Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26617

 1                          Wednesday, 18th October 2000 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 9.38 a.m.

 5            JUDGE MAY:  Yes, Mr. Nice.

 6            MR. NICE:  I regret that the position with the videotape is not as

 7    I had hoped it would be.  I have served a preliminary note on what is

 8    intended and what should be produced from the tapes that were made.

 9    Yesterday, the editing process which had been planned with available

10    resources was thwarted by the technician's need for a particular original

11    tape that came from the evidence unit, and then he made the decision,

12    which, of course, we have to respect and understand, that that had to be

13    recopied in order to be edited.  I'm afraid to say the technicalities of

14    this were beyond me, but the upshot of it is that the exercise is being

15    done this morning, and it is, I'm afraid, unlikely to be ready even for

16    this afternoon.  I apologise for that.  If there is time in the course of

17    the remaining hearings of the case, I had hoped to be able to play it.

18    The small schedule produced this morning shows a maximum of 87 minutes,

19    but I've set out the hope that we may be able to save time on that, either

20    by some further editings today or by use of some fast forward.

21            JUDGE BENNOUNA:  It is not possible for the Chamber to follow 85

22    minutes of video.  You can understand this, Mr. Nice.  I think what is

23    possible is to -- perhaps you can make a selection of the most important,

24    for the trial, parts of this video, and then we can follow these parts.

25    But 85 minutes, it's not possible to hear 85 minutes of video.  And I'm

Page 26618

 1    moving into French.

 2            [Interpretation] I suppose it affects the whole area, 87 minutes

 3    of the video.  But I believe the Chamber should be shown only the most

 4    relevant parts, the most relevant segments, that is, what we need for the

 5    hearing.  And you should make a selection out of those 87 minutes, a

 6    selection of fragments which you would show the Chamber.

 7            MR. NICE:  We've already made a selection in bringing it down to

 8    87 minutes.  As the Chamber will see, a large portion of that relates to

 9    sites that we videoed for Mr. Kovacic.  My proposal, as set out on the

10    document, is that we may indeed be able to reduce it further, and that's

11    what I'm going to achieve, I hope, today.

12            JUDGE MAY:  We'll move, then, to consider the rebuttal evidence.

13    We have, in that connection, the original submission by the Prosecution

14    and its more recent notice.  We have a response from Mr. Kordic.  We have

15    read those documents.  We will consider oral submissions, which can be

16    made, I would have thought, briefly, in the light of the very broad

17    submissions that have been made on behalf of those two parties.

18                          [Trial Chamber confers]

19            JUDGE MAY:  Mr. Nice, it may be that we should call on you to

20    begin with.  It seems that we're dealing -- we're going to deal with three

21    types of evidence at this stage:  One is the affidavit/formal statement,

22    another one is live evidence in rebuttal, and the third is any new

23    evidence which the Prosecution was not aware of during the course of its

24    evidence in chief, which is not strictly rebuttal evidence but in another

25    category.

Page 26619

 1            We've considered the jurisprudence of the Tribunal, and we distil

 2    these tests, certainly for rebuttal evidence:  One, does it deal with

 3    Defence evidence in chief and respond to that, as opposed to reinforcing

 4    the Prosecution case?  Two, does it deal with a significant issue as

 5    opposed to a peripheral issue, and is it therefore highly probative?

 6            Now, with those matters in mind, it may be sensible to deal first

 7    of all with the whole question of affidavits/formal statements.  As I say,

 8    we've read what you've said about the individual witnesses, but we'll hear

 9    your submissions and then we'll hear from the Defence.

10            MR. NICE:  Yes.  Your Honour, just give me one minute.

11                          [Prosecution counsel confer]

12            MR. NICE:  On the affidavit issue, Mr. Scott has taken the lead.

13    We haven't really decided how to partition out the work this morning, but

14    it's probably appropriate for him to deal with that, if that would be

15    acceptable to the Chamber, and I'd ask him to do so.

16            JUDGE MAY:  Yes.  Yes, Mr. Scott.  There's one matter I should

17    have put to Mr. Nice which perhaps you can assist us with, which is:  How

18    many of these witnesses are you going to rely on?  Your pleading says 12

19    or 13.

20            MR. SCOTT:  Yes.

21            JUDGE MAY:  But there are 26 that you've put before us.

22            MR. SCOTT:  Your Honour, we would intend to rely on all of them.

23    We're not -- to the extent that we're calling all of the evidence, we

24    wouldn't call -- we wouldn't offer the evidence if we weren't relying on

25    it, obviously.  But it is to -- it is being proposed that it be presented

Page 26620

 1    in three different ways, in the interests of covering the evidence that we

 2    believe the Court should consider at this stage and to do so in the most

 3    efficient way possible.  So we propose some witnesses live, some by

 4    statement, and some by transcript.  But if I understand the Court's

 5    question correctly, we'd be relying on all of the evidence, Your Honour.

 6            JUDGE MAY:  Very well.  Thank you.

 7            MR. SCOTT:  Your Honour, in terms of the statements, what the

 8    Prosecution has tried to do here at the end of this case is take to heart

 9    what this Chamber has directed all of us, all the parties to do since

10    before the trial started in April of 1999, and that is to seek ways to

11    present evidence as efficiently and effectively as possible and to take

12    advantage of such tools and devices that might be available under the

13    Tribunal's rules and practices to make the presentation of evidence

14    smoother and shorter rather than more difficult and longer.

15            It is not surprising that whenever the Prosecution proposes to

16    call witnesses live, the complaint from the Defence is it takes too long.

17    When the Prosecution proposes to call witnesses by statement, the

18    complaint is that that can't be done.  So it's obvious that which ever

19    position the Prosecution proposes in order to bring this case to

20    conclusion, the Defence, predictably, will object either way, one way or

21    the other.

22            What we have proposed, Your Honour, here is that certain of the

23    rebuttal witnesses be presented by way of formal statement and we propose,

24    and our papers address this, I'll only summarise here, that they be

25    submitted under Rule 89(C) picking up, as some of the recent Appeals

Page 26621

 1    Chamber jurisprudence has shown, a separate and distinct basis for such

 2    statements.  It's not just simply that it relies upon the basic and

 3    general rule of this Tribunal that adopts an inclusive rather than

 4    exclusive approach to the reception of evidence.  What we have suggested,

 5    Your Honour, is that these statements are no different in fashion than

 6    many statements that have been, frankly, accepted on both sides, excuse

 7    me, on all sides, both Defendants and the Prosecution.

 8            As to their reliability, Your Honours, we submit that we're not

 9    riding on a clean slate at this date of the proceedings.  The Chamber has

10    heard extensive evidence, perhaps sometimes more evidence than it would

11    like, but the point is this:  The Chamber can receive these statements now

12    in the full context of everything it knows.  The Chamber can assess the

13    reliability, the apparent consistency or, if the Court decides, the

14    inconsistency of these statements and give them the ultimate weight that

15    the Chamber chooses to.

16            If the weight of the evidence is corroborated -- corroborates or

17    is corroborated by these formal statements, then I suggest that there is

18    sufficient indicia of reliability that the Court should accept, especially

19    at this stage of the case, in rebuttal, and to meet the Court's proposed

20    timetable or timetable that this be done.

21            If the Court ultimately looks at the statements and believes and

22    reaches the conclusion that, based on what it knows of the evidence

23    presented over the past months of this case, they are so far out of

24    kilter, if I can say that, that they do not appear reliable, then the

25    Chamber can obviously make that ruling.  But there must be a way, Your

Page 26622

 1    Honour, we propose, there must be a way under the current rules of this

 2    Tribunal and if it isn't 94 ter and, frankly, with all the problems

 3    attended to that rule in its current form, then there is 89(C) as the

 4    Appeals Chambers recognised.  That is what we would propose, Your Honour.

 5            It is also in the nature of this, let me also make this point

 6    about what the Prosecution proposes.  The rebuttal case can also be

 7    properly viewed, I submit, as reinforcing or buttressing case in chief

 8    evidence which the Defence case has attacked, especially here when what

 9    we've seen, especially in the Cerkez case, situations where five or six or

10    seven witnesses or more have been called on a point where perhaps the

11    Prosecution has called only one witness or two witnesses based upon early

12    commitments elicited by the Chamber to limit the number of witnesses on a

13    particular point.

14            The most efficient way, without taking more time for the

15    Prosecution to respond, Your Honour, to those issues now is not to present

16    every additional witness live, but to present those statements, if you

17    will, in corroboration.  If you want to adopt the philosophy of 94 ter at

18    least in part, then they do, in fact, corroborate prior live testimony or

19    support the prior live testimony of witnesses that the Chamber has seen

20    and heard.

