1. 1 Tuesday, 12 May 1998

    2 (In open session)

    3 (The accused entered court)

    4 --- Upon commencing at 10.04 a.m.

    5 JUDGE MAY: Would the Registrar call the

    6 list, please?

    7 THE REGISTRAR: Good morning, Your Honour.

    8 Case number IT-97-24-PT, Prosecutor versus Milan

    9 Kovacevic.

    10 JUDGE MAY: The appearances?

    11 MS. HOLLIS: Good morning, Your Honours.

    12 Brenda Hollis along with Michael Keegan and Ann

    13 Sutherland appearing on behalf of the Prosecutor.

    14 MR. VUCICEVIC: Good morning, Your Honours.

    15 Dusan Vucicevic and Anthony D'Amato on behalf of the

    16 defendant.

    17 JUDGE MAY: Can the accused hear? Can you

    18 hear, Dr. Kovacevic? Very well.

    19 The first matter to deal with is this, that I

    20 said that we would make a ruling this morning on the

    21 first Prosecution motion in relation to the protection

    22 of witnesses and also the various requests by the

    23 Defence for relief which was set out in their reply.

    24 Dealing, first of all, with the Prosecution

    25 motion, having in mind our obligation to provide for

  2. 1 the protection of witnesses, we shall grant that motion

    2 and make the usual order.

    3 In relation to the relief sought in the

    4 Defence reply, we shall refuse that application for

    5 relief.

    6 In the case of Delalic which I mentioned

    7 yesterday, which was a decision of Trial Chamber 2 on

    8 the 18th of March last year, it was held that the

    9 Defence does not have any right to obtain information

    10 concerning Prosecution witnesses for the purpose of

    11 conducting pre-trial interviews.

    12 This Chamber endorses that decision. There

    13 is no right to conduct such interviews. No such right

    14 is reflected in Article 21 of the Statute or in Article

    15 14 of the International Covenant on Civil and Political

    16 Rights and, as such, the conduct of interviews in these

    17 circumstances does not form part of the practice of the

    18 International Tribunal even when it is acceded to by

    19 the Prosecution.

    20 I would add this, that the Trial Chamber also

    21 considers that there is a danger that such pre-trial

    22 interviews may add further to the distress of victims

    23 and witnesses.

    24 For those reasons, this relief is denied.

    25 One further matter before we continue with

  3. 1 the hearing of the motions, and it is this: It

    2 concerns the last motion that we were dealing with

    3 concerning the pre-trial admission of documents.

    4 Ms. Hollis, it occurs to us that Friday

    5 afternoon this week will be available for the

    6 resolution of any disputes that there may be about that

    7 matter arising from any conference between the parties

    8 later this week. It has this advantage, that fixing

    9 other times during the court calendar in the next few

    10 weeks may be difficult, whereas that time is

    11 available.

    12 So what I'm going to ask the parties to do is

    13 to discuss these issues in the next couple of days and,

    14 if necessary, if required, we will list a hearing for

    15 2.00 p.m. on Friday.

    16 Will that be of assistance, do you think,

    17 Ms. Hollis?

    18 MS. HOLLIS: Yes, Your Honour. We have

    19 already agreed with the Defence to meet with them

    20 Thursday to discuss the documents, so that a Friday

    21 hearing, if necessary, then would be appropriate.

    22 JUDGE MAY: So if you would undertake to

    23 notify us and notify the authorities after your

    24 conference, as to whether a hearing is going to be

    25 needed, we will be available to conduct it.

  4. 1 MS. HOLLIS: Yes, Your Honour.

    2 JUDGE MAY: Yes, Mr. Vucicevic?

    3 MR. VUCICEVIC: Your Honour, thank you for

    4 your consideration of this matter. However, with the

    5 best intentions, it will not be possible for us to

    6 accomplish it because after, as you may recall, there

    7 was quite a bit of a misunderstanding on my part what

    8 was turned over to us or not, and we had made agreement

    9 to have a conference on Thursday, but then we all

    10 learned that the documents that Mr. Keegan was talking

    11 about were turned over to the Registry and the Trial

    12 Chamber, and we really didn't receive them. So I was

    13 handed a box of 1,200 pages yesterday, and I started

    14 reviewing some of them yesterday. It will not be

    15 possible, physically possible, to go through all of

    16 them, and we will have to postpone this, Your Honour.

    17 JUDGE MAY: Do what you can, Mr. Vucicevic.

    18 No doubt at least you will be able to take a view about

    19 some of the documents. If you can take a view and you

    20 can discuss the matters in conference, we will have the

    21 hearing on Friday, but if it's not possible, then it

    22 will have to be postponed. So to some extent, we are

    23 in your hands. If you think that a meeting would be

    24 profitable, a hearing would be profitable on some of

    25 the documents, we will hold it. Otherwise, we won't.

