Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22922

 1                          Thursday, 20 July 2000

 2                          [Closed session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 9.42 a.m.









13    pages 22922-22954 redacted – closed session













Page 22955

 1    (redacted)

 2    (redacted)

 3    (redacted)

 4    (redacted)

 5    (redacted)

 6    (redacted)

 7                          --- Recess taken at 11.05 a.m.

 8                          --- On resuming at 11.35 a.m.

 9                          [Open session]

10            JUDGE MAY:  Yes.  Mr. Nice, we'll deal with any exhibits

11    outstanding from that last witness in the usual way.

12            We have various matters outstanding, I know, and what I propose is

13    that I'm going to make an order in respect of the exhibits now.  We've had

14    a chance of looking at the objections, and indeed at the exhibits

15    themselves.  There are a very large number at the moment, and obviously

16    time is going to have to be devoted to getting them into some sort of

17    order for us to rule.

18            So, the order that we're going to make is this:  that, as a

19    general principle, we will treat the Defence exhibits in the same way as

20    we treated the outstanding Prosecution exhibits.  That means, in general

21    terms, the illegible and the untranslated will not be admitted.  Questions

22    of authenticity and lack of signature and the like will, on the whole, go

23    to weight and not admissibility.

24            And applying those principles, clearly further discussion is

25    needed.  We note that some of the exhibits have already been exhibited,

Page 22956

 1    quite a large number, and unless that is regulated in some way, either by

 2    removing them or by cross-referring, we are going to be in a position of

 3    confusion.  That will have to be sorted out, but it can be done.

 4            What we're going to rule is this:  that the parties are to make

 5    themselves available, from now on and during the recess, to discuss with

 6    the legal officers and the registry all those matters which are still in

 7    dispute, in order to identify the matters which are really in dispute,

 8    having regard to our earlier rulings, and to bring some order into the

 9    exhibits in terms of numbering and the like.  We will then rule on the

10    matter in -- after the recess at some convenient time.

11            And I should say, Mr. Sayers, for that purpose, although you've

12    stopped calling evidence -- I understand you have no more witnesses to

13    call.

14            MR. SAYERS:  After the procedural matters are dealt with

15    today -- affidavits, transcripts, and the exhibits, which I think that

16    you've already dealt with -- I think it's our intention to rest our case,

17    Mr. President.

18            JUDGE MAY:  Well, you needn't formally close it, because we'll

19    have other matters to deal with, such as these exhibits, and anything like

20    that can be ruled on, as I say, after the recess.

21            So we make that order in respect of the exhibits, unless there's

22    anything anybody wants to say about them.  We'll deal with the other

23    matters which we've got to rule on.

24            MR. SAYERS:  The only very minor points I would make with respect

25    to the exhibits, Your Honour, is you're absolutely right; some of them,

Page 22957

 1    perhaps a significant number, have already been made exhibits.  We hope

 2    that the indices that we've provided to the Court have helped elucidate

 3    that.

 4            Just a word of explanation and to use one example.  The numerous

 5    orders that were signed by Colonel Blaskic, which form the second volume

 6    of our exhibits, many of those, of course, have been previously

 7    exhibited.  But in order to provide the Court with a, as far as we can

 8    make it, a comprehensive list of all of the orders that he signed,

 9    separately organised into combat orders, non-combat orders, disciplinary

10    orders, and so forth, we had hoped that everything would be put in --

11            THE INTERPRETER:  Could the counsel slow down, please.

12            MR. SAYERS:  That was why there was a certain amount of

13    duplication.  It was simply really to help the Trial Chamber follow the

14    chronological flow of the documents.

15            With respect to translations, the situation in which we find

16    ourselves is this:  We have submitted documents to the Translation Unit

17    beginning, I think, some number of weeks ago, but there's an extensive

18    backlog, apparently, as a result of requests made by the Prosecution for

19    translation of the exhibits that are coming from elsewhere, and that's one

20    of the problems that we face.  But given the order that the Trial Chamber

21    proposes to enter, that would appear to obviate the necessity of any

22    difficulties in that regard.  And those are the only points that I wish to

23    make, Mr. President.  Thank you.

24            JUDGE MAY:  Would it be convenient next to deal with the video --

25            THE INTERPRETER:  Microphone for the President, please.

Page 22958

 1            JUDGE MAY:  Sorry.  Would it be convenient to deal with the

 2    videotape exhibits next, since we have them, we are dealing with

 3    exhibits?  We've got the objections.  We're grateful to the Prosecution

 4    for dealing with this matter expeditiously.  There are no objections to

 5    most of them.

 6            Mr. Sayers, perhaps if you've got this document here, or

 7    Mr. Browning, whoever is dealing with it.

 8            MR. SAYERS:  Yes, sir.  With the Court's permission, Mr. Browning

 9    has been dealing with the video exhibits and would like to address these

10    objections.