21            We have also made the point in our papers, Your Honour, that 94

22    ter does not particularly lend itself to the rebuttal case.  A rebuttal

23    case, by its very nature, is a reactive case.  The Prosecution could

24    hardly have anticipated at the beginning of its case the issues the

25    Defence would raise, the attacks on the Prosecution evidence that the

Page 26623

 1    Defence would make, and therefore can only respond.  And to the extent

 2    that any reading of Rule 94 ter would have required us to anticipate and

 3    seek these affidavits a long time ago, Your Honour, we submit the rule is

 4    not conducive and indeed can be read as not applying, or at least in this

 5    respect, to a rebuttal case as opposed to a party's case in chief.  That

 6    is our position, Your Honour, in a nutshell.  Our papers go on a little

 7    bit in greater detail.

 8            I would say that in final, my final point on this, Your Honour,

 9    would be that the Court will know, and I'll ask the Chamber to recall,

10    please, the difference of attitude and approach shown by the Prosecution

11    and by the Defence to this whole issue of affidavits and statements.

12    While the Defence have taken every opportunity to oppose and restrict and

13    limit the amount of this type of evidence received at every juncture, the

14    Prosecution, on the other hand, has taken, frankly, a liberal and

15    inclusive view, objecting only to those affidavits which were the most

16    offensive which most went to the heart of the matter, and those alone.

17            Many, many others, a large number of others, despite any technical

18    irregularities that might have been raised in the Prosecution's view in

19    trying to move this case forward, was to take a pragmatic approach and let

20    the Chamber have those statements and ultimately decide for itself and

21    give them the weight that the Court deems best.  That is in stark contrast

22    to the position that the Defence has taken consistent with their overall

23    approach, and that is agree nothing, oppose everything.

24            In the alternative, Your Honour, if the Court wishes, if the

25    Defence prevails on this point, if the Court wishes to have these

Page 26624

 1    witnesses considered live, they can be called live.  The Prosecution has

 2    simply tried to present an alternative method for presenting this

 3    information in an efficient manner at this juncture of the case.  Thank

 4    you.

 5            JUDGE MAY:  Mr. Scott, is there anything you want to say on the

 6    substance?

 7            MR. SCOTT:  In terms of the individual affidavits?

 8            JUDGE MAY:  Yes.

 9            MR. SCOTT:  Well, Your Honour, I could go through them one by

10    one.  I don't know if the Chamber wants to do that.  I am happy to if that

11    assists the Chamber but I'd hate to do it if the Chamber doesn't want to

12    hear that.  Is there a particular -- if the Chamber could give me some

13    guidance on a particular item, I'm happy to --

14            JUDGE BENNOUNA: [Interpretation] Mr. Scott, I have two questions

15    for you.  You are principally relying on Rule 89(C) or perhaps 94 ter.

16    But 94 ter wasn't really drawn up for rebuttal purposes.  Right.  One can

17    discuss that.  But you are talking about formal statements largely, and

18    that is what you are relying on and a very long article, 90(C).  But these

19    statements were taken by whom?  That is my first question.  Were they your

20    investigators who took those statements?  How were they taken?

21            MR. SCOTT:  May it please the Court.  You are right, we are

22    relying primarily on 89(C), but just for the purpose of making the records

23    clear and making our papers state, our submissions also being based

24    simultaneously or, in the alternative, on 94 ter to the extent that it can

25    be construed consistent with the rebuttal case, we want to preserve our

Page 26625

 1    position on that.

 2            To answer, Judge Bennouna, your question, they are formalised

 3    statements that have been taken by and formalised by a magistrate in

 4    Bosnia-Herzegovina.  They are not statements taken -- they are not simply

 5    interview statements taken by an ICTY investigator.  They are statements

 6    of the nature the Chamber has seen before where the witness has been taken

 7    to a magistrate in Bosnia, and they have been presented and formalised in

 8    that fashion.  And for -- I think I have most of them with me, but that's

 9    what they are.

10            JUDGE BENNOUNA: [Interpretation] And this magistrate has, I guess,

11    merely verified that it was the person, that the person who signed the

12    declaration was the author of the statement and that was then

13    authenticated, or was this statement taken before the magistrate or did he

14    simply authenticate the signature?

15            MR. SCOTT:  Your Honour, I have one in front of me.  They are

16    consistent, as I understand it, again, with the practice that was adopted

17    by all sides, at least in toward the latter part of the case.  This one

18    indicates that this witness appeared before the cantonal court in Zenica

19    on the 5th of October, was advised to tell the truth.  He confirmed the

20    statement that was made.  There is a statement that's attached to it.  It

21    says, "The proceedings pursuant to a request for assistance according to

22    the law on criminal procedure the Federation of Bosnia and Herzegovina

23    which regulates the procedure for providing international legal assistance

24    pursuant to requests from organs abroad."

25            As far as I know, Your Honour, it meets the precedent or practice

Page 26626

 1    that has been established in this Chamber.  I'm happy to tender one to the

 2    Chamber.

 3            JUDGE MAY:  Pass it up, please.

 4            JUDGE BENNOUNA: [Interpretation] And to follow up on this

 5    question, Mr. Scott, what about the Defence's right to cross-examine your

 6    witnesses?

 7            MR. SCOTT:  Your Honour, that is an issue that, candidly, is

 8    raised by all questions of hearsay evidence and all the questions

 9    concerning 94 ter.  And the philosophy of the Tribunal as reflected in the

10    Rules and we think other --

11            JUDGE BENNOUNA: [Interpretation] No.  No.  No.  Sorry.  I am not

12    referring to 94 ter.  I am referring to evidence which is not documentary

13    evidence but testimony given by a witness authenticated by a Bosnian

14    judge, by a Bosnian magistrate.  You know very well that the statute

15    has -- our statute says that the Defence is entitled to cross-examine.

16    That the right to cross-examine is a statutory right.

17            So this is the question.  I'm not referring to affidavits.

18            MR. SCOTT:  Very well, Your Honour.  The point -- thank you, I

19    appreciate the Court's question.  The point that I was trying to make was

20    simply to cite 94 ter and other of the rules which do reflect, I think,

21    some compromise or some accommodation between the efficiency and the

22    presentation of evidence and the Defence rights otherwise -- their rights

23    otherwise to confront and cross-examine the evidence.

24            But any of these, let me submit that any of these practices,

25    indeed the admission of hearsay evidence generally limits or imposes upon

Page 26627

 1    an absolute right to cross-examine the evidence.  There is no perfect

 2    right in the Tribunal's jurisprudence or indeed, as I was about to say, I

 3    think, in the modern jurisprudence of most countries and, as I am advised,

 4    including the European courts jurisprudence.

 5            THE INTERPRETER:  Could you slow down, Mr. Scott, please.

 6            MR. SCOTT:  I'm sorry.

 7            There are a number of ways in which there is some accommodation of

 8    those two competing values, if you will.  The Court is -- Judge Bennouna,

 9    you are absolutely right.  If the law is that there is an unqualified

10    right that can never be accommodated in any way to cross-examination, then

11    all of these devices, all of these methods must fail.  I don't think

12    that's the Tribunal's practice.

13            JUDGE BENNOUNA: [Interpretation] Thank you.

14            JUDGE MAY:  Now, is there anything you'd like to say in answer to

15    the Defence pleading which we've read?

16            MR. SCOTT:  Well, on -- affidavits not beyond what's already been

17    said, Your Honour, we've -- again, if the Court wants to go through some

18    of the live witnesses, we can do that separately, to the Court's pleasure,

19    but in terms of the formal statements that we've tendered or would tender,

20    I think, Your Honour, that states our position.

21            JUDGE MAY:  Or anything else.

22            MR. SCOTT:  Or anything -- all right.  Well, let me just point a

23    couple of examples, Your Honours, and I'm not -- these may or may not be

24    responsive to what the Court is thinking, so I can only pick a couple of

25    examples.  I'll be happy to address any other items or persons or proposed

Page 26628

 1    witnesses that the Chamber would like to talk about, obviously.  Let me

 2    just pick two to illustrate the point, I think.

 3            One is -- Your Honour, I can't list the -- I can't state the name,

 4    and, unfortunately, the list I brought with me for some reason wasn't

 5    numbered.  Let me find another -- if the Chamber has annex 1 to our most

 6    recent filing on the 13th of October.  Annex 1.  If the Court could look,

 7    for instance, to proposed Witness number 13.  I do not want to state his

 8    name in open court or describe him in any detail because to do so would

 9    identify him, of course, and it is a sensitive matter.