  5. 1 But after you have had the conference, perhaps you can

    2 consider the matter with the Prosecution and decide

    3 whether a hearing would be profitable or not. If not,

    4 we will have to have a hearing at a later date.

    5 MR. VUCICEVIC: Your Honour, I am mindful of

    6 your suggestion and, you know, giving us, you know,

    7 this opportunity. But looking at the amount of the

    8 material that is there and taking into consideration

    9 that I only got the chance to review half of the

    10 witness statements that were sent to me, of 25 witness

    11 statements there were given before, some material also

    12 included with that material, so that we are talking

    13 maybe close to 2,000 pages. Combined with that, my

    14 back is not doing fine, you know, because I kind of,

    15 you know, my back started acting up on me when I flew

    16 over here from Chicago, so I'm not sure how much

    17 physically I will be able to accomplish to Thursday,

    18 and that's why -- because I will be put into the

    19 position where it will not be that I will have to rush

    20 through those documents, that I will not be able to

    21 connect them with the other witness statements. I

    22 don't think I will do justice to my case, Your Honour,

    23 by this approach. I really need the time to digest

    24 those documents.

    25 JUDGE MAY: Very well. If you think that we

  6. 1 can make any progress on Friday, we will hold the

    2 hearing, but it sounds very much as though we won't be

    3 able to, in which case it will have to be held at a

    4 later date.

    5 MR. VUCICEVIC: Yes, please.

    6 JUDGE MAY: But I would add this, that we

    7 will have a hearing on Friday only for the purpose of

    8 discussing that particular motion. We do not want to

    9 have a hearing in order to re-litigate matters which

    10 have been decided today and yesterday.

    11 MR. VUCICEVIC: I am absolutely mindful of

    12 your decision and will follow. Thank you.

    13 JUDGE MAY: Mr. D'Amato, I think that the

    14 last matter we have to deal with in open session

    15 concerns matters which you raised in your reply to the

    16 indictment which contained a request for relief.

    17 If you would like to address us on these

    18 particular matters?

    19 MR. D'AMATO: Thank you, Your Honour. Should

    20 I take the four of them in order?

    21 JUDGE MAY: Whichever order suits you.

    22 MR. D'AMATO: All right. We have four

    23 requests for relief in light of the Prosecution's

    24 brief, and I know that the Prosecution will want to

    25 reply to this, so let me make my case without repeating

  7. 1 the arguments in the brief but just as a summary.

    2 First of all, in the indictment, it is said

    3 that Dr. Kovacevic is accused of genocide, yet Article

    4 4 of the Statute talks about "genocide or other acts,"

    5 and the indictment appears to be talking only about

    6 this "or other acts" and not about genocide at all.

    7 Under the principle, I think, which is common

    8 to every legal system in the world, indictments must be

    9 strictly and severely construed against the

    10 Prosecutor. If a person is being charged with a crime

    11 of genocide but there is nothing in the indictment that

    12 suggests that he was guilty of genocide, then it seems

    13 that the indictment is basically flawed and should be

    14 dismissed in its entirety.

    15 Second, the caption "Superior Authority"

    16 immediately following paragraph 2 of the indictment

    17 does not correspond to any legal principle that I'm

    18 aware of. It's a shorthand form. But as it stands, it

    19 seems to me that it has no place in an indictment and

    20 should be struck.

    21 Number 3, the conclusion at the end of the

    22 indictment -- let me get it -- says: "By these acts

    23 and omissions, SIMO DRLJACA and MILAN KOVACEVIC were

    24 complicit in the commission of GENOCIDE, punishable

    25 under Articles 4(3)(e) and 7(1) ... of the Statute of

  8. 1 the Tribunal" raises in conclusory form something that

    2 should have been set out in the operative paragraphs,

    3 and there is nothing in the operative paragraph that

    4 says anything about complicity; and therefore, under

    5 the general argument that it should be severely

    6 construed against the Prosecutor, that part of it

    7 should be struck.

    8 And secondly, Articles 7(1) and 7(3) of the

    9 Statute are being raised here for the first time in a

    10 conclusory sentence without any supporting authority,

    11 without any reference to what it might be in the

    12 indictment that corresponds to Articles 7(1) and 7(3).

    13 And, to boot the entire Prosecution's pre-trial brief

    14 never mentions Article 7(1) and 7(3). If it's an

    15 afterthought, an afterthought should not be the sort of

    16 thing that should send a person to prison for the rest

    17 of his life, and again, this ought to be struck as

    18 well.