11            JUDGE MAY:  Well, let's go through them, Mr. Browning.  Number 2,

12    bad quality.  Well, quality is a matter which -- something which we can

13    take account of, but it doesn't make the matter inadmissible, I would

14    suggest.

15            The next one, number 3, there's apparently no translation.  Can

16    you assist about that?

17            MR. BROWNING:  Yes, Mr. President that is a broadcast and the

18    language of the broadcast is actually in Arabic.  I believe it might be TV

19    Zenica.  The significance of the video is the actual physical footage of

20    Commander Totic in the presence of Mujahedin who were masked, so the

21    commentary that's given by TV Zenica is not particularly significant.

22    What's significant is physically what happened to Commander Totic.  And if

23    I could proceed, there's also an objection here in terms of relevance.

24            JUDGE MAY:  Well, there's no need to address that.

25            MR. BROWNING:  All right.

Page 22959

 1            JUDGE MAY:  Now, during the recess, perhaps you could look into

 2    getting a transcript for that.  It can't be beyond the resources of

 3    Hunton & Williams to find someone to translate from Arabic into English.

 4            MR. BROWNING:  I will certainly check into that, but I'm not aware

 5    of any of my partners or associates that are conversant but we will do our

 6    best.

 7            JUDGE MAY:  You've got offices all over the world, haven't you?

 8            Yes.  Well, the next one, no translation.  I see the subject

 9    matter.  Again, if there is a transcript, it should be -- or comments,

10    they should be translated.

11            What about number 13?  Number 13, again, no translation.  Perhaps

12    you could look into that, again over the recess.

13            MR. BROWNING:  Certainly, Your Honour.

14            JUDGE MAY:  And then you have already submitted others for

15    translation.  We'll come back to look at these after the recess then.

16    We'll admit those of which there's no objection.  We'll admit the one

17    where the quality is apparently not very good.  But the others we'll wait

18    for the translations.

19            MR. BROWNING:  Thank you, Mr. President.

20            MR. NICE:  Your Honour, can I just make one point?

21            JUDGE MAY:  I'm sorry, yes.

22            MR. NICE:  Can I make one point, please, and that is that where

23    we've said "shock effect," that is effectively raising an objection, or a

24    potential objection it seems, to ask that a lot of this material is being

25    advanced simply for its emotional effect.

Page 22960

 1            We've been very cautious and restrained in any material that would

 2    have an emotional effect on the listener and it doesn't seem to us helpful

 3    to produce material that will have such an effect.  And so far as item

 4    three is concerned, I heard what Your Honour said about relevance, but the

 5    Court will recall that circumstances of his arrest is not a matter in

 6    issue, it's not being challenged.  And, therefore, I can't see, frankly,

 7    how this particular footage will do anything except burden the Chamber.

 8            JUDGE MAY:  It's all --

 9            JUDGE ROBINSON:  Mr. Nice, as far as the shock effect is

10    concerned, remember you are not before a jury.

11            MR. NICE:  I appreciate that.  On the other hand, if it -- if that

12    isn't the effect that it's designed to have, it seems to me to be candidly

13    totally irrelevant because this Prosecution from the word go has

14    acknowledged that were crimes on both sides and hasn't ever sought to say

15    otherwise.

16            JUDGE MAY:  I think it's a matter which is necessary for us to

17    consider and at the moment, my view is this:  That however things may have

18    started out, and whatever views that other Trial Chambers may have

19    expressed about a tu quoque argument, I think there is relevance in this

20    case as part of the story of what was happening elsewhere beyond those

21    villages in which there were attacks, as alleged, by the Bosnian Croats on

22    the Bosnian Muslims.  And the fact that there were attacks the other way

23    around, I think, are inescapably part of this case.  And, therefore, to

24    rule at this stage that such evidence is inadmissible would seem to be

25    wrong.

Page 22961

 1            MR. NICE:  I don't disagree.  On the contrary, I accept it.  It's

 2    in evidence.  It's a question of how it's presented.  I have nothing

 3    further to say on that.

 4            JUDGE MAY:  Apart from those matters where translations are

 5    required, the videos will be admitted.  We will come back to the others

 6    later.

 7            Now, we have to deal with the transcript witnesses and the

 8    affidavits.  I am in the parties' hands as to which the most convenient to

 9    deal with is.  Would it be more convenient to deal with the transcripts

10    first?

11            MR. NICE:  The transcripts.  We've presented a tabulated document

12    this morning.  I trust the interpreters have got copies.  There are three

13    transcripts to whom very substantial objection is taken.  In our

14    respectful submission, it would be wholly wrong for those transcripts to

15    be admitted.

16            Number one, Your Honour only has to look in light of the last or

17    more recent evidence that we've been hearing to the summary of what this

18    witness would say, namely that Kraljevic planned and executed the attack

19    on Stari Vitez entirely on his own without any help of others.

20            Our position on that is that she has to testify if her evidence is

21    to be in at all with full cross-examination.  Apart from the shortcoming

22    of there being four pages of transcript, I think some more pages may have

23    been served this morning, but I haven't had a chance to look at them.

