigator on the ground to speak English. So

17 an extensive investigation will be required based on the statements

18 produced by the Prosecution.

19 If we don't count foreign witnesses, 60 and 26 experts and

20 92 quater, then there are still about 400 witnesses left whose statements

21 need to be checked out and investigated on the ground. So I will have

22 the translations by the end of August and this is enormous -- an enormous

23 amount of documents. We're endeavouring to find some search method so

24 that we can classify all those documents.

25 Then we also have a lot of problems with respect to the days

Page 273

1 envisaged for testimony. I may need 800 days to review the testimony

2 that will be heard here during 300 days. So tell you the truth,

3 Your Lordship, I think that if they had a case against me, they wouldn't

4 need more than ten documents. They are submitting 23.000 exhibits. So

5 this is the transformation of quantity into quality. So this will be an

6 enormous trial that may last for a decade.

7 JUDGE BONOMY: Now could you deal with the pre-trial brief for me

8 which was the subject of my question?

9 THE ACCUSED: [Interpretation] Yes, of course. I omitted to

10 respond to your question.

11 We have been given a dead-line of the 22nd of June.

12 Unfortunately, for the reasons I have described, because the material is

13 enormous, we will not be able to go into factual matters in our pre-trial

14 brief because we haven't studied all the material. But we will respect

15 the dead-line, and we will hand in our pre-trial brief by the

16 22nd of June, which will mostly be dealing with legal issues. As for

17 matters of fact, will have to be left for later, for the opening

18 statement or some other occasion.

19 But in any event, we will try to elucidate only the legal issue

20 because it is simply not possible to cover all this material that I have

21 mentioned and to review it in the pre-trial brief by this dead-line.

22 JUDGE BONOMY: Mr. Karadzic, there are very considerable number

23 of passages in this pre-trial brief where the evidence is evidence of

24 which you are said to have direct personal knowledge. Now, these are

25 factual matters that you can deal with, and indeed your failure to deal

Page 274

1 with them may be seen as significant. What's the problem about

2 specifically dealing with these matters?

3 THE ACCUSED: [Interpretation] Well, Your Lordship, if you'll

4 believe me at my word, I can deal with them of course, but I doubt that

5 I'll be able to get through that by the 22nd of June. On the other hand,

6 I want to corroborate my words and assertions through evidence on the

7 ground so that you know what I'm saying and so that I can back it up.

8 Now, if you expect me in my pre-trial brief to deal with the

9 facts, the factual situation, then I need more time. Otherwise, it

10 wasn't my intention to ask for an extension of the dead-line for the

11 pre-trial brief, but if this is going to make my position more difficult,

12 the position of the Defence more difficult, then I would like to ask for

13 an extension of time so that I can investigate matters on the ground and

14 so that I can back up my assertions with evidence and facts from the

15 ground.

16 JUDGE BONOMY: Broadly speaking, there are two areas in a case

17 like this. There's the proof of the actual crimes which are alleged in

18 the indictment and there's the question of the evidence that is said to

19 suggest that you are criminally responsible for these crimes. I

20 understand your difficulty in relation to the crimes if they are crimes

21 that still require investigation, and I make no comment on that at that

22 moment.

23 However, in relation to your criminal responsibility which may be

24 the most important aspect of this case, your own personal knowledge of

25 circumstances is a considerable element in responding to the allegations

Page 275

1 which are made and the statements of evidence which are made in the

2 pre-trial brief.

3 And if it takes longer than you have been allocated to produce a

4 worthwhile pre-trial brief on your behalf, then the Trial Chamber may be

5 sympathetic to extending the time. We certainly don't want a worthless

6 document.

7 Now, I know that you can't be faulted for the hours that you and

8 your many helpers put in in this case, but I can't at the moment gauge

9 just how much of it is being spent in preparation, direct preparation,

10 for the trial. But it is important to emphasize now that your

11 concentration ought to be very specifically on dealing with the evidence

12 that the Prosecution allege they are going to present and focusing for

13 the Trial Chamber the issues in relation to the evidence.

14 It would, I suggest to you, be a mistake not to give the

15 Trial Chamber a clear outline of your position in relation to the

16 significant evidence allegedly against you prior to the trial.

17 Now, the basic minimum period after the Prosecution pre-trial

18 brief for the Defence one is three weeks. In this case, I think the

19 period that was given was five weeks, five or -- I think it's five rather

20 than six weeks. So it's already longer than the Rules require, but the

21 case is different from other cases.

22 Do you have a specific suggestion to make about -- within

23 reason -- bearing in mind that we are approaching a trial now, do you

24 have a suggestion to make about a date that would result in the provision

25 of a more valuable pre-trial brief?

Page 276

1 THE ACCUSED: [Interpretation] At this point in time I can't say

2 because I've already burdened all my associates with a great deal of work

3 and a lot of documents. So I'll have to see how many people I have at my

4 disposal and what are the capabilities.

5 And as you have already said, we have over 500.000 pages to date

6 and most of that material relates to evidence; exhibits, 23.000 of them;

7 statements; testimony; and so on opposite. So the time we need for a

8 valid pre-trial brief, a worthwhile pre-trial brief, which would set out

9 the main lines of my defence and provide the Chamber with an insight of

10 what we will produce in your defence case to challenge the indictment,

11 for all that, I need a great deal of time.