    19 Finally, number 4, the last conference that

    20 we had, Your Honours, there was a suggestion that many

    21 of these pre-trial motions ought to be done in the

    22 spirit of narrowing the issues so the trial can proceed

    23 economically. The Prosecution's gloss, however, on the

    24 notion of genocide broadens it to the point where it

    25 can include everything. Apparently, under the

  9. 1 Prosecution's brief -- and I went into this in great

    2 detail so I'm only summarising right now -- but under

    3 the Prosecution's brief, deportation is an act of

    4 genocide, persecution is an act of genocide. Well, if

    5 you can allow that to happen as an expansion of the

    6 concept, what we're going to see at the trial are all

    7 kinds of testimony about deportation and persecution

    8 and many other things that are really not at all

    9 relevant, they're not acts of genocide, they're not

    10 acts under Article 4 of the Statute, they have never

    11 been considered to be acts of genocide except in some

    12 dicta that the Prosecution cites, and of course I went

    13 into that in the brief and said that that dicta doesn't

    14 have any legal compulsion.

    15 So under the principle that the pre-trial

    16 brief should be focusing and narrowing the issues, it's

    17 my contention that the Prosecution, for its own

    18 reasons, deliberately broadened the concept so that the

    19 trial can just about include everything, and it would

    20 seem to me that rather than having to argue this issue

    21 every time a witness comes up, we get into the exact

    22 same argument that we are going through today, namely,

    23 that this witness's testimony might be relevant to

    24 persecution or it might be relevant to deportation but

    25 it's not relevant to genocide and the Prosecution comes

  10. 1 back and they cite the Eichmann case and then we go

    2 into that, we would have to do that 100 times. I think

    3 in terms of efficiency, we should adopt pre-trial the

    4 definition of genocide that is common that everybody

    5 accepts and that is not full of this gloss that expands

    6 it to the point where everything is allowed in. And my

    7 suggestion to the Court is to simply take the 140 words

    8 of Article 4 and say that is the accepted definition of

    9 genocide. Of course, that includes the meaning of

    10 those words, how they -- the Traveaux preparatoirs --

    11 all the things that had to do with how those words came

    12 to be, that's fine, but not to add on top of it a

    13 disposition and a treatise on genocide broadly defined

    14 as the Prosecution did because I think that will make

    15 the trial almost impossible to conduct, it will be

    16 nothing but a bunch of repetitious legal arguments

    17 every step of the way.

    18 So my suggestion on this fourth is to confine

    19 the operative legal principle of the trial to the exact

    20 words of the Statute to which, of course, we have no

    21 dispute whatsoever.

    22 Your Honours, I could say a little bit more,

    23 but I would like to reserve one or two minutes in the

    24 event the Prosecution -- in the event of a possible

    25 rebuttal. Would that be possible? Thank you.

  11. 1 MS. HOLLIS: Thank you, Your Honour. In

    2 looking at the Defence response to the pre-trial brief,

    3 we would suggest, first of all, that the Defence

    4 response goes well beyond a response to the pre-trial

    5 brief, and, in effect, what it does is, in the body of

    6 what is purported to be a response, raises two

    7 different motions, hence leading to a conclusion in

    8 their supposed response that actually includes requests

    9 for relief. We do not typically look at a response to

    10 a pre-trial brief to include requests for relief.

    11 So indeed, once again, we have embodied in a

    12 response what we consider to be really two independent

    13 motions for relief. Perhaps in the future as a term of

    14 practice it would be better to set out motions

    15 independently. Nevertheless, we suggest that's what we

    16 have here. Within the response, we have two motions

    17 for relief. The first motion is to strike portions of

    18 the indictment, and in that regard, the Defence talks

    19 about superior authority and then talks about the

    20 language following paragraph 16.

    21 If we look a bit at the history of this case,

    22 it will lead us to the conclusion that this motion to

    23 strike portions of the indictment should not be allowed

    24 for a variety of reasons. This motion, a motion to

    25 strike portions of the indictment, was first raised in

  12. 1 a written pleading by the Defence in September of 1997,

    2 and the Prosecution filed a written response on 24

    3 September of 1997. The Trial Chamber to which this

    4 case was assigned at that time is not the current Trial

    5 Chamber, and that Trial Chamber did not hear and

    6 dispose of this motion.

    7 However, during a motions hearing before this

    8 Trial Chamber in February of this year, the Defence, in

    9 fact, withdrew or dropped this motion to strike

    10 portions of the indictment. They dropped it. Now

    11 they're trying to resurrect it. They should not be

    12 allowed such a fragmented approach to this motion.

    13 JUDGE MAY: Can you just help us? You're

    14 quite right about that because I remember the

    15 occasion. What was the nature of that motion? I think

    16 the -- the point of superior authority was made.

    17 MS. HOLLIS: It included superior authority,

    18 it included a concern about what was in the background

    19 material, and I believe at that time in the motion that

    20 was filed in September, they also asked that references

    21 to Simo Drljaca be stricken. The Prosecution in its

    22 reply to that indicated we would do so and, in fact, as

    23 a housekeeping matter we have complied with that and we

    24 do now have an indictment from which the references to

    25 Simo Drljaca have been stricken and we will provide

  13. 1 that to the Trial Chamber and the Defence for their

    2 review.