10            This is one of the witnesses that the Defence has objected to.

11    Let me respond to that by saying this:  For whatever reason, the Chamber

12    may recall, the Kordic Defence case, in particular, has gone on and on

13    about Sarajevo being under siege and Sarajevo being cut off, and at one

14    point, in fact, Mr. Sayers himself said, "There has been a lot of evidence

15    on that already concerning the siege of Sarajevo."  They went on and on

16    about how it was the HVO who was trying to relieve Sarajevo.  And the

17    Chamber may recall -- and particularly Judge May, because, Judge May, you

18    asked several questions of this witness on this topic -- Srecko Vucina

19    even testified that it was the Muslims who prevented Sarajevo from being

20    relieved, that the HVO were anxiously trying to relieve Sarajevo and to

21    send forces in that direction, and it was the Muslims who prevented

22    Sarajevo from being relieved.

23            In the midst of all this, the Kordic Defence presented evidence

24    about how Kordic, apparently as a friend to Muslims and as a great

25    humanitarian, even assisted or offered to assist in getting aid or

Page 26629

 1    assistance to Sarajevo.  The exact time of this, as presented by the

 2    Defence case, was in the period April to June 1992.  At one point, in

 3    connection with this, the Kordic Defence even elicited the testimony that

 4    Kordic was not anti-Muslim but "a great humanitarian" and wanted to

 5    "maintain good neighbourly relations with everyone in Bosnia."

 6            Now, quite to the contrary, Your Honours, the proposed testimony

 7    of this witness, number 13, is that, quite the contrary, during this exact

 8    same period of time, in May 1992, Mr. Kordic was involved in blocking and

 9    plundering a convoy that was on its way to Sarajevo, and it was only

10    released, only released by Mr. Kordic on the direct intervention of both

11    Franjo Tudjman and Mate Boban.  Now, that is direct rebuttal evidence.

12    That directly rebuts the Kordic Defence case.  It also goes to the

13    question of Kordic's power and position.  They have repeatedly said and

14    repeatedly claimed that Kordic had nothing to do with controlling

15    movements in Central Bosnia, that he had nothing to do with stopping or

16    blocking or robbing convoys, such as, another example, the Convoy of Joy.

17    This evidence is direct rebuttal evidence.  So we do believe it is proper,

18    Your Honour.

19            The second example that I will give you and then, absent questions

20    from the Court, I'll sit down, is the two related to, as the Defence calls

21    it, the Kaonik witnesses.  Those are Witnesses 17 and 18.  And Your

22    Honour, these aren't Kaonik witnesses at all; they are witnesses, again,

23    about Kordic's role, power, and authority.  The fact that that evidence

24    happens to touch about, in some fashion, Kaonik, doesn't make it evidence

25    about Kaonik.  Evidence about Kaonik, let me submit to the Court, would be

Page 26630

 1    this -- and what the Court at one point cut -- told us they were not

 2    anxious to hear more of was evidence, for instance, about the conditions

 3    of confinement at Kaonik:  "Well, it was crowded.  Well, we didn't get

 4    enough food.  We were taken for trench-digging."  And the Chamber at one

 5    point let its desires be known that you did not need to hear a lot of

 6    additional evidence on that.  This is not that kind of evidence.  This

 7    evidence goes to Kordic's authority and power.  One of the witnesses will

 8    say, and has a written document that says so, that he was released -- it

 9    says that he was released from Kaonik on Kordic's authority, on

10    Kordic's -- yes, Your Honour.  I apologise.

11            JUDGE ROBINSON:  I am at a disadvantage because of the structure

12    here.  It seems to me, though, that evidence about the command status of

13    the accused Kordic, that is essentially part of the Prosecution's case, I

14    mean generally, and I would have some difficulty in concluding that it's

15    permissible to submit, to adduce at this stage, this kind of evidence in

16    rebuttal.  I see generally as part of the Prosecution case and evidence

17    which should have been adduced by the Prosecution.

18            MR. SCOTT:  I can understand the Court's -- excuse me.  I can

19    understand, Judge Robinson, your view on that point.  Of course,

20    everything that we would present to some extent is related to the

21    Prosecution's case, because that has been -- Kordic's role and authority,

22    of course, has been -- and his involvement in the charged crimes has been

23    our position and been our case all along.  So, of course, everything

24    ultimately does relate to that.  These witnesses, Your Honour, we

25    submitted -- or excuse me -- we proposed to submit, again by formal

Page 26631

 1    statement, recognising that they might not be the type of witnesses that

 2    the Court would want to hear at this juncture live.  But given the

 3    confirmation of this -- in particular, the one exhibit, the document that

 4    the Chamber -- excuse me -- that the Prosecution had before, the document

 5    concerning released on Mr. Kordic's authority -- I'm sorry.

 6                          [Trial Chamber confers]

 7            MR. SCOTT:  -- was a copy that we had had at one point was -- and

 8    I think there was even a Defence complaint about that, and probably

 9    justified in this instance -- was very poor, and since that time we were

10    able to get -- go back to the witness and get a much more legible copy of

11    that particular exhibit.  Frankly, if the Court was of the view that it

12    didn't so much care about hearing from the witness but it would accept the

13    exhibit as having essentially become available in a legible form for the

14    first time, we would be happy to tender the exhibit without the witness.

15    And the only reason we offered it by -- well, the reason we offered it by

16    formal statement, or proposed to do it by formal statement rather than

17    live was it seemed like a small point, or at least a narrow point, to call

18    the witness live.  I understand, Judge Robinson, your concerns.

19            JUDGE ROBINSON:  I think my point really is that the evidence

20    seems to be additional rather than rebuttal.

21            MR. SCOTT:  Well, I can only respond, Your Honour, I think, the

22    way I have.  I understand the Court's point.  Our major concern in

23    response to the issues that the Defence raised is that this was the

24    maligned evidence about Kaonik, and our basic position is, recognising

25    your concerns, Judge Robinson, is this is not Kaonik evidence; it's

Page 26632

 1    evidence about Kordic's authority and powers.  I think that's the best

 2    response -- let me just look at my notes, if I can.

 3                          [Prosecution counsel confer]

 4            MR. SCOTT:  The only other thing I would come back to, Judge

 5    Robinson, in response -- sorry.

 6                          [Trial Chamber confers]

 7            MR. SCOTT:  -- is that, again, it is true that such

 8    evidence -- such type of evidence was submitted certainly in the

 9    Prosecution case in chief.  But this was the continual theme of repeatedly

10    over and over the Defence case that this man had no military power or had

11    no power in connection with the military prisons, and we're simply

12    responding to that evidence as well.  But I think that's the only -- I

13    won't take the Court's time further, unless there are other questions.

14            JUDGE MAY:  Thank you.

15            MR. SCOTT:  Thank you.

16            JUDGE MAY:  Mr. Sayers, we have your pleading.  Is there anything

17    you want to say in response to the Defence -- the Prosecution?

18            MR. SAYERS:  Generally, Mr. President, no.  We've put our position

19    in our pleadings, and I just apologise to the Court for the length of

20    them.  But to paraphrase Blaise Pascal, and with apologies to the Court,

21    "Je n'ai pas eu le loisir de la faire plus courte."  And my apologies to

22    Mr. Lopez-Terres too.  We've put our position in our papers and I'd like

23    to address three points, if I may, very briefly, the first being Rule 94

24    ter, the second being Witness number 13, discussed by Mr. Scott, and the

25    third being the Kaonik evidence proposed by the Prosecution.

Page 26633

 1            Turning to the Rule 94 ter issue, I confess to being somewhat

 2    incredulous that we're having this discussion after the Appeal Chamber's

 3    decision which emphasised the importance of the rights of

 4    cross-examination and other factors in connection with the receipt of

 5    affidavits and formal statements.  In our view, this is a simple matter.

 6    The Rule is clear.  We urge the Court to apply the Rule.  The Appeal

 7    Chamber decision's ruling is the essence of simplicity.  It is not

 8    complicated.  It makes the observation that there are very few exceptions

 9    to the general rule that cross-examination should ordinarily be permitted,

10    and it articulates what those exceptions are.

11            In response to the argument that the Rule does not apply to the

12    rebuttal phase of the case, yes, it does.  There's no exception in this

13    Rule that says it only applies to cases in chief.  It applies to all

14    cases -- cases in chief, rebuttal cases and rejoinder cases -- and there's

15    nothing in the Rule that supports the argument made by the Prosecution.

16            And finally, with respect to observations regarding the operation

17    of the Rule and the assertion that there have been problems with it, we

18    dispute that.  There have been no problems with the operation of this Rule

19    whatsoever.  We found it very easy to obtain the authentication of

20    magistrates in the Republic of -- or in the Federation of

21    Bosnia-Herzegovina, and I assume the Prosecution has too.  The Rule works

22    very well.  And the Rule is designed for the corroboration of live

23    testimony; and when contentious evidence has been offered, the Trial

24    Chamber has had absolutely no difficulty whatsoever in calling the witness

25    live for cross-examination, and, in our respectful submission, the Rule

Page 26634

 1    has worked very well.

