1 Wednesday, 3rd December 1997
2 (10.00 am)
3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.
4 Can we have the witness in? Can we have the
6 MR. NIEMANN: If your Honours please, my name is Niemann and
7 I appear with my colleagues, Ms. McHenry, Mr. Dixon and
8 Mr. Khan for the Prosecution.
9 JUDGE KARIBI-WHYTE: Can we have appearances for the
10 Defence, please?
11 MS. RESIDOVIC: Good morning, your Honour, I am Edina
12 Residovic, Defence counsel for Mr. Zejnil Delalic.
13 Appearing with me on behalf of Mr. Delalic is my
14 colleague, Professor Eugene O'Sullivan from Canada.
15 MR. OLUJIC: Good morning, your Honours, I am Zeljko Olujic,
16 attorney from Croatia, appearing on behalf of Mr. Zdravko
17 Mucic together with my colleague Mr. Michael Greaves,
18 attorney from the United Kingdom.
19 MR. KARABDIC: Good morning, your Honours, I am Salih
20 Karabdic, attorney from Sarajevo, appearing on behalf of
21 Mr. Hazim Delic, together with Mr. Thomas Moran, attorney
22 from Houston, Texas.
23 MR. ACKERMAN: Good morning, your Honours, I am John Ackerman
24 and along with Cynthia McMurrey we appear on behalf of
25 Mr. Esad Landzo.
1 JUDGE KARIBI-WHYTE: Thank you very much.
2 (Witness entered court)
3 MS. RESIDOVIC: The witness is just coming in and I wanted
4 to ask you, your Honours, for permission to address you
5 with only two sentences. May I?
6 JUDGE KARIBI-WHYTE: Let us get him sworn, then you can,
7 please. We will swear him and then you can start.
8 Kindly swear the witness.
9 MS. RESIDOVIC: Thank you.
10 JUDGE KARIBI-WHYTE: Please let the witness take the oath.
11 PROFESSOR ECONOMIDES (sworn)
12 JUDGE KARIBI-WHYTE: Thank you very much. Ms. Residovic,
13 let us hear you.
14 MS. RESIDOVIC: Your Honours, after the cross-examination
15 of Professor Economides, we would like to know what the
16 following procedure will be. We know that the
17 Prosecutor has mentioned a motion for hearing a new
18 expert witness; as the Defence we object vehemently to
19 that request and also we feel that the court should rule
20 on this request and that they should be argued before
21 the witness from Slovenia appears. We are also opposed
22 to such a practice that we have to decide about such
23 important things when the witness is already here. So
24 that I hope that when we finish with the
25 cross-examination of Professor Economides, could you
1 tell us when we will be deciding on this request or
3 JUDGE KARIBI-WHYTE: Thank you very much. You will hear
4 from the Trial Chamber immediately the opportunity
6 Mr. Niemann, continue with your witness.
7 MR. NIEMANN: The evidence-in-chief has been completed,
8 your Honours. Now it is time for cross-examination.
9 MR. O'SULLIVAN: We will proceed in this order during
10 cross-examination. First counsel for Mr. Mucic, second
11 counsel for Mr. Delic, third counsel for Mr. Landzo and
12 fourth counsel for Mr. Delalic.
13 Cross-examined by MR. GREAVES
14 Q. May it please your Honours, Professor Economides, we are
15 in the first week of December of this year. I think for
16 you 1st December was an auspicious day in your career.
17 Do you remember why that should be?
18 A. December 1st?
19 Q. December 1st, yes, Professor.
20 A. 4th December is my birthday, that is an important date,
21 but 1st December is not something I can think of right
23 Q. Perhaps I can remind you. It was the day in 1956 when
24 you had the privilege of defending your thesis before a
25 jury of professors at the University of Strasbourg.
1 A. That is a detail for me today, that is all.
2 Q. Of course. I think the topic upon which you chose to
3 address and address your thesis was:
4 "La question cypriote et le droit des peuples a
5 disposer d'eux memes".
6 A. Determination of peoples.
7 Q. May we take it from that in the period of 41 years since
8 you presented your thesis, the topic of
9 self-determination of peoples has been one that has been
10 uppermost in your professional career?
11 A. I would not say the total focus, but it is a question
12 I have always been interested in. When I was young, it
13 was a question about which I was passionate and since
14 then, I have been studying that issue, but it is not one
15 which was really at the very centre of my scientific
17 Q. Do you still stand by all that you wrote in your thesis?
18 A. I believe so.
19 Q. Thank you. Professor Economides, I would like now to
20 talk with you please about the work of the Venice
21 Commission, of which you are a member. I think the
22 proper name of the Commission is the European Commission
23 for Democracy Through Law, is that right?
24 A. Yes, that is right.
25 Q. It is, in fact, I think, an organ of the Council of
1 Europe, is that correct?
2 A. Yes.
3 Q. Help us about this, please: how do you get to be a
4 member of the Venice Commission? How did you get
5 appointed or invited to join it?
6 A. First of all the government must make a statement that
7 it wants to participate in the Venice Commission's
8 work. Therefore the decision at the very beginning of
9 the issue is a government one, that is the participation
10 of the government in the Commission's work and it is the
11 government itself which appoints its representatives.
12 I was appointed twice because I had my second term
13 within that Commission and I was nominated by the Greek
14 Minister for Foreign Affairs.
15 Q. In connection with the work about which you told us on
16 the last occasion you were here, I think it produced at
17 its meeting in the 1996, September 1996, a declaration
18 which was accompanied by an explanatory report, is that
20 A. Yes, that is absolutely correct.
21 Q. And in turn, the Council of Europe itself, as it were,
22 the parent organisation, has produced a draft
23 convention, the European Convention on Nationality.