12 And the people working for me are people from all over the world,

13 and they have a heavy burden on their shoulders. We have 400 documents

14 to date, and they have invested a great deal of effort, young people,

15 university professors from many countries, and the like. So we have 400

16 submissions already.

17 JUDGE BONOMY: It may be a question, of course, of focusing the

18 resources on the right issues.

19 You can take it that the Trial Chamber will expect a pre-trial

20 brief that is of assistance to it in keeping with the provisions of

21 Rule 65 ter prior to the next Status Conference, and the next

22 Status Conference will be four weeks from now which is the 1st of July.

23 So there's a possibility -- and an order will be issued once my

24 two colleagues have had an opportunity to discuss it with me, there's a

25 possibility of the dead-line for your brief being extended.

Page 277

1 Now, before I complete this discussion, I'll hear if the

2 Prosecution have anything to say on that matter.

3 Mr. Tieger?

4 MR. TIEGER: No, I don't think so, Your Honour. I certainly

5 share the Court's interest in receiving a pre-trial brief that identifies

6 and possibly narrows the issues.

7 JUDGE BONOMY: Yeah.

8 Bear in mind also, Mr. Karadzic, that you're not being asked to

9 provide a list of witnesses or a list of documents at this stage. You

10 have the privilege in this institution of not requiring to do that until

11 the close of the Prosecution case. So the burden on you is not quite the

12 one that you indicate. It's -- your job at the moment is to deal with

13 the issues of fact which are raised in the Prosecution pre-trial brief.

14 The Rule itself says that you have to set out, first of all, in

15 general terms the nature of your defence; secondly, the matters with

16 which you take issue in the pre-trial brief. And where your personal

17 knowledge is clearly indicated in the brief, then one would expect that

18 to be capable of ready answer. And then the third matter is in the case

19 of each such matter, that's where you take issue, the reason why you take

20 issue with it.

21 Now, that's the more difficult part of it because in relation to

22 matters that you don't have personal knowledge of, then some inquiry is

23 necessary, but that can often be done through the documents and does not

24 necessarily involve personal investigation of everything at the location

25 where these events occurred. Some investigation obviously will be

Page 278

1 necessary -- investigation of that nature will be necessary, but I

2 suggest perhaps not quite to the extent that you have suggested.

3 So the Chamber, and obviously the Prosecution, but the Chamber in

4 particular would find it of considerable assistance if the pre-trial

5 brief clearly identified as many of the significant issues between you

6 with the detailed reasons for that as possible. But you can -- you will

7 receive an order in relation to that in the next few days.

8 THE ACCUSED: [Interpretation] Thank you. I'd just like to ask

9 that you bear in mind the time that I need because I had prepared to make

10 a shorter pre-trial brief with the legal issues and not with the factual

11 issues. And this is a new request, and I hear that you have new

12 aspirations which I can fulfil. But for me to do that, I will need more

13 time.

14 JUDGE BONOMY: Well, they are not my aspirations, I'm afraid --

15 although, yes, well, they are my aspirations, but they're mandatory in

16 terms of the Rules.

17 THE ACCUSED: [Interpretation] Yes, I meant expectations of the

18 Trial Chamber.

19 May I just be allowed to say something briefly. It would be very

20 easy to disqualify the indictment because it is balanced on a thin thread

21 which is that we wanted to expel the Muslims and Croats from our

22 territory. So we're not being challenged the right to our determination

23 and our territories. It's not true that we wanted to expel them. They

24 have no proof and evidence of that. And now they're using induction

25 because there were killings in the civil war, they want to show that

Page 279

1 that's what we wanted to achieve and they can't prove that at all,

2 Your Honour.

3 JUDGE BONOMY: You see, if that's right, Mr. Karadzic, then it

4 would obviously help any Court trying to determine this to know at an

5 early stage how much of the material that relates to your own conduct you

6 accept. And there may be quite a lot of the material that's contained in

7 here about what you said and did and your relationship with other people

8 that you do accept because you say the Prosecution put the wrong

9 interpretation on the facts.

10 Now, it's going to help the determination of the case if things

11 like that are made clear. It does not assist anyone in a case of this

12 nature to try to confuse the circumstances. So it was, I think, an

13 important step to hear from you today that there may be something beyond

14 the weather that can be agreed, and not just agreed perhaps but the areas

15 in dispute can be restricted. And there may be areas where albeit you're

16 not conceding anything in particular, you can acknowledge that the

17 statement of fact that's made about your conduct or the others of which

18 you're aware is accurate. And we can get on to the bits that really

19 matter, the bits that are in dispute and are important.

20 Now, I'm going to deal with one further matter before we have a

21 short break.

22 [Pre-Trial Chamber and Legal Officer confer]

23 JUDGE BONOMY: Mr. Tieger, this may be a matter for you. The

24 Chamber made a finding in favour of the accused in relation to the

25 mens rea requirement for joint criminal enterprise -- the third form of

Page 280

1 joint criminal enterprise and made an order to produce an amended

2 indictment. You've done that. It won't take effect unless the Chamber

3 then act on it and make an order, but you've appealed the decision. And

4 I wonder if you think it appropriate for that order to be made before the

5 appeal is determined?

6 MR. TIEGER: Thank you, Your Honour. I appreciate the inquiry

7 and our position would be no, we would ask the Court to wait until the

8 resolution of that issue before the Appeals Chamber. We don't believe it

9 has any impact on trial preparation either way, and it would certainly

10 obviate the need for multiple filings if the Appeals Chamber's decision

11 went a certain way.