 2            With respect to Witness number 13, we would respectfully submit

 3    that this witness proposes to give evidence regarding convoy issues in

 4    1992, issues of the utmost peripheral nature, if I may respectfully

 5    suggest.  Mr. Kordic's case has not been that the HVO tried to relieve the

 6    siege at Sarajevo, and I am at a loss to understand what points Mr. Scott

 7    was actually making.  The point that we were making was that Sarajevo, the

 8    capital, was surrounded, it was cut off, and that the structures of formal

 9    government broke down and simply didn't work.  That was our argument, and

10    this witness doesn't really give any evidence in response to that.  But it

11    should be noted that this witness does give evidence regarding a set of

12    notes that he supposedly made of a conversation with trial counsel for

13    another accused in this Tribunal.  And I'm not going to dignify that

14    proposal, the proposal to introduce that sort of a document by way of an

15    exhibit or to introduce testimony.  I'm not going to dignify it with any

16    discussion.  We've made our position clear in our papers and we have

17    nothing to add to that.

18            Turning to the Kaonik evidence, this evidence was available to the

19    Prosecution during the presentation of its case in chief.  There isn't any

20    contention that the document itself that features in Mr. Scott's

21    discussion is so-called Zagreb evidence, the only exception that I'm aware

22    to the general rule that the Prosecution has to introduce relevant

23    documentary exhibits during its own case.

24            But let me just say things on this point and they both come from

25    the Delalic decision.

Page 26635

 1            THE INTERPRETER:  Could you slow down, Mr. Sayers, please.

 2            MR. SAYERS:  We have attached this -- my apologies to the

 3    interpreters.  We have attached the Delalic decision to our papers as

 4    annex number 5 and the two points that I would like to highlight appear on

 5    page 7.  The Prosecution in that case attempted to call Rajko Dordic as

 6    one of its rebuttal witnesses.  Through Mr. Dordic, the Prosecution

 7    attempted or proposed to introduce a release form that was signed by none

 8    other than Zejnil Delalic, the accused himself.

 9            It was proposed that Mr. Dordic would produce and authenticate

10    that release document said to have been recently obtained by the

11    Prosecution, according to the Trial Chamber's decision.  Permission to

12    call that witness as a rebuttal witness denied.  That sort of evidence

13    should have been called in the case in chief.  That's one general point.

14    But the next point relating to the proposal to call Stephen Chambers as a

15    witness is even more pertinent and undergirds the argument that we've made

16    in our motion regarding these two witnesses.

17            Stephen Chambers was an ICTY investigator and employee of the

18    Prosecution, and the Prosecution proposed to introduce their own employee

19    to rebut, according to the Trial Chamber, the evidence of a number of

20    Defence witnesses testifying that Zejnil Delalic had no authority over the

21    Celebici prison.  It was proposed that the witness would testify regarding

22    certain documents, and those documents were said, according to the Trial

23    Chamber, directly and circumstantially, to prove the scope of authority of

24    the accused.  Precisely the same argument that the Trial Chamber makes

25    here.  What did the Trial Chamber do?  No.  That's the kind of evidence

Page 26636

 1    that you should have put on in your case in chief, and you can't put it on

 2    by way of rebuttal, and that was the express ruling of the Delalic Trial

 3    Chamber.  And, I would --

 4            JUDGE MAY:  I was confused for a moment, of course, because we've

 5    got a Major Guy Chambers here.

 6            MR. SAYERS:  Different Chambers.

 7            JUDGE MAY:  Different sort of gentleman, yes.

 8            MR. SAYERS:  I could make other points, but they would simply be

 9    repetitive, Your Honours, of the points made in our submissions.  The

10    Court well knows how long the Prosecution's case took.  The efforts of the

11    Prosecution exerted in order to avoid being subjected to a time limit.

12    They've had 136 days to present their own evidence in chief through 114

13    witnesses, and 31 transcript witnesses.

14            Furthermore, we introduced and we told the Court when we gave it a

15    firm time limit, which, I might add, we beat, in our opening statement,

16    told the Court we were introducing no Kaonik evidence and we did not.  Our

17    evidence addressed the case put on by the Prosecution in the case in

18    chief.  That's what we were told by the Trial Chamber to do, and that's

19    what we did.  It's too late now to introduce new evidence that should have

20    been introduced at that time and to make a new case against Mr. Kordic.

21            That completes the points I have to make unless the Trial Chamber

22    has any questions of me.

23            JUDGE MAY:  Thank you.  Yes, Mr. Kovacic.

24            MR. KOVACIC: [Interpretation] Your Honours, I believe that a great

25    deal has already been said, and I fully second the argument presented by

Page 26637

 1    Mr. Kordic's counsel and I do not wish to waste your time by adding

 2    anything else because everything I believe has been already said by now,

 3    but, of course, I am at your disposal to answer any questions if you might

 4    have them.

 5            JUDGE MAY:  Thank you.

 6            MR. SCOTT:  Your Honour, may I please respond to the three points,

 7    four points.  And I should say that, as Mr. Nice indicated, we had not

 8    really come up with any formal division of labour this morning and let me

 9    just say that there may be some additional general points that Mr. Nice

10    had intended to make and he may wish to make some comments when I sit

11    down.

12            Four brief points, Your Honours, the Chamber recognised a few

13    minutes ago when it summarised where things stood that there were three

14    areas of issues concerning evidence or types or groupings, if you will, of

15    evidence.  The third area or group that the President made reference to

16    was evidence not previously available.  Let me just address that very

17    briefly.  And I'm just -- I'm concerned only because, Your Honour, in not

18    going through each witness on our list individually that I may -- I do not

19    want to put us, obviously, at a disadvantage by not addressing each one

20    nor do I want to take the Chamber's time unnecessarily.

21            JUDGE MAY:  Yes.  I mean, what you're doing now is responding to

22    what Mr. Sayers said.

23            MR. SCOTT:  Yes.  And I just wanted to say in that regard and I

24    said it would be short, concerning several witnesses at the end and again

25    because of the -- if I could -- sorry, Your Honour, the copy that I

Page 26638

 1    printed this morning, for some reason the numbering was off, and I

 2    apologise for that.

 3            The witnesses that are indicated as 21, 22, and 23, I just simply

 4    wanted to make it clear and, for the record, that may also very well be

 5    considered.  Those witnesses may well be considered and, in fact, would be

 6    witnesses or evidence not previously known or available.  All three of

 7    those witnesses flow directly from documents first obtained in Zagreb.

 8            We listed them here because of some uncertainty because of the

 9    scope of the Court's Ruling and, to avoid any issue that might arise if we

10    didn't list them, we listed them.  But as an example, I can tell the

11    Chamber that those individuals and the potential evidence they had was

12    first made known to us through the Zagreb evidence.  One of the documents

13    in which -- excuse me, one particular document which the Chamber's

14    directed some attention to recently is one of those which directly relates

15    to at least two of those witnesses.  It's a document about certain reports

16    from some HVO presidents in Central Bosnia, and I'll leave it at that.

17    But two of these witnesses relate directly to that document first obtained

18    from Zagreb recently.

19            Concerning the Sarajevo evidence, Your Honour, we stand by our

20    summary.  By example, the Chamber can look at Ivica Kristo and Srecko

21    Vucina, and this had nothing to do with the government being cut off, it

22    had to do, and the evidence was specifically clear, with relief getting to

23    Sarajevo or assistance, either arms or humanitarian aid getting to

24    Sarajevo.  And the testimony of the witness was clear that Mr. Kordic was

25    cited as a humanitarian who was doing, who was assisting organising,

Page 26639

 1    trying to assist in getting this relief through during the very same time

 2    period, by that witness' testimony and by Mr. Vucina's testimony, as the

 3    contrary evidence submitted by Witness 13.

 4            Two final points.  Your Honour, our papers have indicated the

 5    Defence teams repeatedly failed to put their case properly to various

 6    Prosecution witnesses.  The Chamber made note of that on several

 7    occasions, and there's one particular occasion that we've cited in our

 8    papers where the President had an exchange with Mr. Stein.  That happened

 9    throughout the case, and indeed some of these witnesses or their former --

10    such as, for instance, Witness 2, the fact that he is proposed here is

11    again because of issues --

12            JUDGE MAY:  I think we can't go into this.  This wasn't raised by

13    Mr. Sayers.

14            MR. SCOTT:  I understand, Your Honour.  If I can just make one

15    final point and this simply is -- and I am doing it, Your Honour, because

16    I was trying to be brief before but I didn't know if we were doing a

17    general final address.  But one final point:  The Kordic Defence has

18    looked to the Kupreskic and Furundzija cases, for example, as being

19    situations where there was a number of rebuttal witnesses.  Your Honour,

20    those cases were dramatically -- and one of them, in particular, the

21    Chamber's well familiar with, of course, but those cases were dramatically

22    smaller and different than this case.  I would submit to the Court that,

23    considered proportionately, the fact that three rebuttal witnesses may

24    have been called live in Kupreskic and two in Furundzija would not be at

25    all disproportional to fact that, in a case of this magnitude, the

Page 26640

 1    Prosecution might seek to call 10 to 12 witnesses.  We don't think that

 2    that's out of proportion at all.  Thank you.