24 A. Yes, but the two things are not linked, they are
25 different. The Venice Commission prepared its draft
1 which you have mentioned, that it was a draft
2 declaration, which was followed by an explanation of the
3 reasons and a basic report and then the Council of
4 Europe, for a long time, well before the creation of the
5 Venice Commission, was working on the issue of
6 nationality, and it determined that there would be a
7 convention -- an international convention for that
8 issue, which was also a product of the work of the
9 Council of Europe, but had nothing to do with the Venice
10 Commission and its declaration.
11 Q. Yes. Just so that we understand this, the Council of
12 Europe is composed, I think, of some 40 states, but not
13 including Bosnia-Herzegovina or the Federal Republic of
14 Yugoslavia, is that right?
15 A. Yes, that is correct, not yet.
16 Q. Not yet; no doubt when matters have resolved themselves
17 to everybody's satisfaction, that invitation will be
18 given to them. But is it right that Bosnia-Herzegovina
19 has in fact contributed to the work of the drawing up of
20 the European Convention, at the invitation --
21 A. That is quite possible, because the Convention also had
22 observers from several states, so it is very possible
23 that Bosnia-Herzegovina was one of the states that
24 participated in the drafting of the Convention, but as
25 an observer.
1 Q. Is it also right that that treaty will be open for
2 signatures by countries who are not members of the
3 Council of Europe, but who are invited by the Committee
4 of Ministers to sign if they want to?
5 A. Yes, the Convention has as its very objective the point
6 that it must be open to all states; that is the largest
7 number of states possible and probably there is a
8 procedure which allows this or that state in the Council
9 of Ministers to become part of the Commission so that
10 there would be the largest number of accepting parties
11 for the Convention possible.
12 Q. Help us about this, please, Professor: what is the
13 current status of the European Convention on
14 Nationality? Has it been put out for signature by the
15 member states?
16 A. It was open to the member states' signature and
17 currently it is being signed, but it has not gone into
18 effect according to what I know. In order for it to go
19 into effect, there needs to be ratification and we do
20 not have yet -- we have not yet reached that stage, but
21 it is a convention which has been signed and open to
22 signatures and which will become a convention which will
23 be applied within a short time, but I cannot tell you
24 exactly how long.
25 Q. Turning now to the work of the International Law
1 Commission, of which you are also a member, Professor,
2 that Commission too has been working on the topic of
3 nationality in the context of succession of states.
4 A. Yes.
5 Q. In July 1997, it produced a report containing not just a
6 series of commentaries on the topic but a set of draft
7 articles on this very aspect of international law?
8 A. Yes, that is correct.
9 Q. I think the draft -- it is in the form of, may we call
10 it, a draft treaty, national in relation to succession
11 of states.
12 A. That has not yet been decided. There is a trend in the
13 Commission which we saw in its session this year was to
14 set up a draft declaration, but after discussions, it
15 was decided that was premature to take a decision as to
16 the form, therefore it might possibly be a convention,
17 but I believe that this will be decided much later. For
18 the moment, there are draft articles, but we do not know
19 whether these will be a draft declaration or a draft
21 Q. Thank you. I was going to ask you about the procedure
22 by which this might eventually become a treaty. I think
23 it has received what is called a first reading, is that
24 the correct phraseology?
25 A. Yes, that is correct. There is the first reading, that
1 is the first stage. After that, the governments will
2 make comments about the draft, and the International
3 Commission will receive all the governments' comments
4 and then it will review once again all the drafts based
5 on the comments from the States and will adopt the draft
6 in the second reading, and once the draft has been
7 accepted in the second reading, it is sent to the
8 General Assembly of the United Nations, which will be
9 the organ to decide whether the draft will become an
10 international convention and in such a case, the General
11 Assembly of the United Nations will set up an
12 international convention, especially designed to change
13 the convention into something more permanent. Therefore
14 we need to wait some time before we reach an
15 international convention, if it is going to be adopted
16 at all, because there are still many people who state
17 that the draft has to be transformed only into a draft
18 declaration. If you want an estimate as to the time
19 involved, I could tell you that the ILC will review the
20 draft in the second reading in 1999, and the question
21 will come up before the General Assembly again in the
22 year 2000 and from that point on, we will see what the
23 fate of the draft will be.
24 Q. And so you have answered some of my next questions about
25 the time scale for those set of draft articles. We are
1 talking about well into the next century before it
2 achieves the status of settled law.
3 A. It is very close to the next century.
4 Q. Can I just digress a little bit, please, and ask you
5 about the 1978 Vienna Convention on Succession of
6 States. You are familiar no doubt with that
8 A. Yes.
9 Q. Is that convention yet in force, or has it yet to
10 achieve the requisite number of signatories?
11 A. It is not in force.
12 Q. Thank you. Professor Economides, in relation to the
13 work of the International Law Commission, you mentioned
14 on the last occasion that from time to time, the
15 International Court of Justice cites the work of the
16 International Law Commission, even if the stage that has
17 been reached is only the first leading. Do you remember
18 telling us that?
19 A. Yes.
20 Q. In relation to the draft articles about which we have
21 been talking this morning, has there been any case
22 before the International Court of Justice in which that
23 work has been cited, whether with approval or
25 A. No, as regards state succession, I do not think that the
1 International Court of Justice has cited anything that
2 comes from the International Law Commission. But as
3 regards the question of international responsibility and
4 other questions, which are still being codified before
5 the International Court of Justice, the court has in
6 fact cited the words of the ILC, but not as regards
7 state succession. But I should tell you that the
8 question of state succession now is reaching the first
9 year where it is being studied and I do not think there
10 have been any cases that have to go to the International
11 Court of Justice in order to incite some sort of
12 interest in it, that its work would be of any interest
13 to the International Court of Justice.