    3 So that was what was included in their motion

    4 to strike. If there were other concerns they had with

    5 the indictment, they should have included them in that

    6 motion to strike. Nonetheless, in February, they, in

    7 fact, withdrew that motion. They said they wanted to

    8 drop the matter. And now they're resurrecting it

    9 again. On that basis alone we would suggest you should

    10 deny this motion and this fragmented approach to

    11 motions practice.

    12 That point aside, if we look at what they are

    13 now asking, we look at, first of all, their complaint

    14 about the caption "Superior Authority," and we suggest

    15 that their complaint concerning that caption has no

    16 basis in the Statute of this tribunal. First of all,

    17 Article 7(3) speaks in terms of a superior, a superior

    18 and a subordinate, and if we want to clarify what is

    19 meant by 7(3) we simply have to look at paragraph 56 of

    20 the Secretary-General's report concerning the creation

    21 of this Tribunal, and in paragraph 56, which is

    22 certainly available to the Defence, the

    23 Secretary-General speaks in terms of "Superior

    24 Authority." Therefore, we would suggest this is not

    25 surplusage, it is a way to focus in on the paragraphs

  14. 1 that follow "Superior Authority", and we're talking in

    2 terms of 7(3), which is one of the bases on which an

    3 accused may be held individually criminally liable for

    4 acts or omissions.

    5 If we look at paragraph 13 of the Defence

    6 response wherein they ask the Trial Chamber to strike

    7 the language that follows paragraph 16 of our

    8 indictment, first, as stated before, they shouldn't be

    9 allowed to have such a fragmented approach to a motion

    10 but, in fact, this Trial Chamber should consider this

    11 matter to be waived by their February withdrawal of the

    12 motion.

    13 Beyond that, the requested relief is

    14 certainly not warranted. The language following

    15 paragraph 16 sets forth the charge in the case,

    16 complicity and genocide, 4(3)(e) under the Statute.

    17 Secondly it sets forth the basis for individual

    18 criminal liability. In this case, the Prosecution is

    19 alleging this accused is individually criminally liable

    20 pursuant both to Article 7(1) and Article 7(3). In

    21 addition, when we look at the language that the acts

    22 and omissions form the basis for this liability, both

    23 individual criminal liability and genocide under the

    24 Statute, the acts and omissions referred to are the

    25 paragraphs which precede this language. They are the

  15. 1 enumerated paragraphs above.

    2 This is not surplusage, this does not

    3 introduce new elements into any offence of genocide,

    4 it, in fact, sets out the particular act under

    5 subparagraph 3 of Article 4 which we are charging, and

    6 it sets out the individual criminal liability bases

    7 upon which we are proceeding.

    8 The Defence argues that these -- this motion

    9 to strike is really a response to our pre-trial brief,

    10 but, in effect, what it is, is a motion pertaining to

    11 the indictment and the form of the indictment, so it is

    12 not really responsive to the Court's order that they

    13 respond to a pre-trial brief.

    14 One motion --

    15 JUDGE MAY: Ms. Hollis, may I say, you're

    16 clearly right about that. If we were going to be

    17 technical about it, we could simply refuse to accept

    18 the motion or the relief application and order them to

    19 file a separate motion, and our hearing it today is

    20 merely a matter of convenience and, of course, mustn't

    21 be taken as condoning any departure from the normal

    22 practice which should be followed.

    23 MS. HOLLIS: Yes, Your Honour. And we

    24 certainly do appreciate the convenience that is given

    25 by addressing this -- how it has been raised, and

  16. 1 that's what we are attempting to do. In that regard,

    2 Your Honour, we would point out that because we

    3 received this very recently -- I believe it was Friday

    4 of last week -- we have not had the ability to date to

    5 file a written reply to this. Certainly because these

    6 motions are very serious motions, we would request the

    7 right to file a more complete response if the Trial

    8 Chamber believes that would be warranted.

    9 But moving on, Your Honour, to the second

    10 motion that they attempt to raise in their response.

    11 This appears to be a motion alleging defects in the

    12 form of the indictment, and in reviewing this again,

    13 perhaps, first of all, if we may, in a more technical

    14 sense in terms of pleadings and timing of pleadings, we

    15 would point out the following: That this accused had

    16 his initial appearance on the 30th of July of 1997.

    17 The Rules that were then in effect gave the accused 60

    18 days from his initial appearance to file a motion such

    19 as this, a motion relating to defects in the form of

    20 the indictment. His time to have filed such a motion

    21 would have ended on the 1st of October. The Rule, our

    22 present Rule, is a different Rule. That Rule was not

    23 changed until the 20th of October and the 12th of

    24 November amendments were added to the Rules for the

    25 Tribunal. We suggest that under this reading, looking

  17. 1 at the Rule in place at the time of the initial

    2 appearance and at the time of the running of the 60

    3 days, that this motion is an untimely motion.