 3            MR. SAYERS:  I hate to ask for the last word, Your Honour, but if

 4    I might have 20 seconds.  With respect to Witness 21 and Witness 23 on the

 5    -- presented by the Prosecution's proposed rebuttal witnesses, no

 6    contention can seriously be made that the identity of these witnesses was

 7    not known until documents were recently identified.  Witness number 21,

 8    for example, is all over the milinfosums.  All over them.  Witness 23 was

 9    the president of the HVO in Novi Travnik in 1993 and early 1994.  How can

10    any contention seriously be made to this Trial Chamber that the identity

11    of these potential witnesses was not known to the Prosecution?  We

12    respectfully submit that that is --

13            JUDGE MAY:  Well, I expect that what is being said is not that the

14    identity wasn't known, but the fact that they were available as witnesses

15    was not known, which is a rather different position.

16            MR. SAYERS:  Perhaps, Mr. President, but the inquiry naturally

17    arises:  Why not?  Why in the world would the Prosecution not try to have

18    a word with the military commander in Busovaca area?  Why would the

19    Prosecution not attempt to have a word with the HVO president in Novi

20    Travnik?  It's been five years since the confirmation of the original

21    indictment.  I don't need to emphasise that or the other points that I

22    have made, but the appropriate rhetorical response, if you will permit me,

23    to the question posed is:  Why not?  And that's all I have to say.  Thank

24    you.

25            JUDGE MAY:  We've heard enough, I'm afraid.

Page 26641

 1            MR. NICE:  Your Honour, yes, can I just explain a couple of

 2    things, though, because I had understood when you invited us to start, I

 3    understand.

 4            JUDGE MAY:  I said:  Had you got anything else to say?  It was

 5    clear, I suggest.  Because we can't go on.

 6            MR. NICE:  No.  No.  But one thing, however, you referred to two

 7    pleadings.  In fact there are three.  I think the Chamber may have

 8    overlooked, if it was only referring to two, the intervening pleading of

 9    the 4th of October which sets out a lot of the arguments and, indeed,

10    which deals with the Kaonik witnesses, in particular.  The order of

11    pleadings was the preliminary pleading which was voluntary and simply to

12    help, then the rebuttal status pleading, and then the other pleading.

13            We've only had, of course, the Defence documents since yesterday

14    so we haven't had long to look at it, and it may be that if you won't

15    permit me to say anything else, you'll permit me to just deal with one

16    concession because I think, in light of the way the Chamber initially this

17    morning divided up the topics between affidavit, new, and so on, there is

18    certainly one bit of evidence which might be said to be new but

19    admissible, and that's, I think, at 14 and 15, which is the telephone

20    intercept witnesses.

21            Now, the Chamber will recall that the man, Husic, was called, was

22    not cross-examined despite notification and warning on the day after his

23    evidence that he hadn't been properly cross-examined, and that matters of

24    cross-examination should be raised.  And then, finally, with the expert

25    witness, the Chamber elicited from the Defence that the whole conversation

Page 26642

 1    was being challenged and it was in those circumstances that Husic is

 2    recalled.

 3            Now, as to those witnesses, the Chamber may conclude two things:

 4    One, that had the evidence of Husic been properly cross-examined on the

 5    first occasion, why, then, the first of those two witnesses, the man who

 6    heard the conversation, would have been added to the list.  And, indeed,

 7    it may further conclude that this is one of those rare occasions in the

 8    Prosecution case, and for the reasons we've already advanced, where it

 9    would have been possible to use the affidavit system as advanced in 94 ter

10    as presently understood.  Because that's one of the occasions where there

11    was a discrete issue.

12            JUDGE BENNOUNA: [Interpretation] Mr. Nice, do you mean by this

13    that 14 and 15 are statements, actually?

14            MR. NICE:  No.  Our suggestion would be that (redacted) comes live

15    because, of course, he is the witness who can speak directly of hearing

16    the conversation and in -- had we known that it was being challenged as

17    opposed to being admitted, which was what was the previous submission, the

18    voices being admitted, subject to whatever was being hinted at, then he

19    would be added to our list.  But Begovic, whose statement is less

20    specific, would have been an affidavit support witness.  You'll see on our

21    schedule to the documents set out to our latest pleading that number 14 is

22    proposed live and 15 by formal statement.  But my point is to accept in

23    respect of these and these alone that they may qualify as additional but

24    for entirely good reason.

25            Our position on the balance is that they are all, indeed, proper

Page 26643

 1    rebuttal reasons for all the reasons that are set out in the schedule,

 2    even if they also contain other evidence.

 3            JUDGE MAY:  But (redacted), if you had known about his existence

 4    or if you had known that he was a likely witness, you would have called

 5    him.

 6            MR. NICE:  Yes.

 7            JUDGE MAY:  Well, he's in no sense rebutting.  Only in the most

 8    general sense is he rebutting in the sense that Mr. Kordic has put matters

 9    in issue.  What you are saying is that here is a new witness we knew

10    nothing about, he is highly probative, and therefore he should be called.

11    That's surely your position.

12            MR. NICE:  Your Honour will recall from the original document

13    filed in respect of his case that the argument was presented in a number

14    of ways not the least with a view to allowing that witness to be called

15    ahead of Cerkez.  First, it was made clear that he was a rebuttal witness

16    for the reasons set out in that document, and which we don't resile at all

17    and which indeed were conceded by Mr. Sayers at that stage for he rebutted

18    a number of assertions that were being made on behalf of both defendants.

19    That remains the position at the moment.

20            We left open, and it wasn't necessary to argue at that stage, that

21    that witness would also have been an admissible witness by way of

22    reopening the case or, indeed, by a Rule 98 witness for the Chamber to

23    call, but that wasn't necessary for it was conceded then that he was a

24    rebuttal witness so found by the Chamber following argument and, indeed,

25    the concession was made, was said to be appropriately made.  So that that

Page 26644

 1    witness, in our respectful submission, is indeed a rebuttal witness.  Not

 2    only does he rebut assertions of non-presence advanced by the defendant

 3    Kordic at relevant scenes on the night in question, but he rebuts other

 4    matters, for example, assertions of identity of the political and the

 5    military party or distance of Kordic from the military police.

 6            He is a witness strongly rebutting of both Defence cases.

 7            JUDGE MAY:  We've had enough.  Yes.  We'll rule now.  We'll

 8    consider this.

 9            Mr. Nice, I don't want to be discourteous but, you know, we can't

10    go backwards and forwards.  Although it's right that I invited the last

11    intervention, I think we must bring it to a close.

12            MR. NICE:  Certainly I -- so be it.  I'm sure the Chamber will

13    recognise, and I'm very concerned that I should at least say this, which

14    is general:  I'm sure the Chamber will recognise, when faced with a

15    pleading of the type and in the form and with the extensive arguments

16    raised last night, there will be a lot of matters that in full and

17    limitless discussion we would want to raise and with which we disagree.

18    We have tried this morning to be economic by focusing, as invited, on

19    specific issues although there would be much more to say.

20            JUDGE MAY:  Very well.

21                          [Trial Chamber confers]

22            JUDGE MAY:  We'll consider this.  We'll sit again at 12.00.  If

23    the matter is not resolved, we'll pass through a message.

24                          --- Recess taken at 10.42 a.m.

25                          --- On resuming at 12.36 p.m.

Page 26645

 1            JUDGE MAY:  This is the ruling of the Trial Chamber.  The

 2    Prosecutor seeks to call 27 witnesses in rebuttal, under three general

 3    headings: live rebuttal witnesses, the affidavits or statements of

 4    witnesses in rebuttal, and new evidence not available to the Prosecutor

 5    during his evidence in chief and which he submits should be called ex

 6    improviso as a result.

 7            The first matter to deal with is the form of the evidence.  The

 8    Prosecution submit that in some cases, instead of live witnesses,

 9    affidavits or formal statements should be admitted.  The Defence object to

10    this course.  We agree with that objection.  In relation to the submission

11    that witnesses could give evidence by means of affidavit, any submission

12    of that sort would be governed by Rule 94 ter.  The Appeals Chamber has

13    recently said that the procedural steps or requirements in that Rule must

14    be strictly followed.  In our judgement, that applies to rebuttal evidence

15    as to any other evidence given at the different stages of the trial.

16    These requirements have not been fulfilled in the case of the witnesses

17    who it is sought to call; therefore, their evidence is not admissible by

18    way of affidavit.