14 Q. Professor Economides, the task of the International Law
15 Commission is twofold, is it not? First of all, the
16 codification of the law that has been already developed
17 on the plane of international law, and secondly the
18 progressive development of law for the future; is that
20 A. Yes, absolutely.
21 Q. In essence, when a set of draft articles is produced, it
22 is a distillation of those two things; it is codifying
23 that which has become settled practice in international
24 law and effectively it is suggestions by learned
25 gentlemen such as yourself as to what is considered the
1 law ought to be for the future.
2 A. Yes, that is absolutely correct.
3 Q. Thank you very much. Can I turn now please to the
4 question of nationality and what the definition of that
5 is in the context of international law? Would you agree
6 with me that the classic definition of the word
7 "nationality" is that set out in the Nottebohm case of
9 A. Yes.
10 Q. Perhaps I can just refresh your memory as to what the
11 case actually says concerning that definition. Would
12 you prefer me to do it in the French or the English
13 version, which would assist you better?
14 A. I would prefer the French version.
15 Q. Then you shall have it in French:
16 "As regards practice of states, the arbitral and
17 judicial decisions and the decisions having to do with
18 case law, nationality is a judicial link and at its base
19 has a social desire to be attached to the effect of
20 solidarity of existence, which is of interest of joint
21 considerations, and the reciprocity of the right of
22 duties. It is the legal expression of the fact that the
23 individual on which it has been conferred is directly,
24 by the law, or by an act coming from an authority, more
25 closely linked to the population of a state conferring
1 on it than it is to any other state, that has been
2 conferred by a state, and gives it right to exist
3 vis-à-vis another state, only if it can show that the
4 individual is connected to that state which has made him
5 its national."
6 That is the accurate statement of the law, is it?
7 A. Yes, that is the definition which is the most complete
8 one and the most correct one having to do with
9 nationality that I am familiar with.
10 Q. And it is the definition which has been used as the
11 basis for the work of all of the two commissions in
12 which you have been working?
13 A. Yes.
14 Q. Are you familiar with an English textbook called,
15 "Oppenheim's International Law"? Is that a textbook
16 that you know?
17 A. Yes.
18 Q. Is that a well respected textbook, Professor?
19 A. Yes.
20 Q. That textbook, I think, quotes the Nottebohm definition
21 with approval and also uses this phrase and I wonder
22 whether you would also agree with this:
23 "Nationality of an individual is his quality of
24 being a subject of a certain state."
25 A. Yes.
1 Q. I would like to put this proposition to you, Professor,
2 on the issue of nationality. Would you agree with me
3 that it is clear law that the issue of who is and who is
4 not a national of a particular state is a matter for the
5 internal laws of that individual state, subject to the
6 limitations that international law rules put upon it?
7 A. I agree absolutely that it is internal law which
8 designates who are the nationals of that state,
9 therefore it is through internal law and the state
10 jurisdictions which fall under the jurisdiction in each
11 state that it can determine who its nationals are, but
12 the determination must be made according to
13 international laws which, as you have just said, they
14 have to be conditional on agreement with the laws of
15 international law, therefore it is state jurisdiction,
16 but may be subjected to certain controls, having to do
17 with agreements with international law and its rules.
18 Q. That proposition was made as long ago as 1923 in the
19 case of the nationality decrees issued in Tunis and
20 Morocco and has gone through various treaties, a
21 principle that has been reaffirmed time and time again?
22 A. Yes.
23 Q. That is the state of law today, that within those
24 limitations, it is for the individual state to determine
25 who its nationals are. The effect of that is that it is
1 not within the power of any outside agency to tell a
2 state who its nationals should be?
3 A. In principle you are right, but in the Nottebohm case,
4 nationality which was conferred on Liechtenstein was not
5 accepted by Guatemala. Therefore there was one state
6 which did not accept a government decision which had
7 conferred nationality. After the opposition, there were
8 various discussions between Guatemala and Liechtenstein
9 which were brought before the International Court of
10 Justice, and the International Court of Justice said
11 that it was not the national state that was right but
12 the government who had opposed the recognition of the
13 nationality of Liechtenstein.
14 Therefore, your comment is correct, that is the
15 state which grants nationality, but this is not
16 unchallengeable in every case. It can even be
17 overturned. It depends on whether internal laws, when
18 applied to give nationality to somebody, are in
19 accordance with international law, but I do agree with
20 you that there is a general trend, and that is relevant,
21 in which we see that the state grants nationality to its
22 nationals, but there are exceptions.
23 Q. I am going to come back to the Nottebohm case in a
24 little while, but I just want to deal with one other
25 matter, and it is this, Professor. Would you agree with
1 me that it is clearly the law that when a succession of
2 states takes place which involves the dissolution of the
3 predecessor state, the nature of the predecessor state
4 ceases to exist?
5 A. Yes, that cannot be challenged.
6 Q. So in the case involving the former Yugoslavia which was
7 once known as the Socialist Federal Republic of
8 Yugoslavia, when that dissolved, at that moment the
9 nationality of the Socialist Federal Republic of
10 Yugoslavia also disappeared?
11 A. Yes, when the dissolution had occurred, the nationality
12 of the former Yugoslavia necessarily would disappear,
13 but I would say that when the dissolution became
14 operative, this is a very specific issue.