24    This is a central issue, and it simply can't be allowed in.

25            The Chamber will recall that with our transcript witnesses,

Page 22962

 1    wherever one of the defendants was touched upon directly by way of

 2    implication, the Chamber immediately indicated that its approach would be

 3    different from its approach in relation to transcripts where they weren't

 4    touched upon directly, and in either all or nearly all cases, the

 5    transcripts were excluded.

 6            Here, there is evidence, were it ever to be accepted, that would

 7    go to exclude one of the defendants at least for an important part of the

 8    evidence laid against him, and, therefore, that evidence would have to be

 9    live.

10            Number two, Palavra is subject to the same observation.

11            JUDGE MAY:  We think we'll treat these as a whole rather than

12    doing them one at a time.

13            MR. SAYERS:  One point I wish to raise, Your Honour.  We're in

14    open session, and the third witness on the -- sorry, the fourth witness on

15    the Prosecution's sheet testified in closed session.

16            JUDGE MAY:  It can be referred to as number four.

17            MR. NICE:  Witness number two, similarly, is a witness whose

18    evidence can only be taken and weighed if the witness attends and is

19    cross-examined.  His position as Commander of the 4th Military Police

20    Battalion is plainly a significant one.  The Defence have twice announced

21    an intention to call this witness.  Even this week he's cancelled or not

22    appeared.  That, itself, not being without significance.  He played a

23    major role in Central Bosnia and it would be the Prosecution's case that

24    he was deeply involved himself in what happened.

25            He was referred to by Blaskic as the most involved.  He would be

Page 22963












12   Blank page inserted to ensure pagination corresponds between French and

13   English transcripts













Page 22964

 1    only the second of two senior military officers to testify, military

 2    police officers to testify, and the only one who will be capable of having

 3    real memory and knowledge of events in the Lasva Valley.  Vukovic left in

 4    January 1993.

 5            In Blaskic, his testimony and the cross-examination was directed

 6    only about Blaskic.  He wasn't asked about Kordic at all.  And if he

 7    didn't follow Blaskic's orders, we ask, rhetorically:  Whose did he answer

 8    to?  And it would be those topics amongst others that he must be examined

 9    on.  We venture to suggest he, like the next witness but one, is simply a

10    witness far too important even to contemplate allowing in on the

11    transcript from another case where there was simply no full examination.

12            We respectfully remind the Court of its powers under Rule 98,

13    given that the Defence has twice announced an intention to call this

14    witness, it may be that the powers available to them of enforcement will

15    be a little less than the Court and the Court's order will be effective.

16            Witness 3, although it's of course a matter for the Tribunal, we

17    take the view, in the spirit of attempting to save time, which we know the

18    Court wants to pursue, or wants us to have as a general spirit, although

19    we don't accept his version of events, we acknowledge that he wasn't

20    physically present, and much of his testimony was hearsay and is in

21    contradiction to others but with all that in mind, we don't challenge the

22    admission of his transcript.

23            I think it would be safer to -- if I may respectfully suggest,

24    that we go into private session for number four because whatever I say

25    about the witness might be revealing.

Page 22965

 1            Would that be acceptable to the Court?

 2            JUDGE MAY:  Yes.

 3            MR. NICE:  Even so, in private session, I shan't name him.

 4                          [Private session]

 5    (redacted)

 6    (redacted)

 7    (redacted)

 8    (redacted)

 9    (redacted)

10    (redacted)

11    (redacted)

12    (redacted)

13    (redacted)

14    (redacted)

15    (redacted)

16    (redacted)

17    (redacted)

18    (redacted)

19    (redacted)

20    (redacted)

21    (redacted)

22    (redacted)

23    (redacted)

24    (redacted)

25    (redacted)

Page 22966













13    page 22966 redacted – private session













Page 22967

 1    (redacted)

 2                          [Open session]

 3            MR. NICE:  I'm sorry, Your Honour.  I thought you asked me to go

 4    back a bit.

 5            JUDGE MAY:  No.  Back into open session.

 6            MR. NICE:  Oh, sorry.  Yes, of course.  Sorry.

 7            5, 6, and 7, we set out our position.  Providing in each case the

 8    entire transcript, including cross-examination and related exhibits, is

 9    admitted, we don't object.  That, I think, was the policy pursued in

10    relation to Prosecution transcripts that were admitted, and in each case

11    it's important that the cross-examination is there, but I imagine that

12    that point would itself not be contentious.  We've attached to our

13    tabulated document the 23rd of March edition of Nacional, translated into

14    English.

15            MR. SAYERS:  Using the template suggested by the Prosecution,

16    generally, of course, to the extent we suggest that transcripts from prior

17    cases be introduced into this case, Your Honour, all of the

18    transcript -- direct examination, cross-examination, all of it -- should

19    be introduced.  And to the extent that there's been any suggestion, and I

20    don't know where it came from, that we're only asking for four pages of

21    Witness DQ to be introduced, if I'm responsible for that error, then I

22    apologise.  It's not intentional.  We want her entire transcript.