19            Mr. Scott's next submission was that the statements should be

20    admitted under Rule 89(C).  In our view, that argument is not sustainable

21    either.  That Rule was not designed for the wholesale admission of witness

22    statements, and necessarily, therefore, hearsay at this stage of the

23    case.  So therefore, that course is not open either.  Nonetheless, we have

24    considered the evidence of the various proposed witnesses as though all

25    were to be called live, and we shall rule on the admissibility of each

Page 26646

 1    accordingly.

 2            Turning to the law, Rule 85 permits the Prosecution to call

 3    evidence in rebuttal.  However, the Tribunal practice has been to limit

 4    such evidence strictly to matters arising in the Defence case which were

 5    not already covered in the Prosecution case.  In Furundzija, the Trial

 6    Chamber, in its decision of the 19th of June, 1998, stated that the

 7    purpose of the Rule was to challenge Defence evidence which could not

 8    reasonably have been foreseen and not to adduce evidence which would

 9    properly have been proved as part of the Prosecution case.  In Celebici,

10    the Trial Chamber, in its order of the 30th of July, 1998, said that

11    rebuttal evidence is evidence which is limited to matters which arise

12    directly and specifically out of the Defence evidence, and the Trial

13    Chamber in that case allowed the Prosecution to call only one of four

14    anticipated rebuttal witnesses.

15            There was a further application to call evidence by the

16    Prosecution.  On this occasion, the Trial Chamber said that the evidence

17    had existed ab initio and did not arise ex improviso, and the failure to

18    use it during the Prosecution case had not been satisfactorily explained.

19    That's at transcript page 15519.

20            In Tadic, similarly, a rebuttal witness was permitted to testify

21    only to issues raised by the Defence.  Judge McDonald, presiding, said

22    that during the argument that the Trial Chamber's concern was with a

23    practice of offering additional evidence which the party had an

24    opportunity of offering in the case in chief, transcript 6291 to 292.

25    That this is the practice is illustrated by the eight cases in which

Page 26647

 1    rebuttal evidence has been given.  In none of them did the rebuttal case

 2    last more than five days.  In the two Lasva Valley cases which have

 3    similarity with this, Kupreskic and Blaskic, the rebuttal involved five

 4    witnesses in five days in one; and in Blaskic, two witnesses in four

 5    days.

 6            The application must also be seen against the background of the

 7    length of this case.  It began in April 1999.  There have been 228

 8    witnesses to date, including 115 for the Prosecution.  The case has taken

 9    222 days, and 3.213 exhibits have been filed.  As a result, a great many

10    issues have been raised, some much more significant and important than

11    others.  Against this background, the Trial Chamber has to bear in mind

12    the duty under the statute to ensure a fair and expeditious trial.

13            In our view, to allow an extensive rebuttal case and evidence

14    would be to contravene that duty.  Therefore, only highly probative

15    evidence on a significant issue in response to Defence evidence and not

16    merely reinforcing the Prosecution case in chief will be permitted.

17    Evidence on peripheral and background issues will be excluded.

18            Turning to the witnesses whom the Prosecution proposed to call,

19    and using the numbers in the Prosecutor's filing of the 13th of October

20    2000, we make the following rulings.  I shall do this to some extent in

21    shorthand form in order to try and save some time.  When I refer to

22    evidence as "reinforcing," that means evidence simply reinforcing the

23    Prosecution case in chief and therefore not proper for rebuttal.

24    "Peripheral" refers to a peripheral issue and therefore not admissible,

25    likewise not significant.

Page 26648

 1            All the evidence is excluded for the reasons which will be given

 2    against each number unless it is specifically ruled that the evidence is

 3    admitted.  Starting then with number one:

 4                1.  Reinforcing, peripheral.

 5                2.  A witness we've heard already, not on significant issues.

 6                3.  Not significant.

 7                4.  To be admitted.  There is no objection from the Kordic

 8    Defence and this is a matter proper for rebuttal.

 9                5 and 6.  Reinforcing and cumulative.

10                7.  Not significant, not highly probative.

11                8.  Reinforcing and cumulative.

12                9.  To be admitted.  No objection on behalf of Mr. Kordic,

13    properly the subject of rebuttal evidence.

14                10.  Admit.  Proper rebuttal evidence dealing with evidence

15    called by the Defence.

16                11.  Too general to be probative on the previous point, that

17    is under 10.

18                12.  Admit.  This is evidence of a new witness not known to

19    the Prosecution, unavailable to them until very late in the trial.  It is

20    potentially highly probative and the Trial Chamber bears in mind the duty

21    to ascertain the truth of what occurred.

22                13.  Peripheral.

23                14.  Admit.  This is the subject of proper rebuttal evidence

24    in our view, and on a significant issue.

25                15.  Too general to be probative.

Page 26649

 1                16.  Not relevant at this stage.

 2                17 and 18.  Reinforcing.

 3                19.  Peripheral.

 4                20.  Peripheral, and I would add this:  That evidence going

 5    merely to reinforce the credibility of a Prosecution witness should not,

 6    in our view, normally be admitted in rebuttal.

 7                21 and 22.  To be admitted.  These are new witnesses,

 8    potentially highly probative.

 9                23 and 24.  These are new witnesses, but in our view in a

10    different category and of doubtful probative value having regard to the

11    summary that we have seen.

12            Finally, numbers 25 to 27, cumulative and reinforcing.

13            So summarising our ruling, we shall admit the evidence of numbers

14    4, 9, 10, 12, 14, 21, and 22.

15            I should say, speaking for myself, that there are two days which

16    have already been made available for (redacted) and I would hope that the

17    other matters could be dealt with within four days or so.

18            MR. NICE:  I'm sorry, I didn't know if Your Honour had finished.

19    Sorry.

20            JUDGE MAY:  I have.  But just to add this, that there are matters

21    of disclosure of identities.

22            MR. NICE:  I was going to turn to that issue.  It may be that it

23    would be preferable to do it briefly in private session.

24                          [Private session]

25    [redacted]

Page 26650













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Page 26651













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Page 26652













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Page 26653

 1    [redacted]

 2    [redacted]

 3    [redacted]

 4                          [Open session]

 5            MR. NICE:  Your Honour, in relation to outstanding exhibits,

 6    Ms. Kind and the Kordic Defence legal officer have worked very well and

 7    cooperatively in very substantially reducing any outstanding challenges.

 8    The Court will see set out very limited remaining objections.  And if we

 9    look at the document starting at page 3, page 3 is really an

10    administrative exercise simply in tidying up potentially duplicative

11    exhibits.  There are some outstanding translations.  They've been

12    provided, I'm told, today.  It's unlikely they're here.  It's unlikely

13    there'll be any issue, providing we can reserve our position on that.  And

14    then there's just B, C, D and E, which I think are self-explanatory.

15            JUDGE MAY:  Let's look at them.  B, the objection is that

16    Mr. Fleming gave evidence for the Prosecution and these are his

17    handwritten notes.

18            MR. NICE:  Correct.

19            JUDGE MAY:  Can you remind us if there was any discussion of those

20    notes at all?

21            MR. NICE:  No.  The odd thing about this witness was that he gave

22    evidence, and I seem to remember with a whole half a day available to

23    cross-examine him which had been timetabled in, and the Defence said they

24    didn't want to ask him any questions.  It seems to me that if they didn't

25    want to ask him any questions, then his notes hardly have any value.  They

Page 26654

 1    haven't been put to him, and I can't see the possible purpose for adducing

 2    them.

 3            JUDGE MAY:  Did he refer to them at all?

 4            MR. NICE:  I don't think so.

 5            MR. SAYERS:  I must say, Mr. President, it seems anomalous that

 6    we're being criticised for not cross-examining a witness and saving time

 7    in that regard.  But if I may, with respect to Mr. Fleming's notes -- and

 8    I just received this document today, so I'm just reacting off the cuff, if

 9    I may -- there isn't any question about the authenticity of Mr. Fleming's

10    notes.  They were produced by the witness.  They were copied.  Given the

11    fact that there was absolutely no dispute raised regarding authenticity or

12    accuracy, I can't imagine what the objection to the admission of the

13    exhibits would be.  Exhibits similar to these have been admitted in the

14    past, and there's no reason why this exhibit should not be treated in the

15    same way.

16                          [Trial Chamber confers]

17            JUDGE MAY:  We think there's force in the Prosecution objection.

18    The fact is this, that if you want to put a witness' notes in, one who is

19    giving evidence, then he must have the opportunity to comment on them.

20    And this witness not having had the opportunity, we think it wrong to

21    admit them.  So that exhibit will be excluded.  Yes.