15 Q. I am not going to ask you to tell us when that date was,
16 I think that is a matter for others to establish. You
17 told us on the last occasion about the means by which it
18 is accepted internationally that people can acquire
19 nationality, and you mentioned three means of
20 acquisition. Can I just refresh your memory as to what
21 you told us? They are the jus soli, and would it be
22 right to say that that is, in broad terms, deriving your
23 nationality from the place where you are born?
24 A. Yes, through birth on a certain territory, certain
1 Q. Then the second was the jus sanguinis, which in broad
2 terms is deriving your nationality from your family,
3 where your parents are born and their nationality.
4 A. Yes.
5 Q. And the third means you mentioned was naturalisation, a
6 well known procedure by which you apply to become a
7 national of a particular country and they accept you.
8 A. Yes.
9 Q. The textbook Oppenheim mentioned two other means of
10 acquisition, and I would just like you to help us and
11 see whether you agree that they are also potential ways
12 of acquiring nationality. One is referred to as
13 resumption of nationality, in other words recovering a
14 nationality that you had at some former time. Would you
15 agree that that is a means of acquiring nationality?
16 A. Yes, but I would say that that is on another level. It
17 is an auxiliary method which is somewhat exceptional,
18 but it does exist, but I have to make clear that the
19 three examples that I know were not cited in order to
20 exhaust all the cases. There are other ones as well.
21 These were examples I was giving you, the most striking
22 ones. There are other cases as well. In principle,
23 I agree with Oppenheim that there were other people who
24 give exhaustive lists of cases of when nationality was
1 Q. I am not trying to catch you out, Professor, I just want
2 to make it absolutely clear that there are other methods
3 and there is one more I want to mention to you. In the
4 past, nationality has been acquired by people because
5 their territory has been either annexed or ceded in some
7 A. Yes.
8 Q. Thank you. The Nottebohm case which I said I would come
9 back to, I think it is quite helpful just to look at the
10 facts of that case so that one can extract from it the
11 nature of the words "effective link", which I think is
12 the phrase which is used as a means of describing
13 somebody's nationality in the two commissions in which
14 you have worked, is that right? That is the classic
15 phrase, "effective link".
16 A. Yes.
17 Q. Mr. Nottebohm I think was a German by birth, and over the
18 years prior to the Second World War, he had established
19 a substantial business in Guatemala. Do you recall
21 A. Yes.
22 Q. In 1939 when the clouds of war in Europe were gathering,
23 Mr. Nottebohm spotted that that might well have a serious
24 impact on his commercial life, and so he applied for
25 citizenship of Liechtenstein.
1 A. Yes, that is right.
2 Q. At that stage, he had no real genuine links with
3 Liechtenstein, other than a brother who had lived there
4 for a while.
5 A. Yes.
6 Q. Having acquired Liechtenstein nationality, he went and
7 resumed his commercial life, no doubt doing his business
8 in Germany and Guatemala, and then Guatemala declared
9 war on Germany and so he became, as far as Guatemala was
10 concerned, an enemy alien, is that right?
11 A. Yes.
12 Q. They chose thereby to ignore the fact that he had on the
13 face of it acquired Liechtenstein nationality.
14 A. Yes.
15 Q. And he was deported to the United States, he lost his
16 property and it was as a result of that that action was
17 taken by Liechtenstein to try and protect his assets.
18 A. Yes.
19 Q. Would you agree with this, that the most important
20 aspect of the phrase "effective link" or "genuine link"
21 is habitual residence?
22 A. Yes.
23 Q. That is not the only one, but that is the one which is
24 thought by authoritative writers on the subject to be
25 the principal criterion of "effective link".
1 A. Yes, that is correct.
2 Q. But it would also be right to look at, for example,
3 place of birth, place of education, career, business
4 interests, participation in public life and affairs,
5 voting and other family connections with a particular
7 A. Yes, that is correct.
8 Q. And those criteria can be used, as in the Nottebohm
9 case, to determine of which country people are nationals
10 and indeed of which country they are not nationals.
11 A. Yes.
12 JUDGE JAN: Just a minute, Professor. Is there a
13 distinction between domicile and nationality? Habitual
14 residence may be indicative of domicile, not
16 A. These are two different things. Somebody may have the
17 nationality of this or that state and have his domicile
18 outside that state. He remains a national, let us say,
19 of the United Kingdom, even though he may live in
20 France. Most frequently, both coincide, nationality and
21 domicile. A Greek who has Greek nationality who lives
22 in Greece and lives with all the other millions of
23 Greeks is there, but those are two different things,
24 domicile and nationality. They are not the same thing.
25 Most frequently there is a coincidence, or the two come
1 together, but the two elements may not coincide, which
2 was the case which I pointed out of someone who may be a
3 national of a state but has his residence or domicile in
4 another state.
5 JUDGE JAN: Sorry for the interruption.
6 MR. GREAVES: Please feel free, your Honour. Just to give an
7 example of that, Professor, Judge Jan at the moment is
8 plainly a citizen of the Republic of Pakistan, but at
9 the moment he is living in The Hague and he might be
10 thought to be domiciled in The Hague. Would that be a
11 fair way of dealing with that aspect?
12 JUDGE JAN: No, there is another element. The intention to
13 revert back.
14 MR. GREAVES: I was well aware of that, your Honour.
15 A. If he has an international activity, he does not change
16 domicile, according to Greek law. In other words, any
17 Greek official working for the United Nations, for
18 instance, is regarded as having his domicile in Athens,
19 the capital of Greece. There is a change in domiciles
20 if somebody settles for private reasons in another
21 country, has professional, commercial activity in
22 another country, which is quite legal anyway.