    4 Beyond that, we would suggest that again this

    5 is a fragmented approach to motions practice. The

    6 Defence obviously reviewed the indictment and they

    7 reviewed it carefully because in September they set

    8 forth their motion to strike certain portions. Why did

    9 they not at that time include a motion alleging defects

    10 in the form of the indictment? Your Honour, as I said,

    11 that is a technical matter. We will go beyond that and

    12 talk about what they are discussing in what appears to

    13 be a motion alleging defects in the form of the

    14 indictment.

    15 First of all, they refer to paragraph 9 of

    16 the indictment and assert that based on defects in that

    17 paragraph, the entire indictment should be dismissed

    18 and should be dismissed with prejudice. As part of

    19 that assertion, they assert that charging the

    20 accused -- that we're charging with the accused with

    21 genocide in paragraph 9 but that not a single one of

    22 the acts and omissions complained of in the paragraphs

    23 following paragraph 9 refer to acts of genocide as

    24 specified in Article 4(2), that is enumerated acts. On

    25 that latter assertion, Your Honour, we suggest that

  18. 1 they are completely without foundation in the

    2 indictment.

    3 First of all, that latter assertion

    4 misperceives the required structure of an indictment.

    5 It is not required that every paragraph in an

    6 indictment be able to stand on its own as a legal

    7 charge, as a mini indictment, if you will. You must

    8 consider the indictment as a whole. And certainly,

    9 looking at the paragraphs following paragraph 9, those

    10 paragraphs are replete with assertions that constitute

    11 enumerated acts under Article 4(2). They speak of

    12 killings that occurred in the camps. Killings are

    13 specified as an enumerated act under 4(2), 4(2)(a),

    14 they speak of beatings, torture, sexual assault, and

    15 other such attacks on the persons. This is covered by

    16 the enumerated act 4(2)(b), which talks about causing

    17 serious bodily or mental harm on members of this

    18 group. They also talk about people being detained

    19 because of their ethnic or religious group. They talk

    20 about conditions of life that are calculated to bring

    21 about the physical destruction of the group. That is

    22 subparagraph 4(2)(c), so the allegation, the assertion

    23 that there are no enumerated acts asserted in the

    24 paragraphs that follow paragraph 9 is simply not true.

    25 Concerning the language of paragraph 9,

  19. 1 should this Trial Chamber determine that by that

    2 language the Prosecution is attempting to allege

    3 another act under subparagraph 3, the appropriate

    4 action for this Trial Chamber to take would be to

    5 strike paragraph 9. It certainly would not be, for

    6 this Trial Chamber, to dismiss the indictment, because

    7 to do that you must look at the indictment as a whole,

    8 and as a whole, the indictment sets forth a basis for

    9 the charges, sets forth the charges, sets forth the

    10 basis for individual criminal liability. Furthermore,

    11 there is certainly no basis for this Trial Chamber to

    12 conclude that even were they to dismiss the indictment,

    13 they must do so with prejudice. There is no indication

    14 that we went forward --

    15 JUDGE MAY: What does striking or dismissing

    16 it with prejudice mean?

    17 MS. HOLLIS: With prejudice, I assume, Your

    18 Honour, that we would not be allowed to amend the

    19 indictment to cure the defects and go forward. That is

    20 my understanding of "with prejudice" compared to

    21 "without prejudice," and that is the position from

    22 which I am speaking, Your Honour. Of course, if the

    23 Trial Chamber has a different definition, then my

    24 remarks would not be on point.

    25 JUDGE MAY: I've got no definition at all, so

  20. 1 I wanted to find out what it meant. Yes.

    2 MS. HOLLIS: For those reasons, Your Honour,

    3 we would suggest that this motion to dismiss the

    4 indictment or the motion alleging defects in the

    5 indictment and asking for the relief of dismissal with

    6 prejudice should be denied.

    7 Your Honour, turning to the concerns the

    8 Defence had on the pre-trial brief itself next, if I

    9 might?

    10 First of all, I would like to point out that

    11 the concerns they allege regarding this pre-trial brief

    12 seems to misapprehend the function of the pre-trial

    13 brief. The most significant function perhaps is the

    14 last function that was listed by this Court's order,

    15 and that is to identify points that are at issue. And

    16 certainly, if you read the Defence response to our

    17 pre-trial brief, you will realise the points we raised

    18 are all at issue in terms of the Defence.

    19 If we look at the Defence response as denying

    20 or agreeing to those points, you will see that in every

    21 instance where we have raised our position on a legal

    22 matter that must be decided by this Trial Chamber -- at

    23 least in the view of the Prosecution that must be

    24 decided by this Trial Chamber -- the Defence has

    25 basically said that they disagree with our position.