12 JUDGE BONOMY: We actually thought you would probably ask us to

13 stay that part of the decision, but the only other question on that, and

14 it's simply to make a comment for what it may be worth. The expression

15 "it was foreseeable that" is regularly used in the proposed amended

16 indictment rather than the expression "it was reasonably foreseeable

17 that."

18 Now, was that a deliberate choice? This is not a criticism, I

19 must say. Was that a deliberate choice, or was that just a routine way

20 of pleading?

21 MR. TIEGER: Your Honour, I -- I guess the quickest answer is I

22 don't recall offhand specific discussion about that issue. So the

23 greater likelihood is that it was more a function of the routine way of

24 pleading; however, I would welcome the opportunity -- if the Court is

25 inclined to ask us to address that, I would welcome the opportunity to

Page 281

1 revisit that with all those who participated in the drafting.

2 JUDGE BONOMY: Well, you will have to invite us in due course --

3 if we decide to postpone our order, you will have to invite us to make

4 the order, and you can make any further submissions you wish.

5 The -- my recollection of the decision is that the important

6 element for the Trial Chamber was what the accused actually foresaw, and

7 the question of foreseeability in the sense of reasonable foreseeability

8 was an element that might be used. What anyone might reasonably foresee

9 would be an element that would play a part in the determination of what

10 the accused actually foresaw.

11 So "foreseeable" may well serve the purpose, whereas "reasonably

12 foreseeable," which isn't the current situation, could cause confusion

13 unless it was reasonably foreseeable to the accused. I simply ask you to

14 bear in mind that the way in which you express this test may turn out to

15 be of significance even after the Appeals Chamber has resolved the

16 matter. They will resolve it one way or the other. If they resolve in

17 your favour, then you probably will not have to look at the indictment.

18 But if they don't, then I would ask you to be careful in your choice of

19 language to express the test whatever way they approve it. They may, for

20 example, if you're unsuccessful, define the test rather differently from

21 the way we have.

22 MR. TIEGER: Correct.

23 JUDGE BONOMY: So for these reasons it seems sensible to postpone

24 the order for a further amended indictment.

25 MR. TIEGER: Thank you, Your Honour. And we will take that into

Page 282

1 consideration, not only awaiting the specific outcome of the Appeals

2 determination and whatever guidance they may provide one way or the

3 other, but also bearing the Court's remarks in mind.

4 JUDGE BONOMY: Thank you.

5 Mr. Karadzic, it would seem sensible not to make an order for yet

6 another amended indictment in case the Prosecution are successful in

7 their appeal and have to go back to yet a fifth one. Do you disagree

8 with that or are you keen to have more indictments than anyone else in

9 the Tribunal?

10 THE ACCUSED: [Interpretation] First, I think I'll say something

11 that's going to make you happy with respect to the previous question.

12 Perhaps I'm going to accept a large number of pages because the

13 Prosecution has provided me with 175 pages of potentially exculpatory

14 material. So I won't object to that, I'll accept that straightaway. But

15 I'm just wondering why I'm here. If they have 175.000 pages of

16 potentially exculpatory material, why am I here?

17 Now, as far as the indictment is concerned, we can have a third,

18 fourth, and fifth indictment because don't forget that I have some

19 objections to make as well and challenges to the indictment. So if that

20 is accepted, then we're faced with a 5th indictment, right?

21 JUDGE BONOMY: Yes, indeed. Yet another reason for not

22 proceeding at this stage until the Appeals Chamber has resolved all the

23 outstanding appeals that affect either the form of the indictment or the

24 question of the jurisdiction of the Tribunal.

25 So you can take it that no action will be taken on the

Page 283

1 Prosecution's tendered fourth amended indictment, and it's for the

2 Prosecution to invite the Chamber to make its decision when the -- they

3 determine it's appropriate to make that submission, taking account also,

4 obviously, of the accused's challenges and the determination of them.

5 There are a few other matters to be dealt with, and then we'll

6 deal with them after a break. But before we have that break, I want to

7 raise an issue in relation to one of them. The next issue I want to look

8 at is a motion by the accused to lift the confidential status of a

9 Prosecution motion. Now, the Prosecution motion was presented

10 confidentially to protect the identity of the witness to whom it relates.

11 It's not immediately obvious, Mr. Tieger, if this is a matter for --

12 Ms. Uertz-Retzlaff, it's not immediately obvious why that should be so.

13 Now, if we have to discuss the detail of this, we may have to do

14 it in private session, and we could resume the hearing in private session

15 if that's the case. But this witness has given evidence before. The

16 witness has given evidence publicly before and has indeed explained, in

17 the course of that, the circumstances in which his evidence was

18 requested. Now, bearing that in mind, do you have a particular reason

19 why any of this should be confidential?

20 MS. UERTZ-RETZLAFF: The reason why we had filed this

21 confidential is actually the fact that in this motion itself and also in

22 particular in the annex we actually relate that the correspondence with

23 the -- the Prosecutor's office had with this witness, and that's --

24 that's why we did it because the witness definitely didn't have the

25 expectation that his correspondence with the Prosecutor's office would be

Page 284

1 in the public domain. So we can definitely name this person here, I

2 don't think there's any problem with that.