23 Q. Professor, I want now to turn to the three principles
24 you enunciated concerning nationality, please, the first
25 of which was this, and your evidence was this:
1 "Any person involved in state succession is
2 entitled to a nationality."
3 That is a principle which is derived, is it not,
4 from Article 15 of the Universal Declaration on Human
6 A. Right.
7 Q. The date of the Universal Declaration, was that 1948?
8 A. Yes, 48.
9 Q. The origin of the Universal Declaration of Human Rights,
10 and correct me if I am wrong, was it very much a
11 document that arose out of the events and consequences
12 of the Second World War?
13 A. To the major extent, yes.
14 Q. An expression of the world community's desire that the
15 events of that war should not happen again?
16 A. Yes, absolutely.
17 Q. And one of the principal considerations that brought
18 about Article 15, would it be this, that at the end of
19 the war in 1945, particularly in Europe, there were
20 large numbers of people who had become displaced
22 A. Yes, probably.
23 Q. And because of substantial and significant changes in
24 territorial boundaries as a result of the consequences
25 of the war, there were large numbers of people who had
1 become stateless.
2 A. Yes.
3 Q. And large numbers of people who had been expelled from
4 territories in which they had formerly lived, for
5 example the expulsion of ethnic Germans from Poland or
7 A. Yes, that is true.
8 Q. And that state of affairs caused large numbers and very
9 significantly large numbers of people who had no
10 nationality, i.e. stateless persons?
11 A. Yes.
12 Q. Would it be right to say that since 1945, it is
13 statelessness which has been very much a motivating
14 force for the succession of treaties that have been
15 arrived at on the topic of nationality?
16 A. Yes.
17 Q. And that is because the large numbers of stateless
18 people caused enormous problems to the governments of
19 Europe in the years after the Second World War?
20 A. Yes.
21 Q. And I think there has been a convention in 1954 relating
22 to the status of stateless persons and then another one
23 on the reduction of statelessness in 1961, dealing with
24 that very topic.
25 A. Yes, that is quite correct.
1 Q. Would you agree with me that the draft articles of the
2 International Law Commission and the European Convention
3 on Nationality have very much as their focus the issue
4 of statelessness?
5 A. Yes, absolutely.
6 Q. And that really covers the second principle which you
7 enunciated to their Honours, the need for states to
8 avoid doing or passing legislation which brings about
9 statelessness to any person, not just large numbers of
11 A. Yes.
12 Q. I want now to turn to the third principle which you
13 enunciated, which is this, that a state which confers
14 its nationality on someone or on a group of persons must
15 respect the will of those people. You recall telling us
16 about that?
17 A. Yes, absolutely.
18 Q. May I suggest this to you, that that is not yet the
19 settled law in international law, and I will give you a
20 reason why that is so. It comes from Article 10 of the
21 draft articles of the ILC draft, which says this:
22 "States concerned shall give consideration to the
23 will of persons concerned whenever those persons are
24 qualified to acquire the nationality of two or more
25 states concerned."
1 A. Yes.
2 Q. What I want to suggest to you is that the present state
3 of the law is this, that the obligation is at best upon
4 a state to give consideration to the will of people, not
5 to follow it completely?
6 A. If you allow me to comment on this last observation,
7 I should say the following. Article 6 which you have
8 just read out is quite in keeping with your
9 presentation, but if you were to read articles related
10 to state succession and the ILC, in other words
11 Article 20, "transfer from the point of view of the
12 territory", Article 22, "state dissolution" and
13 Article 24, "separation of a part or parts of a
14 territory", and the following articles, you will notice
15 that in all these articles, the ILC sees it as mandatory
16 to have the right of option. In all cases, people have
17 to express themselves as to their nationality and
18 somehow as a matter -- whether they want that
19 nationality or not. I would even say that these
20 articles have a very wide scope.
21 For instance, Article 20, in case of a transfer of
22 territory, they have the right of option, not only with
23 people having an effective link with a neighbouring
24 country, but it applies to all people. Let us imagine
25 in Bosnia-Herzegovina if there was no independent state
1 but only a territory that had been given to
2 Bosnia-Herzegovina. The question should have been put
3 not only to the Serbs but also to the Croats to know
4 whether they too want to be nationals of
5 Bosnia-Herzegovina. This means that the option right
6 seen by the International Law Commission in all types of
7 succession goes much further and it is mandatory in all
8 cases of succession at a very large scale.
9 JUDGE JAN: Just a minute, Professor. The persons who find
10 themselves in the succeeding state, he has the option to
11 retain the citizenship of the parent state, but
12 supposing the parent state does not accept him, it only
13 accepts those which are within its territory. Then what
14 happens in that case? Citizenship is essentially, as
15 far as municipal law is concerned, the question of
16 relevant law, municipal law. The person finds himself
17 in a succeeding state and he wants to opt for the parent
18 state but the parent state will not accept him; which
19 nationality does he enjoy?
20 A. The relevant rights in a case of state succession, the
21 relevant right is the right of the successor state which
22 is being born and that state is entitled to grant its
23 nationality to all persons having the nationality of the
24 predecessor state and residing in the territory of the
25 successor state. That is an absolute right which is the
1 privilege of the successor state. On the basis of the
2 draft articles that we have mentioned, the successor
3 state must withdraw its nationality from the citizen
4 that has acquired the nationality of the successor
5 state. There is that kind of obligation, but to avoid
6 states of statelessness, they say that the predecessor
7 state should abstain to grant its nationality until the
8 successor state grants its nationality to the person
9 involved in a case of state succession. But possibly
10 the predecessor state may decide not to withdraw its
11 nationality, it has been noted in the past, in which
12 case the person will enjoy dual nationality, that of the
13 successor state granting its nationality and the
14 nationality of the predecessor state that keeps
16 Of course, if there is dissolution there is no
17 longer any predecessor state, but if that predecessor
18 state keeps existing, it may decide not to withdraw the
19 nationality from the person concerned, so that person
20 may have dual nationality. This may occur in quite a
21 few instances and I would say that the International Law
22 Commission privileges dual nationality, even multiple
23 nationality. It makes it possible for citizens to
24 acquire several nationalities. If you read the draft
25 articles, you will notice that a person may be entitled
1 to obtain the nationality of one or several successor
2 states. He can be from Slovenia and from Bosnia at the
3 same time. It is only draft law, but these are cases
4 that may occur.