23            Witness DQ is an interesting witness in some ways.  It's a good

24    example of the importance of the repeated stress that we've laid upon the

25    need for access to all of the transcripts in all of the Lasva Valley

Page 22968

 1    cases.  And I'm bound to say that we came across Witness DQ's testimony

 2    fortuitously as a result of a mistaken belief on my part that Witness DQ

 3    was the mother of the children, eight children in -- some of the children

 4    who were blown up in Vitez on the 10th of June, 1993, by an ABiH artillery

 5    shell immediately before the Convoy of Joy.  In fact, that witness was

 6    Mira Garic, and that's the last witness whose transcript in the Blaskic

 7    case we have asked the Court to admit, fairly short testimony.

 8    (redacted)

 9    (redacted)

10    (redacted)

11    (redacted)

12    (redacted)

13    (redacted)

14    (redacted)

15    (redacted)

16    (redacted)

17    (redacted)

18    (redacted)

19    (redacted)

20    (redacted)

21    (redacted)

22    (redacted)

23    (redacted)

24    (redacted)

25    (redacted)

Page 22969

 1            I think I've covered Mira Garic, Mr. President.  There does not

 2    appear to be any objection.  And one of the reasons we requested to use

 3    her transcript is this lady went through a very traumatic personal

 4    experience, and there's no good reason, in good conscience, to subject her

 5    to have to go through that again.

 6            The second witness on the Prosecution's sheet is Colonel Marinko

 7    Palavra.  Mr. President, this witness gave no less than 474 pages of

 8    testimony in the Blaskic case.  He was extensively and aggressively

 9    cross-examined by Mr. Kehoe.  We think this witness provides

10    significant -- not critical, but significant testimony regarding the chain

11    of command in the military police.  You've already heard about that from

12    one of our witnesses, Colonel Zvonko Vukovic.  You've already heard about

13    that from the Prosecution's witnesses.  I do not believe that the chain of

14    command in the military police is an issue which is seriously contested by

15    any of the evidence in this case.  Colonel Palavra replaced the notorious

16    Pasko Ljubicic as Commander of the 4th Battalion of the Military Police on

17    August 1st, 1993.

18            With respect to the contentions regarding questions addressed to

19    Mr. Kordic's status in relation to the military police, Your Honour, as

20    the Court well knows, that was a central issue in the Blaskic case.

21    Colonel Blaskic and his lawyers attempted to skirt, mitigate, or minimise

22    the liability of Colonel Blaskic for the crimes committed by soldiers by

23    pointing fingers at others.  That was done throughout the Blaskic case,

24    Mr. Kordic being one of those individuals, a point which I'll elaborate

25    upon with respect to the next witness.

Page 22970

 1            The contention that there was no incentive to ask questions about

 2    Mr. Kordic of this significant witness is absolutely belied by the 474

 3    pages of his transcript.  And it is noteworthy to stress that he was asked

 4    extensively, as you might expect, about the chain of command in the

 5    military police, and he was absolutely clear on the subject.

 6            The most responsible individual in the zone of responsibility was

 7    the Commander of the Operative Zone, Colonel Blaskic.  In fact, it was

 8    Colonel Blaskic who appointed him, Colonel Blaskic who first met him and

 9    said that he was doing an extremely responsible job, and Colonel Blaskic

10    who congratulated him on his new appointment and stressed that he had

11    important functions to fulfil.

12            He described the organisational structure of the military police

13    and the chain of command in detail and he also stated that the

14    headquarters of the military police was subjugated to the Command of the

15    Operative Zone.  So any contention that he wasn't questioned extensively

16    on the chain of command is simply not the case.

17            This gentleman is currently a colonel, serving with the Ministry

18    of Defence, I believe, of the Federation, and he is the head of military

19    police for the Federation.  His testimony is important and the Trial Court

20    ought to receive it.

21            There are two ways that we would suggest that the Court receive

22    this testimony:  Either his transcript from the Blaskic case or the Court

23    could summon him itself under Rule 98, if it feels that there's any lacuna

24    in the 474 pages of his testimony, but we do not think that that is

25    necessary.

Page 22971

 1            With respect to the third witness on the Prosecution's table, I

 2    don't believe there's any objection if the entire transcript comes in.

 3    Therefore, there's no point in discussing that any further.

 4            If we could go into private session for a few minutes to discuss

 5    the fourth witness.