22            MR. NICE:  Your Honour, the next category, subparagraph C, relates

23    to expert evidence admitted without experts themselves giving evidence.  I

24    pause to add, I propose, theoretically there is one other way that expert

25    evidence could be properly put into evidence, that is if it's put in

Page 26655

 1    cross-examination to an expert of the other side and the expert adopts

 2    it.  But that hasn't happened with any of this material.

 3            One is a ballistics report by the Dutch Ministry of Justice, and

 4    the other is a compilation of sociological articles which, in each case,

 5    should have been taken through an expert if one was properly called or, at

 6    the very least, been put through with an expert.

 7            The Chamber will recall in this regard, and in relation to the

 8    sociological articles that the Prosecution witness, John Alcock, who the

 9    Chamber has seen twice, was initially dismissed in a rather -- in an

10    unhappy way by Mr. Stein declining to cross-examine him.  The witness came

11    back, the Chamber will recall, to give, it may be thought, extremely

12    considerable assistance in relation to the experts called by the Defence.

13    But the reality is that there were opportunities with their own witness or

14    with Dr. Alcock to call this material.  In each, this opportunity was not

15    taken.  I can't see how the material can be of assistance.

16            MR. SAYERS:  The report that is Exhibit D324/1, Tab 13, I think I

17    recall what that is, Mr. President.  It's a report that was introduced by

18    the Prosecution in the Kupreskic case, specifically establishing the

19    absence of any fire accelerant substances in Ahmici.

20            Now, the objection that the Prosecution makes, just looking at the

21    document that I see here, is that they've not had the opportunity to

22    question the expert.  Well, Your Honour, it was the Prosecution's own

23    expert in Kupreskic and the Prosecution's expert was, in fact,

24    cross-examined in Kupreskic.  If the Court thinks that it needs the

25    Kupreskic expert testimony too, then that should be -- if the Prosecution

Page 26656

 1    insists upon that, then we wouldn't object to the admission of that

 2    testimony.

 3            But the document is clearly relevant.  It deals with issues that

 4    bear on some contentions made in the Prosecution's case, and we would

 5    respectfully submit that it's admissible and should be admitted.

 6            JUDGE MAY:  It was fire accelerant in one house.  I remember the

 7    evidence.  It was one house in which a family had been killed and the

 8    bodies burned.  And if this is it, then the investigators went to look at

 9    it.

10            MR. SAYERS:  With respect to the ballistics, Mr. President, if I

11    remember correctly, there's been some suggestion that large calibre

12    machine-guns were used in Ahmici and a significant quantity of spent shell

13    casings or spent bullet cartridge casings were found and analysed by the

14    expert and all found to be 7.62 millimetre, fairly standard infantry

15    ammunition and nothing out of the ordinary there.

16            With respect to D329/1, my recollection was this was simply a

17    compilation for the Court's convenience of the articles that were referred

18    to in the expert witness report prepared by Dr. Mestrovic, and that's the

19    reason why we put them in there for the Court's assistance.

20                          [Trial Chamber confers]

21            JUDGE MAY:  We think, given the source of the first expert report

22    which is referred to, particularly if Mr. Sayers is right and it was a

23    report from Kupreskic, but given the source of it, in any event, and the

24    fact that it goes to background matters, we will admit.  As for the

25    sociology articles it reviews, well, for what they're worth, we'll admit

Page 26657

 1    them.

 2            Yes.  The death certificates.

 3            MR. NICE:  Yes, I'm afraid I can't follow the ground of admission

 4    or reported admission of these.  They seem to be death certificates and

 5    pictures, and I'm not sure how the connection is made or what the

 6    relevance is, can see what the relevance is.  I'm afraid I can't follow

 7    those two.

 8            MR. SAYERS:  Mr. President, I believe, but I'm not sure without

 9    checking, but I believe that these death certificates and pictures were

10    death certificates relating to the family of this lady, Witness DA, who

11    testified in our case, who were executed before her eyes in Kakanj.  I

12    cannot seriously believe that the Prosecution would insist that we would

13    distress the lady further in showing her pictures of her executed husband

14    and three sons and death certificates of them.  There is no contest as to

15    authenticity as to these items, and they are certainly admissible and

16    should be admitted.

17            MR. NICE:  Your Honour, it's quite right there is no contest.

18    What I can't do is draw the connection between one and the other.  They're

19    just pictures.  In any case, the relevance is limited, as has been

20    explored.  It's just going to excite emotions, really.

21            JUDGE MAY:  That's not a problem, the latter.

22            MR. NICE:  If they are connected in some way that makes it clear

23    what they are, then of course we don't object.  There simply is no tie

24    that I am able to find.

25            JUDGE MAY:  For the moment, we'll admit them.

Page 26658

 1            MR. NICE:  And the last matter is the wholesale admission of

 2    excerpts from books in the course of the judgement on outstanding

 3    exhibits.  At the end of our case, I think there was an extract from a

 4    book by Major Payne.  It was an extract involving Mr. Kordic, and Major

 5    Kent Payne wasn't a witness, and his comments certainly weren't

 6    admissible.  What we have here are extracts, selected extracts from books.

 7            JUDGE MAY:  Give us an idea of what they are.

 8            MR. NICE:  I can't see their relevance.  They are out of context

 9    or they may be out of context.  Sorry, I've opened the wrong file.  Here

10    we are.  One, for example, is a book "General Alagic's War Memoirs."

11    Another is a book by a somebody called Begic, "From Vance's Mission to the

12    Dayton Agreement."  It sounds as though it might be nearer to being some

13    other kind of expertise or journalist report.  I don't know what.

14            Then there is another one, called the Sanu Memorandum, which is a

15    book about Serbs, as far as I can see, but I might be wrong about that.

16    The whole basis of relevance of these documents is entirely unclear and

17    they are simply extracts from books.  That's it, really.

18            MR. SAYERS:  I don't know, in all candor, that I have got too much

19    to say about that, Your Honour.  They are not central matters, admittedly,

20    but they are -- these books certainly cover background matters that might

21    be thought by the Trial Chamber to be helpful, and the extracts can be

22    taken for what they are worth or discarded in their entirety.  But we

23    think they will be fairly helpful.  They all relate to background matters

24    and there is not a single extract that contains any reference, as far as

25    I'm aware, to any contentious matter.  If I am wrong about that, I'm sure

Page 26659

 1    I will be quickly corrected.  But with respect to the book entry that the

 2    Prosecution talked about, obviously that was excluded for an entirely

 3    different reason, as it's clear from the recitation that you've been given

 4    by the Prosecution.

 5            So we think they are background matters that may be helpful and

 6    there's nothing in the least that is controversial.

 7                          [Trial Chamber confers]

 8            JUDGE MAY:  We have more than enough material in this case without

 9    books of doubtful relevance.  Yes.

10            MR. NICE:  I repeat my thanks to Ms. Kind and, I'm sorry, the

11    legal officer for the Kordic Defence, I'm sorry, I've forgotten her last

12    name.

13            That leaves the questions of cross-examination or examination of

14    the two witnesses called by the Chamber.  We've presented, I think, our

15    opposing views substantially already and I would have, I think, one more

16    point, if I may do so.

17            In the Blaskic case, witnesses were called by the Chamber without

18    their having been initially identified as witnesses for one side or the

19    other.  Although I don't know the full details, I think they came to Court

20    to some degree isolated from one party or the other.  They gave evidence

21    in accordance with questions, I think, asked by the Chamber.  So that then

22    constituted the evidence in chief and there was then cross-examination, I

23    think first by the Prosecution and then by the Defence.

24            That position is to be contrasted with the position here.  That's

25    to be contrasted with the position here where these witnesses were

Page 26660

 1    originally identified by, and therefore no doubt were in contact with and

 2    in correspondence of one kind or another with the Defence, who will

 3    therefore know what they were expected or intended to say.

 4            That, for reasons I have already advanced, would suggest that the

 5    Defence should go first.  They know what they want to produce.  They have

 6    the advantage of dealing with it in cross-examination rather than being

 7    restricted by the rules of examination-in-chief, and they may also, of

 8    course, have the continuing advantage of being able to contact and speak

 9    to these witnesses for I am not aware that any bar has been placed on

10    their doing so.  So the logical course, in our respectful submission,

11    would be for them to go first in this case and for us to come second.

12            Before I sit down, by oversight and overlooking manners, I should

13    have said twice that we are equally grateful to Carline Ameerali, who sits

14    before you, for her assistance in dealing with exhibits.  She gave us her

15    time and effort very generously.

16            MR. NAUMOVSKI: [Interpretation] Thank you, Your Honours.  I shall

17    be very brief.  My view is quite the opposite.  I believe that it is the

18    Prosecutor who should cross-examine first.  Regardless of who intended to

19    call these witnesses or not, they will be called by the Court and they are

20    so-called Court witnesses.

