Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4177

1 Tuesday, 30 May 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.08 a.m.

5 JUDGE MUMBA: The registrar, please call the

6 case.

7 THE REGISTRAR: [Interpretation] Case

8 IT-96-23-T, IT-96-23/1-T, the Prosecutor versus

9 Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

10 JUDGE MUMBA: Thank you.

11 Yes, the Prosecution.

12 MR. RYNEVELD: Yes, Your Honour. I might say

13 that the Prosecution, of course, heard what the Trial

14 Chamber indicated to us at the close of proceedings

15 yesterday and we've had the opportunity to reflect upon

16 it, and accordingly we have decided, out of an

17 abundance of caution, to cancel the witness we had

18 proposed to call today, Dr. Cleirin, in light of the

19 comments of the Court yesterday. So we have cancelled

20 her for today.

21 We do, however, think that there are some

22 aspects of the report that may be of assistance to the

23 Court and may well be the subject of productive

24 discussions with our learned colleagues from the

25 Defence. Perhaps there may be some areas where we can

Page 4178

1 come to some agreement with respect to whether or not

2 there were aspects of the report that have a probative

3 value capable of weight by this Court, and that may be

4 of assistance to you. It may be that we would propose

5 that we utilise the time over the pending break and

6 that we might deal with those issues after 105 has

7 testified, when I understand that the matter next

8 proceeds on the 13th of June, I believe it is, of this

9 year.

10 That is basically our position, and I suppose

11 I should ask the Court -- I have acted pre-emptively in

12 cancelling Dr. Cleirin, in light of our decision -- but

13 I would have the Court's concurrence that we have, in

14 fact, done so appropriately in light of our decision

15 not to call her at this time.

16 JUDGE HUNT: Mr. Ryneveld, may I suggest this

17 in relation to the discussions you're going to have

18 with the Defence counsel.

19 MR. RYNEVELD: Yes, please, Your Honour.

20 JUDGE HUNT: Article 5 does not require you

21 to prove that the rapes were widespread; it only

22 requires you to prove that the armed conflict against

23 the civilian population was widespread. The evidence

24 that you or Ms. Kuo suggested was going to be available

25 from this witness' evidence seemed to be an attempt to

Page 4179

1 establish that the rapes were widespread.

2 MR. RYNEVELD: Well, Your Honour, quite

3 clearly our position throughout has been that we're

4 quite aware that it's the attack on the civilian

5 population, under Article 5, that is at issue --

6 JUDGE HUNT: And the attack that you've been

7 seeking to prove here, as I understand it, is the

8 detention of the women and the mistreatment of the

9 men.

10 MR. RYNEVELD: Absolutely. Rape is only one

11 of the constituent ingredients in the widespread or

12 systematic attack. We have both options, widespread or

13 systematic. But even if we were to talk about

14 widespread, it is not just the rape; it is the

15 gathering of the individuals, the detention of them in

16 various camps, the mistreatment of them at the various

17 camps, of which, when it comes to the women, includes,

18 but not exclusively, the rape, the systematic means by

19 which these rapes allegedly are carried out. That is

20 part of the submission that -- of course this report

21 talks about all kinds of aspects that we think are of

22 probative value to the Court and which do not focus

23 exclusively on the issue of whether or not various

24 women were raped by individuals other than these three

25 accused in other parts of Bosnia-Herzegovina.

Page 4180

1 JUDGE HUNT: But then if I may just emphasise

2 what I think I said to Ms. Kuo yesterday: We do have

3 to be satisfied beyond reasonable doubt that the

4 attacks were widespread.


6 JUDGE HUNT: Now, that doesn't mean we have

7 to be satisfied beyond reasonable doubt in relation to

8 each item of evidence that you tender in order to

9 establish that fact. It's the ultimate fact that the

10 armed conflict was directed against the civilian

11 population that has to be proved beyond reasonable

12 doubt. But I myself fear that an assertion as you get

13 to the periphery of the area that you needn't have as

14 much proof, that does not appeal to me, if I can put it

15 that way.

16 MR. RYNEVELD: I understand completely Your

17 Honour's comments. However, perhaps we may be able to

18 more precisely identify the extent to which we think

19 that other aspects of this report may be of assistance

20 to the Court in the issue of the either widespread or

21 systematic attack on the civilian population.