5 JUDGE KARIBI-WHYTE: I am sorry, I do not think your answer
6 actually covered the points raised by my brother Jan.
7 His anxiety is in the circumstance that an option is
8 refused by the predecessor state. What happens?
9 A. The option right is not granted by the predecessor
10 state. It must be granted by the successor state. The
11 predecessor state would only exceptionally grant that
12 option right. For instance, in the new composition of
13 its population there are groups of citizens that
14 obviously do not wish to acquire that nationality, that
15 new nationality, and want to maintain the nationality of
16 the predecessor state, in which case the successor state
17 must give the right of option to such people. If it
18 fails to do so, what it does is impose by way of
19 authority a nationality that somebody does not want, so
20 the right of option is valid for the successor state and
21 not for the predecessor state.
22 JUDGE KARIBI-WHYTE: By that, you mean a citizen who is by
23 compulsion one of the successor state cannot opt to
24 predecessor state. Since it is only the successor state
25 which can grant its option, it means he cannot retain
1 his predecessor citizenship.
2 A. I possibly did not quite express myself correctly. The
3 classical formula of the right of option is as follows.
4 It has been noted in past history, the successor states,
5 after a reasonable period of time, will say to a
6 category of citizens the following: "do you want to
7 obtain my nationality or do you wish to keep the
8 nationality of the predecessor state?". The successor
9 state offers this choice between two nationalities, that
10 of the successor state and that of the predecessor
11 state, but -- this is carried out by the successor state
12 but individuals have then the option of choosing the
13 predecessor state's nationality if they so wish. This
14 is the classic procedure in the right of option.
15 The last occasion, I mentioned the case of the
16 Greek islands, which Greece obtained after the Second
17 World War. One year down the track, they organised the
18 right of option for the citizens, for the option of the
19 Italian speaking people on those islands, and the
20 Italian speaking individuals were granted the right to
21 choose Italian nationality. If they decided not to
22 choose it then they were keeping Greek nationality.
23 That is what we did in Greece straight after the time
24 when those islands became Greek property, as it were,
25 but this was decided after the right of option was
2 JUDGE KARIBI-WHYTE: Thank you very much.
3 MR. GREAVES: Professor, can I ask you this, please? We were
4 talking about draft Article 10 of the International Law
5 Commission's draft articles and I suggested to you that
6 the wording of that draft article implies that there is
7 no obligation to grant a right of option to the category
8 of people mentioned in Article 10. I suggest that
9 because that is set out in the commentary to the draft
10 articles in precisely those terms. It says this:
11 "The expression 'shall give consideration' implies
12 that there is no strict obligation to grant a right of
13 option to this category of persons concerned."
14 Do you accept that that is the meaning that is
15 imported by draft Article 10?
16 A. Yes, I do.
17 Q. Thank you. Similarly, the draft treaty -- sorry, the
18 European Convention on Nationality, Article 18.2(c),
19 with which I am sure you are familiar, has similar
20 phraseology, does it not?
21 A. Yes.
22 Q. So that it is plain what it says, Article 18.2 says
24 "In deciding on the granting or the retention of
25 nationality in cases of state succession, each state
1 party concerned shall take account in particular of",
2 and subsection (c) is:
3 "The will of the person concerned."
4 A. Yes, that is quite right.
5 Q. In the commentary to the European Convention that has
6 been provided to us, it says this:
7 "As regards sub-paragraph (c), the will of the
8 person concerned has to be taken into account. This
9 might entail, for example, giving persons a right of
10 option, or avoiding the imposition of nationality
11 against the wishes of a person."
12 Again, I suggest there is no obligation contained
13 in that article, no obligation to grant a right of
14 option in every case, is there?
15 A. Yes.
16 JUDGE KARIBI-WHYTE: Actually, let me get from the
17 Professor: these are the plain words of the draft, is it
18 that in international law a state can compulsorily
19 confer a citizenship on a group of persons if the new
20 status is derived from a new situation like a war
21 situation. Is that the meaning of that, when you
22 forcibly take your group of people out from an existing
23 state, international law insists that you can keep them
24 forcibly your citizens?
25 A. This is a very complex issue indeed. On the basis of
1 the principles of international law, a state may grant
2 its nationality, for instance, in a case of state
3 succession, following state succession and not military
4 occupation. Indeed, in the latter case, on the basis of
5 the law of war, a state may not, unless it violates the
6 basic principles, it may not change the nationality of
7 the people in the occupied territory, but when we have
8 to do with state succession, the successor state is
9 entitled to grant its nationality, even forcibly or by
10 way of authority, to all of its population. This has
11 been noticed and experienced in history, but here is the
12 change: after some time has elapsed, that state must
13 feel what the general feeling of the population is and
14 open the right of option. Once the state is settled and
15 everything is back to normal, then it must give its
16 right of option to those who obviously do not wish to
17 maintain the nationality that was forcibly put on them.