 6                          [Private session]

 7    (redacted)

 8    (redacted)

 9    (redacted)

10    (redacted)

11    (redacted)

12    (redacted)

13    (redacted)

14    (redacted)

15    (redacted)

16    (redacted)

17    (redacted)

18    (redacted)

19    (redacted)

20    (redacted)

21    (redacted)

22    (redacted)

23    (redacted)

24    (redacted)

25    (redacted)

Page 22972













13    page 22972 redacted – private session













Page 22973

 1    (redacted)

 2    (redacted)

 3    (redacted)

 4    (redacted)

 5    (redacted)

 6    (redacted)

 7    (redacted)

 8    (redacted)

 9    (redacted)

10    (redacted)

11    (redacted)

12    (redacted)

13    (redacted)

14    (redacted)

15                          [Open session]

16            MR. SAYERS:  There does not appear to be any other objection --

17            JUDGE MAY:  Just one moment.

18                          [Trial Chamber deliberates]

19            JUDGE MAY:  Yes.  Well, we've had a chance to consider the

20    position, Mr. Sayers, and we would be minded to follow the suggestion.

21    Are we in open session?  Yes.  We are minded to follow this suggestion

22    that in relation to Colonel Palavra, that as both sides have suggested, we

23    summon him.  The Court will do that.

24            In relation to witness number four, you suggest that we summon

25    him.  It seems the same principle should apply, and so we are minded to

Page 22974

 1    summon him.  Unless there's anything more you want to say, the remaining

 2    witnesses, I think, are all agreed subject to the entire transcripts being

 3    admitted.  We will admit the entire transcripts.

 4            That leaves Witness DQ.  We've considered the position in relation

 5    to that, and we think that she is a witness who doesn't come in the

 6    category of one who necessarily should be cross-examined and, therefore,

 7    we will admit her evidence.

 8            Now, that being so, I think the responsibility is yours to get us

 9    a binder with these transcripts in.  Witness DQ can be numbered TW32 or

10    whatever the next number is, I think it's in that sort of range.  The

11    others are not subject to the -- the others, I should say, to make it

12    plain, they are Miroslav Pejcinovic --

13            MR. SAYERS:  Mr. President, sorry to interrupt, but one of the

14    other witnesses testified in closed session, number five.

15            JUDGE MAY:  Number five.  Number five, number six and number

16    seven, all those will be admitted, but it's for you to produce binders

17    with those documents in, in a suitable form so that we can follow what's

18    going on, divided each from the other with an index.

19            MR. SAYERS:  We've actually submitted the transcripts of all of

20    the testimony already to the Court.  Could I just suggest this:  It might

21    be helpful to the Court if we can prepare a separate document that just

22    highlights the specific pages and line numbers to which we'd like to draw

23    particular attention of the Court.

24            JUDGE MAY:  If we send back what we have to you, and you can then

25    prepare it in a binder.

Page 22975

 1            MR. SAYERS:  Yes.

 2            JUDGE MAY:  Not loose leaf, if you please.

 3            MR. SAYERS:  Yes, sir.

 4            JUDGE MAY:  Thank you very much.  That, I think, brings us to the

 5    affidavit evidence.

 6            MR. NICE:  We have prepared the usual chart.  We object to numbers

 7    one and two and not to the balance subject --

 8            JUDGE MAY:  Let us get that.  We have a great deal of paper here.

 9    Before we begin, let me see if we've got everything.  The original

10    affidavits are numbers 31 to 35, if I'm right, Krizanac, Mrlic,

11    Gvozdenovic, Pesa and Pojavnik.  They were five which were in support of

12    various witnesses.  And then since then, we've had submitted affidavits,

13    character witness, and family information affidavits.  Perhaps it might be

14    convenient if we turn to those first.

15            MR. NICE:  My oversight, I have omitted to bring them in, we

16    haven't had enough time to focus on them.  But we discussed it briefly

17    yesterday and reminded ourselves that, I think in another case in which

18    Your Honour was involved, there was a policy of having one -- or a

19    practice of having one live witness as to character and others to come in

20    by some form of formal statement.  Knowing the Chamber's concern to save

21    time, without, in any sense, acknowledging the accuracy of this material,

22    we would invite the Chamber to take the same course.  Alternatively, if

23    it's content to say that there's already character evidence in, just to

24    let all the other evidence in.  It's very much on the basis that we don't

25    necessarily accept it, of course, we'd rather ask these witnesses

Page 22976

 1    questions.

 2            JUDGE MAY:  Are you still maintaining that Mr. Kordic was the

 3    cousin of Mr. Boban?

 4            MR. NICE:  No.  As for that particular one which I remember, one

 5    would still want to know how the particular rumour circulated because it

 6    was obviously widespread from what else underlay it.  One would want to

 7    inquire into it, but it's hardly matters of such significance that the

 8    Chamber will regard that as worth bringing people here for, I would have

 9    thought.  So that's our suggestion that, at most, one and the rest

10    affidavits, or if the Chamber thinks it's got enough evidence of character

11    already from various people who have spoken about Kordic, subject to our

12    reservations and to save time, let it in.

13                          [Trial Chamber deliberates]

14            JUDGE MAY:  We will admit the character and family witnesses,

15    namely the affidavits of Sabuheta Tuko, Mustafa Tapic, Pero Kordic, Ljubo

16    Boban.  Those four affidavits will be admitted and added to the list.

17            MR. NICE:  Dealing with the other affidavits if I can,

18    collectively.  First of all, we object only to two, subject to our general

19    objection to affidavits by which, of course, we reserve our position.  But

20    we don't object that starting at the end to the last one, two, three, we

21    object to the first two.