3 The only fact why it is actually filed confidential is because of

4 these correspondence attached to it and the reference to the

5 correspondence in that motion. And just in this regard, we also had

6 the -- in the Milosevic case we did have this same correspondence also in

7 confidential filings and not in public filings.

8 JUDGE BONOMY: So the situation of the witness was public but the

9 correspondence remained private?

10 MS. UERTZ-RETZLAFF: Yes, that was our position, Your Honour.

11 JUDGE BONOMY: And the witness himself made it clear in the

12 course of his evidence how he came to be a witness in the status in which

13 he was presented to the Court?

14 MS. UERTZ-RETZLAFF: Yes, Your Honour, that's right.

15 JUDGE BONOMY: And that of course becomes essentially the content

16 of the correspondence. I doubt if there's anything else in it that is of

17 a confidential nature. But your reasoning may justify maintaining the

18 confidentiality of the actual exchange, but I take it there's no reason

19 why the accused should not be privy to the terms of the correspondence.

20 MS. UERTZ-RETZLAFF: No, actually the accused does have the

21 correspondence. It's only that we didn't want to file it publicly.

22 JUDGE BONOMY: So in the end of the day you have no objection to

23 this motion -- it could, in fact, be a public motion with a confidential

24 annex?

25 MS. UERTZ-RETZLAFF: But then certain parts of the correspondence

Page 285

1 is actually reflected in the motion, and that would have to be

2 redacted -- we would have to --

3 JUDGE BONOMY: Well, what I'll do is give you time to have a look

4 at something that my assistant will show you from -- well, you're

5 obviously aware of already but just to look more closely at the terms of

6 what has happened before and then decide finally if any of this really

7 needs to remain confidential. And if it does, then we'll go into private

8 session when we come back, but we will open after the break in open

9 session.

10 So we'll have a break now, Mr. Karadzic. I expect that the rest

11 of the hearing won't last more than an hour or so. We'll break and

12 resume at 4.00.

13 --- Recess taken at 3.38 p.m.

14 --- On resuming at 4.02 p.m.

15 JUDGE BONOMY: Ms. Uertz-Retzlaff, any further information on

16 that?

17 MS. UERTZ-RETZLAFF: Yes, Your Honour. I reviewed the text that

18 was provided publicly in the Milosevic case, and the body of the motion

19 here in question, they match. We would not oppose anymore the public

20 status of the motion, but would request to maintain the confidential

21 status for the annex.

22 JUDGE BONOMY: Thank you.

23 [Pre-Trial Chamber and Legal Officer confer]

24 THE INTERPRETER: We can hear you.

25 JUDGE BONOMY: Mr. Karadzic, as a result of that, the Chamber

Page 293

1 identified a few. So I'll give you as much information as I can in an

2 e-mail which will be copied to Mr. Karadzic and leave it to you to

3 rectify it as quickly as you can.

4 MS. UERTZ-RETZLAFF: We will definitely do so, Your Honour.

5 Thank you.

6 JUDGE BONOMY: Thank you.

7 [Pre-Trial Chamber and Legal Officer confer]

8 JUDGE BONOMY: I turn now to a motion submitted by the accused

9 entitled: Motion for order concerning protected Prosecution witnesses.

10 Now, this motion is linked to the notification that we were discussing a

11 moment ago and is suggesting that it's a reasonable course of action to

12 follow to check with witnesses who have previously been the subject of

13 protective measures, that they wish these protective measures to

14 continue. It's a motion to which, no doubt, you may wish to respond.

15 But can you tell me in broad terms what the Prosecution position and

16 practice is on this?

17 MS. UERTZ-RETZLAFF: Yes, Your Honour. Actually, we are filing a

18 response opposing this motion because -- for basically three main

19 reasons. First of all, with respect to those witnesses whose protective

20 measures were ordered by Trial Chamber in cases which remained pending

21 for the Trial Chamber -- with these very Chambers, the motion's

22 improperly filed before this Trial Chamber here. That's the first, but

23 that's a more formalistic point of view.

24 With respect to the remaining witnesses, the accused's motion is

25 both too broad and without factual basis to properly constitute an

Page 294

1 application triggering the Trial Chamber's duty to act according to

2 Rule 75 (E) and (J). It's basically saying the facts why those

3 protective measures should be changed is basically a change in the

4 general security situation in the -- in Bosnia. But the Chamber --

5 protective measures are granted based on local circumstances of the given

6 witnesses and not so much according to the general security situation in

7 a country. Therefore, just claiming it's now different in that country

8 is definitely not enough according to our view.

9 And the reports that the accused relies on are essentially

10 military or security reports which basically state there is no conflict

11 anymore; but when the protective measures were basically granted in the

12 first place, that was a similar situation.

13 Since the Dayton Agreement there is no conflict -- military

14 conflict anymore in that country. We are talking about Bosnia. The

15 protective measures rather reflect localised security concerns arising

16 from the tension within the ethnic communities, and nobody would claim

17 that the tension has now -- is not there anymore, on the contrary. But

18 the details will be provided in the motion.

19 JUDGE BONOMY: Yeah.

20 MS. UERTZ-RETZLAFF: Then another point. There is -- the basis

21 for the application is mentioned that the protective measures conceal the

22 identity of the witness from the public should be rescinded to ensure the

23 reliability of their testimony, then the application must -- then this

24 application must be moot in relation to the 92 bis and 92 quater

25 witnesses, which are quite a number of these witnesses here affected from

Page 295

1 this motion.