22 It seemed that yesterday's discussion was

23 focused primarily on the issue of proving rapes, and

24 that may be just the way in which it came up. I'm not

25 sure whether we adequately addressed the multipurpose

Page 4181

1 aspect of this report in that its reliability and

2 probative value lay in the broader, wide spectrum of

3 the attack by Serbian perpetrators on a Muslim civilian

4 population, which is part of the bigger Article 5 issue

5 that we have to prove; the specific rapes in this case

6 being only one of the aspects by which this widespread

7 or systematic attack on the civilian population can be

8 achieved.

9 Now, the other thing that needs to be said is

10 that we were not attempting to use this report to prove

11 that any one of these three accused did anything

12 against the victims that have testified. That is

13 self-contained within the evidence that has already

14 been given, that's been cross-examined upon, and that

15 this Court will have to make findings of credibility,

16 reliability, probative value, and ultimately whether or

17 not the Crown has established their case beyond

18 reasonable doubt with respect to that aspect of the

19 case.

20 But this report, perhaps the Presiding Judge

21 yesterday was closest to it by indicating that its

22 previous purpose was to put in the historical context,

23 and it may be that that is how it's gone in before. In

24 any event, we feel that the report has a wider

25 application than merely its historical context, but it

Page 4182

1 should at least go in for that purpose. I don't want

2 to say that that's the limited purpose for which it

3 should go in but we would like an opportunity to

4 discuss that with our friends during the break. Of

5 course, since last night and this morning there hasn't

6 been sufficient time to identify all those areas which

7 we say are reliable and are probative.

8 I've just outlined to you, as briefly as I

9 can, what we may be able to accomplish during the break

10 which is scheduled in any event.

11 JUDGE MUMBA: Yes. Thank you very much.

12 Because what all of us have to bear in mind is that the

13 trial before this Trial Chamber is on the charges, the

14 specific counts, so our concern is to establish that,

15 and the concern from the Defence is to disprove that.

16 MR. RYNEVELD: Absolutely. I just want to

17 make sure that my friends didn't somehow think that we

18 were trying to put this report in to prove that their

19 three accused -- that this is a document which proves

20 that their three accused were guilty of the crimes with

21 which they are charged, other than as it relates to the

22 widespread and systematic pattern. That's its only

23 purpose.

24 JUDGE MUMBA: Thank you. So the Prosecution

25 case will continue on Tuesday, the 13th, with one of

Page 4183

1 their witnesses, and maybe another or with documentary

2 evidence.

3 MR. RYNEVELD: That is our hope, yes. Thank

4 you, Your Honour.

5 JUDGE MUMBA: Yes, Mr. Jovanovic.

6 MR. JOVANOVIC: [Interpretation] Your Honour,

7 perhaps this is not the right time but yesterday I was

8 a bit late. At the very end of the hearing yesterday I

9 wanted to address the Trial Chamber but I was too

10 late. It relates to the incident that occurred on the

11 24th of May this year, when the expert witness,

12 Mr. Nogo, was being questioned. With the permission of

13 the Trial Chamber and thanks to the instructions of His

14 Honour Judge Hunt, I discussed this with my client, and

15 I wish to inform you of the following:

16 Immediately after the hearing I talked with

17 my client. After that I had yet another meeting with

18 him on Friday when I called on him in prison. When I

19 talked to him immediately after the hearing, I also

20 talked to the secretary of the Chamber, Diane. I also

21 wish to say that when I talked to my client, I realised

22 that his reaction was quite spontaneous because my

23 client has some information related to Mr. Nogo and the

24 unit that he commanded.

25 We are truly sorry if this looked in a

Page 4184

1 different way and if Mr. Nogo had the impression that

2 he was being threatened. There was no desire to do

3 this; there was no intention to do this. I also wish

4 to express my regret over the fact that such an

5 incident occurred.

6 Please accept our assurances that in the

7 future such situations will not repeat themselves.

8 JUDGE MUMBA: Thank you, Mr. Jovanovic,

9 because the Trial Chamber takes it that the Defence

10 counsel has a duty to make sure that his or her client,

11 or their clients, behave themselves during

12 proceedings. Mind you, everything that goes on here is

13 on camera and it's very easy to play the tapes and see

14 how everybody is behaving. Also the Judges do get

15 concerned about the conduct of the accused persons

16 whilst in court because it's very easy to commit

17 contempt; it's very easy to give away your guilt or

18 innocence by your own conduct.

19 Thank you. That is the close of the matter.

20 --- Whereupon the hearing adjourned at

21 10.19 a.m., to be reconvened on Tuesday,

22 the 13th day of June, 2000, at 9.30 a.m.