  21. 1 So in that regard, we have done a very good job of

    2 identifying points in issue, and it appears that all

    3 points are in issue.

    4 And there is really no way for the

    5 Prosecution to narrow points in dispute if, in fact,

    6 all the points are in dispute.

    7 First of all, we suggest that by a plea of

    8 not guilty and by the lack of any stipulation as to any

    9 element, then the plea of not guilty and the lack of

    10 stipulation does place all the elements in dispute and,

    11 of course, the Prosecution must prove them beyond a

    12 reasonable doubt. Beyond that, in regard to the

    13 positions on the various elements and the definitions

    14 that we set forth in our pre-trial brief, it appears

    15 the Defence disagrees with all of those positions and

    16 definitions. Ultimately, this Trial Chamber will have

    17 to decide, much beyond the elements of genocide as they

    18 are set forth in Article 4, they will have to decide

    19 also the scope and the meaning of the various bases for

    20 individual criminal liability as they pertain to this

    21 case. They will have to determine -- you, the Trial

    22 Chamber, will have to determine how you define the

    23 various elements, what the parameters of those various

    24 elements of genocide are within the scope of the facts

    25 of this case.

  22. 1 You will also have to decide what complicity

    2 means in terms of culpability within the scope of the

    3 facts of this case. Those are legal issues this Trial

    4 Chamber will have to address. When you choose to

    5 address them is entirely up to you. In the Tadic case,

    6 we requested, along with the Defence, that the Trial

    7 Chamber provide us with their elements of the offences

    8 as well as their definitions of those elements before

    9 we went to trial. The Trial Chamber indicated that

    10 that would be developed as the facts came in and that

    11 at the conclusion of the case, they would make those

    12 determinations.

    13 However this Trial Chamber may choose to

    14 decide those issues, at some point, of course, you must

    15 decide them. And the reason we put forth the points

    16 that we put forth is because the Prosecution believes

    17 those are relevant to issues you must decide.

    18 In toto then, Your Honour, regarding the

    19 request for relief that the Defence have raised through

    20 their response, we would ask that you deny these

    21 requests for relief. We would also ask, as I indicated

    22 earlier, to the extent you believe it is necessary, we

    23 be allowed to file a written response to the motions

    24 that they have raised in their response.

    25 Thank you, Your Honour.

  23. 1 JUDGE MAY: Mr. D'Amato, it's right, isn't

    2 it, that you did withdraw your original motion in

    3 relation at least to "Superior Authority." That's my

    4 clear recollection of it.

    5 MR. D'AMATO: Your Honour, I concede that,

    6 and I concede the point on "Superior Authority." That

    7 was covered before.

    8 I don't concede the general point that we're

    9 estopped -- we are ever estopped thereafter from

    10 raising problems --

    11 JUDGE MAY: You're not estopped, but it's

    12 rather against you if you have withdrawn it once.

    13 MR. D'AMATO: On "Superior Authority," yes,

    14 but on the other issues they say why didn't we complain

    15 about that earlier? I think if there are fatal defects

    16 in an indictment, we are never estopped from

    17 complaining. Even at trial, we could bring it up. The

    18 defendant should not be punished with life imprisonment

    19 because the attorneys weren't quick enough to point out

    20 a fatal flaw in the indictment. If the indictment is

    21 fatally flawed, even the Court itself could notice that

    22 at any point in the trial and throw the case out. So I

    23 don't think estoppel carries as far as Ms. Hollis

    24 suggested, but I certainly agree with her about -- I

    25 think we have to concede on the "Superior Authority"

  24. 1 question.

    2 I also want to say in response briefly to the

    3 idea that we should have been bringing this up in

    4 motions and what does it have to do with their

    5 pre-trial brief, if I may remind the Court that in

    6 scheduling order of March 5th, you told us to file one

    7 or more documents setting out those points, if any, of

    8 the indictment and the Prosecution pre-trial brief,

    9 those which are admitted, those which are denied.

    10 Well, this motion -- this Defence reply that

    11 I filed on the 7th, just hours before we caught the

    12 plane to come here, is entitled "Defence reply to the

    13 indictment and to the Prosecutor's pre-trial brief."

    14 So we tried to do it in one document -- when you said

    15 one or more documents, we tried to do it all in one,

    16 and we tried to reply to the indictment as well as the

    17 Prosecutor's pre-trial brief, and I think that we are

    18 following the court's directive there and not trying to

    19 do something that was outside of motion practice. I

    20 think the idea here is to try to do these things

    21 economically and get them to you in time so the

    22 Prosecution could have a few days to look at them while

    23 we are en route to The Hague.