2 And in any event, contacts by the Victims and Witnesses Unit is

3 definitely not the first step to -- in determining whether a witness's

4 protective measures warrant a re-evaluation or not. It's basically the

5 last step to be taken.

6 And finally, I want to -- also to mention that the Prosecution

7 while preparing its witness list has of course contacted quite a number

8 of these people. In fact, we have contacted 29 of these witnesses with

9 protective measures, and they have actually claimed in that conversation

10 that they still need these protective measures. And finally, the four --

11 four of these witnesses are victims of sexual assaults. Their protective

12 measures have definitely other reasons than security situation.

13 Therefore, the motion should be denied. It's basically not in

14 the form it should be.

15 JUDGE BONOMY: Thank you saying that --

16 [Pre-Trial Chamber and Registrar confer]

17 JUDGE BONOMY: Are you saying that every one of the witnesses

18 that has been contacted has sought continuation of the protective

19 measures?

20 MS. UERTZ-RETZLAFF: [Microphone not activated]

21 Your Honour, only in 29 --

22 JUDGE BONOMY: Yes, but every one --

23 MS. UERTZ-RETZLAFF: These 29, yes.

24 JUDGE BONOMY: Every one that you have contacted has asked for

25 continuation of the protective measures, or did any of the ones that you

Page 296

1 contacted say they were content to give evidence without protective

2 measures?

3 MS. UERTZ-RETZLAFF: Whenever we came across such a person, we

4 have actually already filed -- I think we filed two motions already

5 saying that the witness doesn't want these protective measures any

6 longer. But the other -- the others just want it to continue.

7 I do have a list actually from the investigator that called these

8 witnesses, and we -- I haven't counted whether these are 29 where it says

9 basically that they wish their protective measures to continue. But I

10 think it's my understanding from the e-mail of this investigator that 29

11 actually asked for the protective measures to continue. But I would have

12 to count that now.

13 JUDGE BONOMY: But that's 29 out of how many?

14 MS. UERTZ-RETZLAFF: About -- from 68. In the motion --

15 JUDGE BONOMY: I think we're talking at cross-purposes here. I

16 think the first question is: How many have been asked? Is the question.

17 MS. UERTZ-RETZLAFF: 29, Your Honour.

18 JUDGE BONOMY: So everyone who has been asked that question said

19 he or she wishes the measures to continue?

20 MS. UERTZ-RETZLAFF: Yes, 29 have.

21 JUDGE BONOMY: And you're saying that the other 39 don't -- have

22 not been asked?

23 MS. UERTZ-RETZLAFF: Have not been asked -- at least we couldn't

24 establish that in that short period of time because it's actually two

25 investigators dealt with these kind of issues, and we could only get the

Page 297

1 information from one.

2 JUDGE BONOMY: And do you say that the department or the Victims

3 and Witnesses Section have nothing to do with this?

4 MS. UERTZ-RETZLAFF: I would say at this point in time, no.

5 Because the Rule basically first --

6 JUDGE BONOMY: Do they play no role when protective measures are

7 first sought for a witness?

8 MS. UERTZ-RETZLAFF: They do play a role, but only when it comes

9 to relocation and these kind of issues.

10 JUDGE BONOMY: But do they --

11 MS. UERTZ-RETZLAFF: In relation to other protective measures

12 that the Prosecution has asked for, they are not involved.

13 JUDGE BONOMY: So they don't play a part in speaking to witnesses

14 when a decision is being made whether to apply for protective measures?

15 MS. UERTZ-RETZLAFF: Yes, they don't play a part with this one

16 exception that I just made.

17 JUDGE BONOMY: Yeah. Okay.

18 Mr. Karadzic, there will obviously be a written response from the

19 Prosecution on this motion. I was curious to find out if, in fact, there

20 was a shortcut to dealing with it. It doesn't look as though there is a

21 shortcut, but do you have anything else to say at this stage on the

22 matter?

23 THE ACCUSED: [Interpretation] Yes, Your Lordship. I can say

24 straightaway in advance that four of the victims are waiving those

25 protective rights.

Page 298

1 Regarding the victims, I understand that they need protective

2 measures. But for 64 witnesses in Bosnia at this point in time, I cannot

3 understand it. And I think that this contributes to a very poor image of

4 this trial. I'm also surprised by the poor forecast of the Bosnian

5 situation 14 or 15 years after the war. I'm not around. Surely we

6 should have reconciled ourselves. And this Tribunal was meant to

7 contribute to that reconciliation. And if this tension continues there,

8 I think this is a potentially exculpatory statement by the Prosecution

9 with respect to they me.

10 I don't see there's any reason not to contact all 64 witnesses.

11 If witnesses are not lying in the past 14 years since the war, there has

12 never been a case of a witness being attacked. So there's no reason for

13 such mystification if the witnesses are going to speak the truth. And

14 even if they don't speak the truth, they will not be harmed. I have a

15 better opinion of Bosnia than the Prosecution because it's not quite the

16 way that it is imagined even though the tension will probably continue

17 for centuries to some extent.

18 JUDGE BONOMY: You refer there to four witnesses not requiring

19 protective measures, and you seem to indicate that they are four of the

20 68 involved. Is that correct?