22            So far as the first one is concerned.

23            JUDGE MAY:  Let me just make a note.

24            JUDGE MAY:  We'll begin with Mr. Krizanac then.

25            MR. NICE:  Yes.  You'll probably remember a little bit about this

Page 22977

 1    when I remind you.  This was a witness who was called on, I think a Monday

 2    morning.  And --

 3            THE INTERPRETER:  Excuse me, could the interpreters be provided

 4    with copies of the documents that were just circulated?

 5            JUDGE MAY:  Could the interpreters have copies?

 6            MR. NICE:  I'm so sorry that they haven't.

 7            THE INTERPRETER:  The French booth only.

 8            MR. NICE:  There is only one required, I think, for the French

 9    booth.

10            Before we come to the content, I think I'll pick up where I was.

11    This witness was called on Monday morning first thing, and we were

12    presented in court, minutes before -- sorry, Tuesday I'm told, Tuesday.

13    We were presented in court first thing on our desks with the affidavit.

14            Ms. Somers, who was dealing with this witness, drew to your

15    attention that she had had no opportunity to consider the affidavit before

16    she was being required to cross-examine the witness and made it clear that

17    her cross-examination really couldn't take account of it.

18            Now, in general, that has been unsatisfactory and unattractive

19    practice, particularly given that the Defence have taken this Chamber to

20    appeal on the basis that the very strictest interpretation of the

21    provisions has to apply for any affidavit.  And those provisions, we know,

22    are aimed at allowing or enabling the cross-examining party to

23    cross-examine the live witness on material contained in an affidavit

24    served ahead of the live evidence.

25            So it is deeply unsatisfactory and, indeed on the Defence's own

Page 22978

 1    approach to the Rules, simply wrong to present us, minutes before the live

 2    witness, with an affidavit.  We've actually put up with it as we have with

 3    many other things in order to avoid conflict and to get this case going

 4    and forward.  However, on this particular affidavit, as Ms. Somers was

 5    about to tell the Court but the Court was understandably concerned to hear

 6    the evidence, on this particular affidavit things are rather more stark.

 7            Not only was the affidavit signed on the previous Friday, but in

 8    exchange of correspondence between the parties over the weekend, they were

 9    specifically requesting for affidavits in support, as I recall, and it was

10    revealed that -- I think it was revealed that this affidavit was ready and

11    they simply declined to provide an affidavit in advance when they could

12    and should have done.  We didn't cross-examine him on the content of the

13    affidavit and it would simply be wrong to allow it in now.

14            As to what bits are covered by what bit of evidence, we've set it

15    out in the usual way, but there was no excuse for not providing us with

16    this document in adequate time for Ms. Somers to prepare.  She didn't, and

17    she didn't cross-examine on the basis of it.

18            MR. SAYERS:  The particular argument that we've just heard was not

19    forecast in the paper that you have, but if I might just hand up the faxed

20    affidavit, it will show the Court when we received it.  It was actually

21    received by our office on July 3rd, 2000, signed and we turned it over to

22    the Prosecution the very next morning.

23            JUDGE MAY:  We will accept that you did that.

24            MR. SAYERS:  The -- if I might address the specific objections

25    that are made, the affidavit generally corroborates the testimony of

Page 22979

 1    Stjepan Neimarevic that was difficult given on July 4th.  The witness

 2    being the current guardian of the Guca Gora monastery.  The principle

 3    objection that I can see is to number ten, number ten on the Prosecution

 4    list.

 5            According to the summary here, number ten was not covered with Mr.

 6    Neimarevic, that 20.000 Croats fled from Travnik in June of 1993, 300

 7    killed, 1.000 wounded and so forth.  Actually, if you take a look at Mr.

 8    Neimarevic's testimony at page 22009, he covered that point specifically.

 9    The question was:  "Would it be too much to say that 20.000 Croats were

10    driven out?"  Answer:  "It was at least 20.000."

11            So Mr. Neimarevic did testify about all of this.  The affidavit is

12    broadly corroborative of fairly general matters.  It does not, in any

13    sense, concern matters of centrality such as one of the members of the

14    Trial Chamber has observed, and we would suggest, although we are not

15    opposed to bringing along this witness if absolutely necessary, he would

16    simply say what he said in his affidavit, and that would simply duplicate

17    Mr. Neimarevic's testimony.

18            But if the Court wants, we can bring him along if it feels it is

19    necessary.

20            MR. NICE:  On this occasion, can I reply to two points?  As to

21    paragraph ten, the 20.000 Croats may have been covered, as I understand

22    it, the balance is not.  And as to the dating of the document, the

23    affidavit was dated the 30th of June, and the Defence provided, whether

24    intentionally or otherwise, the document, I think, over the weekend

25    -- tabulated document which revealed that they were aware, over the

Page 22980

 1    weekend, the affidavit was already, I think, prepared.