    24 On the question of dismissing with prejudice

    25 the indictment against Dr. Kovacevic because of the

  25. 1 allegation of genocide, I think Ms. Hollis' arguments

    2 are well-presented and give the Court an opportunity to

    3 consider the question from both sides, and I really

    4 have no comment except to say that when Ms. Hollis says

    5 that the subsequent paragraphs do refer to acts

    6 enumerated in Article 4(2), killings, for example, I

    7 respectfully disagree. The killings are only relevant

    8 to genocide if they are undertaken with the intent to

    9 destroy in whole or in part members of a group because

    10 of their membership in a group as such. And there's no

    11 allegation about that. There certainly are allegations

    12 of killings, but to connect that up to genocide is not

    13 done in the indictment where it should have been.

    14 Perhaps this issue is one, as Ms. Hollis

    15 suggests, that deserves briefing on both sides, written

    16 briefing. So we would certainly, if the Court wishes

    17 to have that, we would be delighted to engage in that

    18 activity in the next week or so, if that's what the

    19 Court wishes.

    20 I disagree with Ms. Hollis' remark that if

    21 she raises any issue in the brief and we dispute it,

    22 then it becomes relevant because it's a disputed

    23 point. I mean, under that theory, you could raise in

    24 your brief crimes against humanity, violations of the

    25 Genocide Convention, airjacking, hijacking, all kinds

  26. 1 of things, and if we object to them suddenly they

    2 become relevant because she says now they're an issue.

    3 I mean, that to me, that is no standard of what

    4 constitutes something being an issue.

    5 With respect to the arguments about

    6 deportation and persecution and other things, our

    7 position is that's irrelevant to this trial, totally

    8 irrelevant. Ms. Hollis is suggesting that because

    9 we're saying it's irrelevant, they now become issues

    10 that are properly before the Court. A very interesting

    11 argumentative strategy, but I think the court will

    12 understand that what we are saying is they have nothing

    13 to do with this case and therefore they're not an

    14 issue. They're being introduced for the purposes of

    15 broadening the concept of genocide and creating at the

    16 trial, almost with every witness, a mini trial on the

    17 legal issues of what constitutes genocide, and I again

    18 repeat that I think the most economical way to approach

    19 is to take the common elements here, namely the words

    20 of the Statute, and proceed on that. And that's what

    21 genocide means. It doesn't mean the extensive

    22 broadening that appears in the Prosecution's brief on

    23 the question because those are just speculations and we

    24 dispute those.

    25 On the other hand, if the Court would like us

  27. 1 to argue each one of those points separately, we are

    2 certainly prepared and willing to do that.

    3 Your Honour, I think I covered the points I

    4 want to make. Thank you.

    5 JUDGE MAY: We will consider this motion and

    6 we will rise for half an hour. Sit again at 11.15.

    7 --- Recess taken at 10.46 a.m.

    8 --- Resumed at 11.20 a.m.

    9 (In open session)

    10 JUDGE MAY: We deal with the requests for

    11 relief by the Defence.

    12 First, the reference to "Superior

    13 Authority." That point was conceded on the 27th of

    14 February and is conceded again, so there is no need for

    15 us to make any ruling.

    16 As for the remaining matters, they all

    17 relate, in effect, to the substance of the indictment.

    18 In our judgement, they are misconceived. The indictment

    19 must be read as a whole and not by individual

    20 paragraphs. Those paragraphs are not independent of

    21 each other but must be read together.

    22 Equally, we do not accept that the

    23 Prosecution are trying to broaden the definition of

    24 "genocide" as is suggested. For instance, the

    25 references to deportation and persecution, to which

  28. 1 Mr. D'Amato has referred, are capable, in our judgement,

    2 of coming within the definitions in Article 4(2)(b) and

    3 (c). Accordingly, these requests for relief are

    4 refused.

    5 However, we have considered the suggestion

    6 which has been made by Ms. Hollis in relation to briefs

    7 upon definition of the elements of genocide, and we

    8 have come to the conclusion that we would find it

    9 helpful to have briefs from both sides defining the

    10 legal elements of genocide. We appreciate that the

    11 Prosecution pre-trial brief, in fact, is directed to

    12 that issue, but we would invite the Prosecution to

    13 consider within 28 days and, if so advised, to expand

    14 that definition, and we would be helped by a brief from

    15 the Defence, again with 28 days.

    16 Mr. D'Amato, is there any difficulty about

    17 that?

    18 MR. D'AMATO: No. In general, Your Honour, I

    19 just want to ask two quick questions: Will we be

    20 responding to the Prosecution's brief; in other words,

    21 what we have here we will write a brief on?

    22 JUDGE MAY: Yes.

    23 MR. D'AMATO: And secondly, would you

    24 consider limiting the definition of genocide to those

    25 issues that are applicable to the defendant in this

  29. 1 case?

    2 JUDGE MAY: I think we would want the matter

    3 defined in relation to this case, if that's of

    4 assistance.

    5 MR. D'AMATO: Fine. So if there are things

    6 that are quite unrelated, they would not be included in

    7 the definition.