21 THE ACCUSED: [Interpretation] Four witnesses who are also

22 victims. I agree that they -- that they have protective measures. I'm

23 not asking those measures to be lifted for any of the victims, but for

24 all the others, there is absolutely no justification for such protective

25 measures because this is mystifying things and making it possible for

Page 299

1 them to tell the untruths.

2 JUDGE BONOMY: Well, the matter will be dealt with in light of

3 the written response and terms of the motion.

4 I move now to deal with your -- very briefly with a motion you

5 have only today filed and that's for an order for contact with

6 Prosecution witnesses.

7 Now, Mr. Tieger on this one, is it?

8 MR. TIEGER: If we're talking about the motion I think you are,

9 Your Honour.

10 JUDGE BONOMY: Which is requesting an order to the

11 Victims and Witnesses Section to do various things. First of all, to get

12 from the Prosecution contact details for witnesses and then make contact

13 with the witnesses to see if they are prepared to be interviewed by or on

14 behalf of the accused, and then facilitating arrangements for that.

15 Now, I just want to know if broadly there is any scope for

16 something along these lines or if that is something that is strongly

17 resisted.

18 MR. TIEGER: I think the former, Your Honour, with a couple of

19 provisos and caveats. First, if I may say as a preliminary matter, the

20 Prosecution does not accept the Defence contention that the Prosecution

21 has a conflict of interest. I should hasten to add that this was not

22 presented in any malicious matter at all. We received a cordial letter

23 from the accused. The motion was very judiciously framed. But it,

24 nevertheless, raised that point. And I think that it's not accurate,

25 particularly given the Prosecution's responsibilities as officers of the

Page 300

1 Court. And we indeed hasten to reassure the accused and our response to

2 him that we would clearly refrain from guiding witnesses in any way but,

3 to the contrary, ensure that they were aware that the decision was

4 entirely theirs and they were free to decide one way or the other as they

5 chose.

6 The second preliminary matter I would raise is that I believe

7 this kind of issue has been raised before with the

8 Victims and Witnesses Unit, and my understanding is that they have cited

9 a number of factors, including resource limitations by way of declining.

10 So that's certainly a factor to consider in the determination of this

11 motion.

12 Having said that, the Prosecution in theory doesn't have a

13 particular problem with who delivers the message to witnesses, provided

14 that the right message is delivered, which means a number of factors:

15 Has to be in conformity with the Court's order of September 2008, which

16 we would take to mean that the Victims and Witnesses Unit would need to

17 liaise with the Prosecutor's office prior to any contact to ensure that

18 there was no risk of unnecessary generation of witness fatigue or the

19 appearance of harassment as a result of by being contacted by multiple

20 arms of the Tribunal, each one of which might not know that recent

21 contact has been made; to take into account any particular sensitivities

22 or considerations that the witness may have made known to the Prosecution

23 before and so on.

24 Of course, we also consider that the Victims and Witnesses Unit

25 would need to make clear to the witness that the witness wasn't being

Page 301

1 pressured one way or another and was free to make a decision on his or

2 her own.

3 And finally, again in conformity with the Court's order of

4 September 2008, Victims and Witnesses Unit, if such an order was granted

5 and was feasible and appropriate, would contact the Prosecution

6 afterwards to advise of the nature of that contact so we were aware of

7 any concerns expressed by the witness; of whether the witness was going

8 to indeed provide contact details and move forward with the interview; or

9 any other factors that obviously would affect the witness's security,

10 well-being, or state of mind.

11 JUDGE BONOMY: Mr. Tieger, is there any need for a written

12 response in the light of that? Or if there is, would you like to make

13 the very quickly, please?

14 MR. TIEGER: Well, thanks for that, Your Honour. I can say we'll

15 review the transcript quickly and see if we have anything to add by way

16 of a very quick written response.

17 JUDGE BONOMY: Well, you will have a week from now to do that, so

18 a response by next Wednesday. Because I think in light of what you say,

19 it would be appropriate to hear also from the Registry on this if there

20 are logistical issues arising.

21 Now, Mr. Karadzic, in principle it seems that what you propose in

22 this motion is not opposed by the Prosecution, but there may be issues of

23 detail that need to be looked at and there may be the question of whether

24 there are, in fact, resources on the part of the

25 Victims and Witnesses Section to do what you ask. I will order the

Page 302

1 Victims and -- the Registry on behalf of Victims and Witnesses Section to

2 make a submission under Rule 33(B) to the Trial Chamber in case there are

3 any such issues.

4 Meanwhile, in light of what's been said by Mr. Tieger, is there

5 anything you wish to add?

6 THE ACCUSED: [Interpretation] First of all, I'd like to know

7 whether this applies to 85 witnesses who will be testifying here viva

8 voce, or does this relate to 92 bis witnesses?

9 JUDGE BONOMY: Well, it's your application --

10 THE ACCUSED: [Interpretation] I'm afraid I don't have it on me

11 just now. Namely, I would like to say --

12 JUDGE BONOMY: The application on the face of it relates to all

13 witnesses.

14 THE ACCUSED: [Interpretation] Yes. I have to say that

15 85 witnesses is not too many, that is, the ones that will be viva voce.

16 As for interviewing 230 witnesses that the Prosecutor wishes to call

17 under 92 bis, we're rather disturbed by such a large number of witnesses

18 whose statements we will not hear.