 2                          [Trial Chamber deliberates]

 3            JUDGE MAY:  We've considered this matter.  Normally, we do not

 4    insist upon the calling of witnesses dealing with background matters.

 5    However, there are controversial matters in this evidence and we bear in

 6    mind that the Prosecution were taken by surprise by it and didn't have the

 7    opportunity of cross-examining the original witness in the way that they

 8    would have done had they had the document before, and in those

 9    circumstances, we shan't admit this affidavit.  We shall say the witness

10    is to come for cross-examination.

11            At some stage, it will be necessary to consider when it's

12    convenient during the course of the case for the co-accused to fit in such

13    evidence, but that can be done by agreement.

14            MR. SAYERS:  We will make inquiries, Mr. President.  Thank you.

15            JUDGE MAY:  Yes, there are in fact two witnesses, I think, two

16    other witnesses, affidavit witnesses I have in mind, Stipac, Ivo Stipac

17    and Ivo Brnada, neither of whom have yet come.  Now, clearly, they should

18    come or their affidavits won't be admitted.

19            MR. SAYERS:  I think the affidavits were not admitted and the

20    Court required the attendance of the witnesses.  We'll review the position

21    and let the Court know what the -- what our approach is.

22            JUDGE MAY:  Very well.  The next witness is.

23            MR. NICE:  (redacted)

24    (redacted)

25    (redacted)

Page 22981

 1    (redacted)

 2    (redacted)

 3            JUDGE MAY:  Is this the incident in number three.

 4            MR. NICE:  That's right, yes.  He gave the name --

 5            JUDGE MAY:   We've heard evidence about this and cross-examination

 6    about it.

 7            MR. NICE:  But, in fact, it's given very lightly and this is a

 8    level of detail which is itself built on hearsay and, in our respectful

 9    submission, simply won't help.

10            JUDGE MAY:  A very peripheral matter.

11            MR. NICE:  Exactly.  It's really more irrelevant than anything but

12    it simply doesn't help the Chamber.

13            JUDGE MAY:  We will admit the affidavit.

14                          [Trial Chamber confers]

15            JUDGE MAY:  Mr. Nice, we received today some further motions, I

16    think, from the Kordic Defence.  You may not yet have got them.  If you

17    can let us have your responses within the next two weeks, we can deal with

18    them before the recess, that would be helpful.  Unless there are any

19    further matters --

20            MR. NICE:  There are two matters I want to raise, and it looks

21    like Mr. Sayers has something he wants to say.

22            JUDGE MAY:  Mr. Sayers, was it about the motions?

23            MR. SAYERS:  Could I suggest this, Your Honour, we would like to

24    suggest to the Court and request, if that's appropriate, a pre-rebuttal

25    and pre-rejoinder case conference, just for this reason.  New documents

Page 22982

 1    and new theories have been a daily development in this case and have

 2    confronted us with a considerable challenge, something of a moving target,

 3    so to speak.  We are, I think, entitled to know what is the case that we

 4    have to answer, and I think that observation has been made before and

 5    we've done our best to do so.

 6            It seems to me that the Court has already scheduled the rebuttal

 7    and the rejoinder cases for the weeks of December 4th and December 11th,

 8    respectively.  It might make sense to have a conference that assigns firm

 9    deadlines for the identification of witnesses to be called, the provision

10    of brief summaries of their testimony, provision of outlines, on both

11    sides.

12            And the only reason I make that observation is that December 4th

13    is five months from now.  The Prosecution obviously has five months to

14    consider the evidence adduced by the Defence and put on a rebuttal case.

15    It seems to us fair to assign a deadline for the Prosecution to inform us

16    of what rebuttal evidence they intend to adduce so that we can make our

17    own inquiries and put on a smooth rejoinder case.

18            We're not suggesting that any unrealistic deadlines be imposed.

19    What I had thought would be, for example, the end of October to let us

20    know what -- or the third week in October to let us know what the rebuttal

21    case would be, and then perhaps a month later, or three weeks later, to

22    let the Prosecution know what our rejoinder case would be expected to be.

23    That way the Court would know, the parties would know, we would be able to

24    do the briefing with that in mind, and at that conference we could also

25    address any motions that are outstanding.

Page 22983

 1            I know that there are going to be some motions that are

 2    outstanding.  One additional motion that we will make to preclude the

 3    testimony of a witness that the Prosecution has already intimated to us

 4    that it might attempt to call, but we did not adduce any evidence on that

 5    subject and there is no rebuttal function to be served by that particular

 6    witness.  But matters of that type I think could be appropriately handled

 7    at our pre-rebuttal and pre-rejoinder case conference.

 8            JUDGE MAY:  That's a perfectly sensible suggestion, if I may say.

 9    The only question is a matter of timing.  What I have in mind is this, and

10    it partly depends on the Cerkez case and how long it takes.  But if it

11    were possible to finish that case earlier rather than later, we

12    should -- and I speak for myself -- but we would have in mind, I suspect,

13    trying to start the rebuttal case as soon as possible so that we don't

14    waste time.