18 Throughout history, we have cases of option for
19 nationality, there are thousands of such cases, and
20 I believe this is current international practice.
21 So to reply to your question, I would say in a
22 case of succession a state is entitled to grant its
23 nationality, but not in any way, after some reasonable
24 period of time has elapsed. It must open the right of
25 option to such population and also to those groups that
1 cannot acquire the nationality of the successor state.
2 This has been noted throughout history. In the case in
3 point in this issue we are debating, indeed we have to
4 do with very important legal problems. Article 10
5 mentions the problem of option on the non-compulsory
6 basis. The Council of Europe Convention on Nationality
7 also has quite a flexible approach to the issue.
8 However, the Venice Commission, which issued a
9 declaration, sees the right of option as something
10 compulsory. The ILC, as regards state succession,
11 Article 20, 24, 26, which I have mentioned, sees the
12 right of option as something compulsory, mandatory.
13 I think we are at a given stage in the development
14 of international law, where not everything has been
15 crystallised. Is this an international compulsion,
16 obligation? I believe it is, to grant the option,
17 right. I am an internationalist, but other people may
18 not be of that opinion. It remains that the right of
19 option is something that is quite common in
20 international practice.
21 JUDGE KARIBI-WHYTE: Thank you very much. I am very
22 grateful. My apprehension mainly was that if such a
23 compulsory situation exists, and the new state has
24 within it a substantial minority of dissident citizens,
25 it is likely to have a snowball effect on this group of
1 people trying to break away again, unless perhaps there
2 is an opportunity for them to change their citizenship.
3 If you compulsorily retain them and there is no other
4 way of getting out of this situation, they might find a
5 way back. That is a personal view, it has nothing to do
6 with the current status of international law.
7 A. In law, you always attempt to give ways of getting out
8 of a problem, exit ways. In the case you have just
9 mentioned, your Honour, you still have the option of
10 having ex officio nationality, but there remains the
11 obligation to open a right of option when things have
12 settled down.
13 MR. GREAVES: Professor, can I just move on please now to the
14 question of what is the nationality of residents of a
15 successor state. What you told their Honours on the
16 last occasion you were here is that the rule is
17 categorically clear, that the successor state must
18 accord its nationality to all the nationals of the
19 predecessor state who have their habitual residence on
20 the successor state's territory. Can I put this to you,
21 so that you can find the passage in the ILC draft
22 articles. It is Article 4. It is right, is it not,
23 that that draft article says this:
24 "Subject to the provisions of the present draft
25 articles, persons concerned having their habitual
1 residence in the territory affected by the succession of
2 states are presumed to acquire the nationality of the
3 successor state on the date of such succession."
4 Do you recall that draft article?
5 A. Yes.
6 Q. This arises out of a question that the learned judge
7 Judge Jan asked on the last occasion, about the time lag
8 that occurs between a succession of states and the
9 possible granting of a right of option. Do you recall
10 the learned judge asking you about that?
11 A. I believe so.
12 Q. Is this right, that the purpose of Article 4 is to
13 address that very problem of the time lag between the
14 date of succession of states and either the creation of
15 legislation or the conclusion of a treaty that deals
16 with the question of granting a right of option?
17 A. Article 4 and Article 6 aim at directing people's
18 attention on the need for a nationality as soon as the
19 succession of states starts, to avoid any vacuum and
20 have people being without any nationality. These are
21 presumptions which, of course, are not cast in iron.
22 They, of course, may not happen in real life, because
23 nationality is not granted on the basis of a
24 presumption, but by action taken by the state. These
25 provisions say that the state has to make such
1 legislation so as to grant nationality as soon as the
2 succession of states starts. This has always been the
3 case in history. The first action taken by a sovereign
4 state who has become independent is to determine which
5 are the nationals of the new population in this new
6 state. So these two provisions, Article 4 and
7 Article 6, stress that, underline that, but as
8 principles, so that states do align themselves on such
9 practice, which means that if a state has not granted
10 its nationality and if a citizen will get that
11 nationality on the basis of Article 4, to acquire
12 nationality, you need to have an internal legislation
13 passed by the state granting nationality to specific
14 groups of people, inter alia to those who had the
15 nationality of the predecessor state and reside in the
16 territory of the new state.
17 Q. So there is a two stage process; first of all, when the
18 succession of states takes place, a presumption comes
19 into operation in line with Article 4, and then in due
20 course legislation is passed by the sovereign state
21 which sets out the basis on which people are nationals
22 of their state.
23 A. I would say that when there is state succession, it is
24 internal law which becomes applicable law. That is the
25 law that counts. Everything else are guidelines as to
1 how the law should operate. Therefore it is internal
2 law which must immediately grant nationality as provided
3 for in the articles that I have just cited. If there
4 are any questions or doubts, presumption, of course,
5 will find its place and may play a role, but if there is
6 no internal law which grants nationality, nationality
7 cannot be granted -- it can be conferred by this or that
8 article being applied.
9 Q. Can we turn now to the specifics, please, of rights of
10 option? Would you agree with this proposition,
11 Professor, that when we talk of a right of option, there
12 are two possible things that may occur. First of all,
13 the grant of a right of option under a treaty agreed
14 between the parties to a state succession, and possibly
15 other states as well who have an interest in the matter;
16 and secondly, it can come into existence by the passing
17 of appropriate national legislation. Those are the two
18 ways in which a right of option can be created.
19 A. Yes.
20 Q. Thank you.
21 A. I agree, but there is a nuance that should be brought
22 out here. That is, international treaties were used in
23 the past, that was the way that right of option was
24 provided for, that is in treaties, which regulated all
25 cases dealing with state succession, but the treaties
1 always provided for an option between two things. There
2 was a dilemma, nationality of the successor state or
3 nationality of the predecessor state. After the Second
4 World War, there were option rights that were granted
5 through national laws, it was not that one was to choose
6 between nationalities, but there was only one option.