19 Because I come from a system in which the Prosecution does not

20 work in the same way. This is done by the investigating judge, who is

21 impartial and who collects what is good and what is bad for the Defence

22 and presents the results.

23 With all due respect, it is normal for the OTP to wish to

24 succeed, not to mention conscious efforts to conceal something. We know

25 of normal responses from Freud and others, and I can't -- I'm not quite

Page 303

1 sure that the Prosecution has taken things from the witnesses that are

2 positive for the Defence. That is why we'd like to meet with them to

3 make sure that nothing has been left out that might be favourable for the

4 Defence; otherwise, the whole trial would give a rather poor image of

5 itself.

6 JUDGE BONOMY: Thank you very much.

7 So I now formally order the Registry to present a submission in

8 response to this motion to advise the Chamber whether it presents any

9 particular problems for Victims and Witnesses Section. I was just

10 looking at the Rule there. I think it's an invitation I should extend

11 rather than make an order.

12 [Pre-Trial Chamber and Legal Officer confer]

13 JUDGE BONOMY: And that will be in keeping with what I said to

14 Mr. Tieger, that will be by next Wednesday.

15 I turn now to the third motion for adjudicated facts and a

16 request by the Prosecution to reply to the accused's response on that.

17 Now, Ms. Uertz-Retzlaff, is there a particular point that you wish to

18 reply to? Because there are a number of tests to be considered when

19 dealing with adjudicated facts, and your motion for leave to reply

20 suggests that on something we might be misled by the material presented

21 by the accused.

22 MS. UERTZ-RETZLAFF: Your Honour, we actually only want to

23 address in this reply two issues. The first issue is actually the

24 accused's argument that it would be impermissible to take judicial notice

25 of facts that were established based on documents rather than testimony.

Page 304

1 That is what we wanted to respond to because we think that's incorrect

2 for --

3 JUDGE BONOMY: Is his point not more that it's impermissible to

4 take notice of the contents of document, which is rather different from

5 saying it's impermissible to take notice of facts established on the

6 basis of documents? There may be a confusion in the issue. I mean, what

7 you say -- I can't see that there can be any doubt about what you say.

8 And I don't think it's quite worded that way in the response.

9 MS. UERTZ-RETZLAFF: No, it's not worded in that way, but that is

10 how we understood it because we are not actually providing adjudicated

11 facts in relation to that there is something in a certain document. That

12 we would definitely file differently.

13 JUDGE BONOMY: Well, I don't think you need to respond -- reply

14 on that. What's the other point?

15 MS. UERTZ-RETZLAFF: The other point is actually the order. The

16 order -- motion for a list of witnesses to be eliminated. I think that's

17 definitely something that we would like to oppose because there is at

18 this moment not the proper time to withdraw any witnesses or give a list

19 of witnesses that would be withdrawn should a fact -- fact be

20 adjudicated.

21 JUDGE BONOMY: And is that matter of withdrawing names from the

22 list of witnesses raised in the response to the motion?

23 MS. UERTZ-RETZLAFF: Yes, yes.

24 JUDGE BONOMY: Or is it raised in a separate --

25 MS. UERTZ-RETZLAFF: It's actually -- it's -- the response to the

Page 305

1 motion basically says response to the third Prosecution motion for

2 adjudicated facts -- a notice of adjudicated facts and motion for list of

3 witnesses to be eliminated. And it's actually at the -- at the end when

4 the -- after the discussion on the various adjudicated facts on page 7,

5 there is actually a request to order Prosecution to submit such a list.

6 And we would oppose this because we can definitely not deal with

7 this matter in the abstract, but rather need to see which adjudicated

8 facts are granted. And then we would actually make such a submission.

9 JUDGE BONOMY: I take it this reply is ready to be presented, is

10 it?

11 MS. UERTZ-RETZLAFF: We can -- I think we can do this tomorrow,

12 yes.

13 JUDGE BONOMY: Well, I think you should reply on the latter

14 point, and that is the question of adjusting the list of witnesses, but

15 it's not necessary on the first one. And leave will formally be granted

16 in the order that we ultimately make on the matter.

17 Mr. Karadzic, that relates to your response to the third motion

18 for adjudicated facts in which you've asked that the list of witnesses

19 should be modified to the reflect the removal of witnesses who speak to

20 the facts in which a decision on adjudication in favour of the

21 Prosecution is made.

22 It's only right that since you raise a quite separate matter in

23 your response that the Prosecution should have the opportunity to reply

24 to that. Their reply will be confined to that, and it will be done

25 tomorrow.

Page 306

1 Now, you mentioned - and this is the last matter I have - you

2 mentioned earlier today that you have a meeting later today - and I hope

3 I'm not preventing it taking place - with representatives of the Registry

4 about the arrangements for computerised access to electronic material.

5 There's little I think that we can do on that matter today. I

6 met with representatives of the Registry, as I indicated I would to you I

7 think at the last Status Conference, to see what the situation was and

8 what could be done. Now, as the result of my communications with them,

9 they have identified certain measures which can be taken. And in light

10 of that, they want to present these to you to see what can be done to

11 satisfy your requirements.

12 I'm sure you realise that there are certain limitations here, but

13 as far as I can tell, efforts are being made to provide the maximum

14 realistic access to material, particularly in the courtroom.