15            The fact is that the other case, the Kolundzija case, is now fixed

16    for the 6th of November.  That is a date which we will keep.  And

17    therefore, to some extent this case has to fit round that case and it

18    can't start before then, but it would be a pity if we found ourselves in a

19    position of losing time because parties weren't ready.  So now is the

20    opportunity to warn the Prosecution.  We shall expect them to be on.

21            MR. NICE:  Your Honour has already, on an earlier occasion,

22    mentioned the possibility of I think rebuttal evidence starting before

23    November.  We have that in mind.  As to any deadline, it's really

24    impossible to forecast a date by which we'll know our final position, not

25    least because of what's happening, as we all know, in Zagreb.

Page 22984

 1            What I can say is that efforts are being made to identify what, if

 2    any, material should be sought to be led in rebuttal, and as soon as we

 3    identify any particular material, we'll tell the parties straight away.

 4    We won't wait for, as it were, a date and a deadline.  That wouldn't be

 5    helpful.  So as soon as I know I'm going to call someone, I'll serve a

 6    notice -- or intend to call someone -- I'll serve a notice, as indeed I've

 7    done already in relation to one other witness.  That must be the witness

 8    that Mr. Sayers is referring to, although I can't remember it.

 9            There are two other --

10            JUDGE MAY:  Well, before you get to that, clearly a conference, it

11    may not be on a particular day and it may be a moving conference --

12            MR. NICE:  Yes.

13            JUDGE MAY:  -- depending on events, but in September, when we come

14    back, we should have in mind that we should fix such a date so we can

15    discuss these matters.

16            MR. NICE:  I respectfully agree.  Indeed, I think it's very

17    sensible, because probably by a week or so into September we'll have a

18    clue from the Cerkez Defence what the total Cerkez timetable is likely to

19    be, which will guide us all, I think.

20            There are two other matters, I think, but maybe three, very

21    briefly to mention.  One -- it may be my mistake for not understanding

22    Your Honour -- was the question of the exhibits in relation to the last

23    witness that I was asking to put in.  I hadn't got right through to the

24    end of that, I think.  I don't know if the Court intended that we should

25    deal with that today or --

Page 22985

 1            JUDGE MAY:  No.  Give the Defence the opportunity to formulate

 2    their objections.

 3            MR. NICE:  So be it.  Come back and deal with that.

 4            Second point, which can be dealt with in open session, fully open

 5    session, is summaries of the Cerkez witnesses.  I'm not sure how many, if

 6    any, we've got so far.  There are still four outstanding, I think, for the

 7    period of time that they've given a witness list, and we really do need

 8    this material.

 9            I forecast -- I might be wrong -- that the Cerkez witnesses will

10    be at a higher rate per day than in the Kordic case.  That makes the

11    difficulties of adequately preparing, to acknowledge or challenge -- to

12    accept or challenge what they say, makes the difficulties preparing for

13    that much more difficult, because you're going to have in each case to

14    deal with the same issues for more witnesses.  So we really do need the

15    outstanding --

16            JUDGE MAY:  You could let Mr. Mikulicic know what it is you're

17    looking for.

18            MR. NICE:  Can we have a private session very briefly, if that's

19    convenient, for one other short matter that I haven't given the Defence

20    notice of it, only because I've forgotten.  I keep forgetting.  But

21    perhaps I can mention it now.

22            JUDGE MAY:  Before we do, Mr. Mikulicic, they say there are four

23    summaries outstanding.  Can we be assured that that will be in hand?

24            MR. MIKULICIC: [Interpretation] Yes, of course, Your Honours.  We

25    shall do it the moment we finish preparing those summaries.  Our witnesses

Page 22986

 1    will be arriving in The Hague today, and after our interviews with those

 2    witnesses, the summaries will be submitted to the Prosecution.

 3            JUDGE MAY:  Thank you.  We'll go into private session.

 4                          [Private session]

 5    (redacted)

 6    (redacted)

 7    (redacted)

 8    (redacted)

 9    (redacted)

10    (redacted)

11    (redacted)

12    (redacted)

13    (redacted)

14    (redacted)

15    (redacted)

16    (redacted)

17    (redacted)

18    (redacted)

19    (redacted)

20    (redacted)

21    (redacted)

22    (redacted)

23    (redacted)

24    (redacted)

25    (redacted)

Page 22987













13    page 22987 redacted – private session













Page 22988

 1    (redacted)

 2    (redacted)

 3    (redacted)

 4    (redacted)

 5    (redacted)

 6    (redacted)

 7    (redacted)

 8    (redacted)

 9    (redacted)

10    (redacted)

11                          --- Whereupon the hearing adjourned at 12.50 p.m.,

12                          to be reconvened on Monday the 24th day of July

13                          2000, at 9.30 a.m.