21            The Trial Chamber also decided on how their examination-in-chief

22    will take place.  These will actually be their transcripts from the

23    Blaskic case, their earlier testimonies.  So the Court has already ruled

24    about this, that is to say, on the examination-in-chief, so it seems to me

25    quite natural, like in all other systems where the Court calls the

Page 26661

 1    witnesses, that the Prosecutor should examine those witnesses first.  I

 2    think that it is a natural right enjoyed by the Defence in these systems

 3    that I am referring to after the Prosecutor.

 4            For example, in the system I come from, it is the Court that calls

 5    the witnesses and then the witnesses are examined by the Prosecutor and

 6    then by the Defence.  I don't want to take up too much time.  I think that

 7    it is the natural right of the Defence to examine the so-called Court

 8    witnesses after they are examined by the opposing party, in this

 9    particular case, the Prosecution.  Of course, in this way, automatically

10    we shall save time, most probably, because if the Prosecutor covers most

11    of the ground that we wish to cover, then perhaps we won't even have an

12    additional number of questions.  If we cover the same subjects, then

13    perhaps we won't even put certain questions, and we will save a lot of

14    time that way.  Thank you.

15            JUDGE MAY:  Mr. Kovacic.

16            MR. KOVACIC:  I agree with the Kordic Defence and I have nothing

17    to add on that.

18                          [Trial Chamber deliberates]

19            JUDGE MAY:  We can see no good reason from departing from what we

20    take to be the usual procedure in relation to Court witnesses, and the

21    proper procedure, which is the examination-in-chief having been concluded,

22    which it would be by the introduction of the transcripts, that it is for

23    the Prosecution to go first, and then the Defence to have the advantage of

24    going second.  That is the system in a great many countries, it seems to

25    me the fairest system, and one we shall adopt here.

Page 26662

 1            MR. NICE:  As the Court pleases.  And, of course, the evidence

 2    which stands as evidence-in-chief was evidence which came from a different

 3    case and with a different focus, and I would respectfully suggest that the

 4    Prosecution's right of cross-examination can't be narrowly curtailed by

 5    reference to that area of evidence.

 6                          [Trial Chamber deliberates]

 7            JUDGE MAY:  We agree with that, but there shouldn't be too far

 8    wide-ranging a remit.

 9            MR. NICE:  No, of course not.  Your Honour, if that's all that the

10    Court had on its list of things to be done --

11            JUDGE MAY:  There were just two matters I wanted to touch on, if

12    it's convenient.  One is that the Defence are to tell us about ECMM

13    documents, if they're in a position to do so.

14            MR. SAYERS:  The ECMM has produced, by way of CD-ROM, documents

15    that are pursuant to the Court's order.  I've been through them.  The

16    production is deficient in several regards and we're looking at the

17    situation to see if further action is necessary.  But with respect to the

18    approximately one foot of documents, there are a large number of documents

19    that would have been extremely useful, we think, for the Trial Chamber

20    during the cross-examination of various witnesses, and we propose, with

21    the Court's leave, by this Thursday, if I may, to present to the registrar

22    an additional package of separately-indexed exhibits from those

23    documents.  And we will also be submitting at the same time, I hope, if we

24    can get it done, the package of additional documents produced recently by

25    the headquarters of UNPROFOR Kiseljak, if that's acceptable to the Court.

Page 26663

 1            JUDGE MAY:  That too next week?

 2            MR. SAYERS:  I think, Your Honour, I can have those ready by

 3    Friday before I leave.  Thank you.

 4            JUDGE MAY:  Thank you.  And perhaps the Prosecution would react to

 5    those documents when they get them.

 6            MR. NICE:  Indeed.

 7            JUDGE MAY:  The only other matter is the Zagreb documents.  I know

 8    you've got to the 30th of October.  I was wondering what the prospects

 9    were of advancing that, at least as far as possible.

10            MR. NICE:  Well, first of all, we are advancing it as far as

11    possible on a production-of-material-to-the-Defence basis, and we always

12    have been.  We will certainly need until that date to conclude our

13    researches and the production of statements and so on, and we've

14    timetabled ourselves to that date.  We are doing our best to get material

15    as rapidly as possible and we'll serve everything we get as soon as we

16    can.

17            There is an outstanding issue on an ex parte basis, and I know the

18    Chamber is not going to be constituted or capable of being constituted

19    after today, and that, of course -- well, I need say no more, but the

20    Chamber will realise the extreme urgency that we perceive attaches to that

21    issue.

22            JUDGE MAY:  Yes, Mr. Kovacic.

23            MR. KOVACIC: [Interpretation] Perhaps we move into ex parte.  I

24    just have two short technical issues.  Just a minute, please.

25            JUDGE MAY:  Before the ex parte.

Page 26664

 1            MR. KOVACIC:  Before ex parte.

 2            JUDGE MAY:  Yes.  Yes, Mr. Kovacic.

 3            MR. KOVACIC: [Interpretation] A few days ago, the Trial Chamber

 4    refused to admit document Z692.2, and the original did not have to be

 5    produced by the Prosecutor.  This is a document which allegedly has a note

 6    on the back of the document.  I asked the Prosecutor for the original, to

 7    see the original, but again I got a copy, that is to say, a copy once

 8    again of the front page and the back.  We don't think that this document

 9    is authentic, like many others aren't, but I'm not going to go into that

10    today.  I would simply like us to take care of things.  It is so difficult

11    to handle all these auxiliary matters and documents.  Could the Prosecutor

12    please say whether they have this or not, and let's finally take care of

13    this rather than leave it outstanding all the time.

14            May I move on now to this other matter I wish to refer to?  On the

15    12th of October, in relation to the formal statement made by Colonel

16    Morsink, the Trial Chamber gave this Defence the right, the option, to put

17    it that way, to seek the right to cross-examine within five days if we

18    deemed this necessary.  I would like to avail myself of that option now,

19    so could we please have Colonel Morsink brought for cross-examination?

20            JUDGE MAY:  Yes.  Can that be done, Mr. Nice?

21            MR. NICE:  So far as I know, it can.  He was already timetabled

22    for a particular day by the Chamber.  We'll confirm his availability on

23    that day.

24            As to Exhibit 692.2, I'm grateful to Mr. Kovacic for reminding me

25    of something I had, I think, temporarily forgotten.  As I explained to

Page 26665

 1    him, the document we have is indeed a copy.  It's a document copied on

 2    both sides, that is to say, reflecting an original that is written on or

 3    typed on on both sides.  Like all the documents we have at the moment, it

 4    is a copy.  I would investigate further and see what, if anything else, I

 5    can do about it.

 6            JUDGE MAY:  Thank you.

 7            MR. NICE:  There is one other matter I can report on happily.  The

 8    Defence in Kordic wanted access to closed session material in relation to

 9    a particular witness, whom we needn't identify any further, in the

10    Kupreskic case.  We undertook, at apparently short notice, an exercise in

11    relation to all that material, and we've completed the exercise.  We've

12    identified, on the most generous basis, all the material that could

13    conceivably fall within Rule 68, and --

14                          [Prosecution counsel confer]

15            MR. NICE:  Yes.  We are in a position to make the material

16    available, insofar as it's open to us to do so, I think this afternoon, on

17    the one hand, certainly, by filing the necessary application to the

18    Chamber, which of course the Chamber then has to deal with in relation to

19    closed session hearings, and in provision of statements that may

20    conceivably be Rule 68 otherwise.  So that's effectively done, but it does

21    require, I'm afraid, further consideration by the Chamber.  And I'm loath

22    to have to mention that, but that's the reality.

23                          [Trial Chamber confers]

24                          [Trial Chamber confers with legal officer]

25            JUDGE MAY:  Yes, Mr. Sayers.

Page 26666

 1            MR. SAYERS:  Two short matters in open session and then one short

 2    matter in private session, Mr. President, if I may.  Could we request

 3    copies of any witness statements for Witness numbers 21 and 22?  We don't

 4    have those yet, and they should be provided pursuant to Rule 66(A)(ii).

 5            Second, some time ago we requested a copy of a transcript of an

 6    April 13th, 1999 session, apparently in the office of the presidency of

 7    the Republic of Croatia, relating to the witness who is scheduled to give

 8    testimony on November 13th, and I wonder if we could be provided with that

 9    before the end of the week, if possible.

10            And if I could just go into private session for two minutes.

11                          [Private session]

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 26667













13    Page 26667 redacted – in private session.













Page 26668

 1    [redacted]

 2    [redacted]

 3    [redacted]

 4    [redacted]

 5    [redacted]

 6    [redacted]

 7    [redacted]

 8    [redacted]

 9    [redacted]

10                          --- Whereupon the hearing adjourned at 1.42 p.m., to

11                          be reconvened on Monday, the 13th day of November

12                          2000, at 9.30 a.m.