15 I expect that any concerns you have you will try to resolve in

16 direct communication with the Registry. If there are points that you

17 think they're not taking a reasonable approach to, then I would expect

18 you to ask them to refer these back to me. I'm quite happy to discuss

19 further with a view to resolving this. I hope that we don't have to get

20 involved in any formal determination of these issues.

21 If the arrangements they have in mind are put in place, then this

22 will be the extension -- a significant extension of developments which

23 have already taken place in the Tribunal and in the Detention Unit to

24 assist self-represented accused have access to material.

25 But as I say, there are limitations on just how much assistance

Page 307

1 can be provided.

2 So hopefully that will be resolved fairly soon and will not

3 distract attention from the work necessary to prepare for the trial.

4 Now, are there any other issues that you wish to raise with me

5 today?

6 THE ACCUSED: [Interpretation] Thank you. First of all, I'd like

7 to say something in connection with the adjudicated facts. I'm expecting

8 a translation of the second submission -- second notification which I

9 should have received by the 6th of May and I haven't, the Serbian

10 translation. I also agree with you, I see signs of goodwill by the

11 Registry to assist me with these matters, so I hope that we will be able

12 to resolve these issues without having to bother the Chamber.

13 The people working on this are really people of goodwill, though

14 certain rules for me are quite ununderstandable. Earlier on, people had

15 laptops; and I don't need any wireless communication, but a laptop would

16 come in very handy for me to bring with me here without having to leaf

17 through my documents.

18 I also wish to say that I have written 20-odd letters to certain

19 governments asking them to provide me with relevant documents and

20 evidence. This applies in the first place to failure to respect the arms

21 embargo, then the illegal activities of certain national armed forces

22 that used the UN as a Trojan horse, being present there and putting me --

23 putting us in a very bad position. And taking certain steps that are

24 being treated here in an -- at a later stage, we will be asking from the

25 signals intelligence data as to what certain governments did, and there

Page 308

1 will be some highly sensitive documents, and I will demand that the

2 governments produce these.

3 This trial cannot present the events that took place there -- I

4 don't wish to defend only myself. Generals have been condemned here for

5 things that our enemies carried out. They have been condemned to life

6 imprisonment and 30 years' imprisonment for massacres committed by

7 others, and we can prove this on conditions that the governments provide

8 us with everything we have asked from them.

9 So I appeal to you, not only with respect to governments but to

10 non-governmental organisations, the United Nations, their agencies, and

11 the International Red Cross. There were very strange things going on

12 there, and I appeal to you to assist us if they do not respond to our

13 request for the whole truth to be presented here.

14 We use the term the bare truth, the naked truth, and -- which

15 means that the truth does not have the colours of the interested parties.

16 There is one truth and that truth should not have a banner on it, but it

17 should be completely clear and naked.

18 These are the things that we will be working on. These letters

19 have already been sent. The first group of letters for the most innocent

20 matters like failure to respect the embargo. But I fear that we will

21 meet with the obstruction of many governments regarding the provision of

22 documents about the events in Bosnia, as these will be very sensitive

23 issues.

24 JUDGE BONOMY: Thank you.

25 [Pre-Trial Chamber and Legal Officer confer]

Page 309

1 JUDGE BONOMY: While you were speaking there I was told that the

2 second Prosecution motion for judicial notice of adjudicated facts will

3 be ready on the 16th of June in B/C/S. I can't remember now what date we

4 anticipated it, but you will remember that we postponed your response --

5 THE ACCUSED: [Interpretation] The 6th.

6 JUDGE BONOMY: I think you said the 6th of May, did you? Or did

7 you mean the 6th of -- 6th of May?

8 THE ACCUSED: [Interpretation] The translation was expected on the

9 6th of May. That was what it was announced, but I didn't receive it

10 then.

11 JUDGE BONOMY: Yeah. Well, it will be ready on the 16th of June.

12 The date we fixed before for your response, I think, was the

13 30th of June. I think it appropriate to extend that period in light of

14 the date for the translation, and instead of the 30th of June, I now fix

15 the 14th of July.

16 THE ACCUSED: [Interpretation] May I just say also, though this

17 perhaps is not something that is dealt with by your Chamber, that is very

18 difficult with the funds given by the Registry to keep certain experts

19 working on this trial at the rates given to assistant staff. As for what

20 I said about unconscious notifications, this applies also to

21 Judge Picard. I'm not saying that she would consciously -- I'm talking

22 about unconscious motivations, or subconscious motivations.

23 JUDGE BONOMY: Well, the issue relating to Judge Picard is one

24 which has been dealt with and which is now the subject of appeal, so I

25 think you should deal with that matter in the course of the appeal

Page 310

1 process.

2 THE ACCUSED: [Interpretation] I just wanted you to know that this

3 is not personal, nor am I accusing anyone of any conscious action but

4 something subconscious that one has no control of.

5 JUDGE BONOMY: Thank you.

6 Mr. Tieger, is there anything else that the Prosecution wish to

7 say today?

8 MR. TIEGER: No, Your Honour. Thank you.

9 JUDGE BONOMY: Thank you.

10 Well, that completes this Status Conference. As I said earlier,

11 the next one will be on the 1st of July, and I think it's in the morning,

12 is it? Yeah, it will be at 10.00 a.m. on the 1st of July. Thank you.

13 --- Whereupon the Status Conference

14 adjourned at 5.00 p.m.