    8 JUDGE MAY: An academic discourse is not

    9 needed.

    10 MR. D'AMATO: Thank you.

    11 JUDGE MAY: As I say, that we would find

    12 helpful.

    13 I would add this: Both parties should file

    14 copies of their authorities in English, please, with

    15 the brief.

    16 JUDGE CASSESE: At the request of the

    17 Presiding Judge, I would like to draw your attention,

    18 when considering the various issues relating to

    19 genocide, to a recent judgement delivered by a German

    20 court in a case -- I do not remember by heart the date

    21 but I think it's the Jorgis case, J-O-R-G-I-S. I am

    22 afraid it is available only in German, but we do have a

    23 copy here in the library of our Tribunal, so it might

    24 be useful for both parties to study carefully this case

    25 because it deals with genocide in Bosnia-Herzegovina.

  30. 1 JUDGE MAY: When those briefs have been

    2 filed, the Trial Chamber will consider them and decide

    3 whether it would be appropriate or not to make any sort

    4 of ruling, but we will consider that in due course.

    5 Are there any other matters to be dealt with

    6 in open session before we go into closed session?

    7 MR. VUCICEVIC: If I may have the floor, Your

    8 Honours?

    9 Just two points of clarification. I had an

    10 opportunity to discuss with Mr. Keegan from the Office

    11 of the Prosecutor our conference concerning documents

    12 that are requested to be admitted and it seems, you

    13 know, practically it will be impossible to go through

    14 all of these documents that I have today and tie up the

    15 whole, you know, bunch of documents that I have in my

    16 office in Chicago that have been sent there by the

    17 Office of the Prosecutor, and I can't make any kind of

    18 agreements with him until I review all of that

    19 material, so I would respectfully ask you to postpone

    20 the conference -- the opportunity you have given us for

    21 Friday.

    22 JUDGE MAY: Very well.

    23 MR. VUCICEVIC: That's number 1.

    24 And number 2, I hope -- I am just making this

    25 remark so hoping that this is going to come in your

  31. 1 written decision. When you made the ruling on the

    2 protection of witnesses and to the extent to which

    3 Defence has the opportunity, as you put it, right to

    4 interview them, and, you know, I respect your

    5 decision. However, I am a little bit in an unclear

    6 situation about the points that I have not so strongly

    7 raised in my brief as far as the psychiatric evaluation

    8 of the witnesses and refugees from Bosnia. And if I

    9 may, I'm not quite sure whether your ruling is

    10 referring to disclosure of any information of the

    11 psychiatric treatments of all the witnesses that are

    12 going to be testifying and who have been subjected to

    13 this form of recovery of suppressed memory.

    14 This is extremely critical to us to evaluate

    15 these witnesses and since you have not articulated that

    16 part -- I am not asking you to do so, I am just merely

    17 emphasising the point that I did not sufficiently it

    18 emphasise in our brief. And with the University of

    19 Illinois in Chicago, there is a professor of psychiatry

    20 who has been in charge of the Hartland Institute, I

    21 believe the programme is called, who has been working

    22 for a few years with refugees from Bosnia and --

    23 several hundreds of them, and there is a man from

    24 Kozarac whose name was in the paper and there were

    25 statements about this type of therapy. That's where

  32. 1 the information came to me.

    2 JUDGE MAY: Mr. Vucicevic, we have made our

    3 ruling. That is, we are denying your applications.

    4 The Prosecution have said that they will ask the

    5 witnesses about these matters and inform you of any

    6 such information which they receive. Beyond that, no

    7 further interviews or requests should be made.

    8 So the answer is that your applications, your

    9 applications for relief, have been refused, and the

    10 position is you will get whatever information the

    11 Prosecution is able to give you. For the rest of the

    12 matter, you must ask the witnesses when they come to be

    13 cross-examined, but no further application to interview

    14 them can be entertained.

    15 So that's the position.

    16 MR. VUCICEVIC: Your Honour, looking in the

    17 practical matters, and this is not -- this is just

    18 further clarification -- nothing, because, you know,

    19 your decision is fully accepted -- fully, you know,

    20 accepted, you know, I'm not asking you, you know, to do

    21 anything about it, because when I'm looking further

    22 down in cross-examining these witnesses, I am quite

    23 dismayed that asking a witness what had happened --

    24 "Have you had psychiatric treatment or not?" If I

    25 have to ask every witness who come before you, I am

  33. 1 afraid I will sound like a broken record, and after a

    2 couple of times you'll say, "Mr. Vucicevic, please

    3 don't ask that question anymore."

    4 JUDGE MAY: Let's worry about that when the

    5 time comes.

    6 MR. VUCICEVIC: Thank you, Your Honour.

    7 JUDGE MAY: If there are no further matters

    8 for open session, the Court will go into closed session

    9 now.

    10 (Closed session)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (status conference dealt with in another document)