7 For example look at my own nationality. It has to do
8 with the nationality of the state passing laws, but I do
9 agree with you that in both cases we have got a right of
10 option, but in the first case, this is to choose between
11 two nationalities, in the second case it is to choose
12 one nationality which has been determined.
13 Q. The Venice Commission, I think it was, that sent round a
14 questionnaire to its various member states asking it for
15 examples of instances of state succession and what had
16 happened on those occasions. I think you drafted the
17 reply on behalf of your country to that questionnaire,
18 is that right?
19 A. Yes.
20 Q. During your evidence about the existence of the
21 possibility of rights of option, you went through the
22 experience of your country over quite a number of years,
23 and occasions when rights of option had been granted.
24 Just by way of example, I would like, if we may,
25 Professor, please, to just go through those instances.
1 First of all, can you just help me about this?
2 I think in Greek law, there is no possibility of people
3 holding multiple nationality, is that right?
4 A. No, that is not quite right. According to Greek law,
5 there is Greek nationality, of course, but there are
6 many Greeks who have dual nationality. Actually, even
7 Greece, which has many Greeks outside its own borders,
8 is a country which favours the idea of dual nationality,
9 even multiple nationalities. All Greeks who are in the
10 United States, there are about three million of them,
11 are Greeks and also citizens of the United States, that
12 is US nationals. The same thing applies to those Greeks
13 in Australia or in Canada or throughout the world.
14 Therefore as far as nationality goes, Greece has a very
15 flexible approach.
16 MR. GREAVES: Would your Honour just give me a moment,
17 please? (Pause). I asked that question, Professor,
18 because the forms which have been created setting out
19 the various examples in relation to Greece indicate that
20 multiple nationality was not a possibility, but plainly
21 that is wrong.
22 A. I think that you are right, it was pointed out by the
23 Secretariat of Europe, but this was an error, and I am
24 sure that you saw that error and you thought it was
25 correct. But there were mistakes that had been made in
1 the reports of the Council of Europe. No, that is not
3 Q. I am glad to know they are not infallible.
4 Professor, help me about this. The first time
5 I think that a right of option was granted by your
6 country was in 1881 upon the incorporation, and you will
7 forgive me for mispronouncing the names of parts of your
8 country, I am sure, Thessaly and parts of Epiros in
10 A. Epiros, yes.
11 Q. Please forgive me for massacring your language. It is
12 not one I can do. Then the second occasion was 1913
13 when Macedonia, Crete and some islands in the Aegean
14 were incorporated into Greece?
15 A. That is correct.
16 Q. The next was between 1919 and 1923 when Western Thrace
17 was incorporated into Greece.
18 A. Yes, that is right.
19 Q. And the final occasion was 1947 when the islands, the
20 Dodecanes, were again incorporated into Greece?
21 A. Yes, that is correct.
22 Q. There was one aspect of each of those grants of right of
23 option that had rather dramatic consequences for those
24 who chose to exercise the right of option; in other
25 words, if you chose to exercise the right of option,
1 I think on each occasion except for one -- twice it was
2 a right to retain Ottoman nationality, Western Thrace it
3 was an option to retain Bulgarian nationality and the
4 Dodecanes Italian, but you had to leave the territory,
5 did you not? If you chose to exercise your right, you
6 had to leave your home.
7 A. The obligation to quit that territory, is that correct?
8 Q. That is right. That was a fairly drastic consequence of
9 the exercise of a right of option.
10 A. Yes.
11 Q. And it is a consequence which has been very common when
12 rights of option have been granted, it has been
13 frequently accompanied by the state granting the right
14 of option insisting that those who exercise it must
15 leave the territory. Would you agree with this,
16 Professor --
17 A. Yes, I agree absolutely with you and this is why: in the
18 Venice Commission, we try to change that rule, rather
19 that practice, and we stated in Article 6 that the
20 option favouring the predecessor state must not have
21 prejudicial consequences for those who are obtaining
22 them, specifically as regards their right to reside on
23 the territory of the successor state, and as their
24 property, whether real or moveable, that is one is
25 trying to change the rule and I do agree with you that
1 in former times, we experienced a practice which I can
2 say was relatively inhuman, because what is the right of
3 option if you choose the nationality of the successor
4 state, you have to then leave and take all your
5 property, you have to disappear from the successor
6 state. This is really a very violent way of approaching
7 things. That is why we are trying to change the rule
8 which in fact was applied until the end of the Second
9 World War. Yes, I agree absolutely with you.
10 Q. Help me about this: since 1990, within those states
11 which reported -- answered the questionnaire as you did,
12 I think there were a total of 15 occasions since 1990
13 when a succession of states had taken place, and of
14 those, eight had granted a right of option, but six had
15 not granted a right of option. Would you accept that?
16 A. I must say that I really did not count the cases, but
17 I know that the right of options were not granted in all
18 cases. This more or less confirms what you have just
20 Q. Given the rough similarity of figures, it appears that
21 state practice is somewhat divided at the present time
22 as to the obligation to grant a right of option.
23 A. Well, I think this has to be said with some nuance. The
24 former practice was much stronger. There was no doubt
25 at all that the right of option was very current, but
1 with the serious consequences which you have just
2 pointed out. After the Second World War, the rights of
3 option still appear, but they were not always respected
4 in all cases. You know that international law has a
5 great many weak points, and is not always honoured, but
6 that is another issue, that is another chapter that I do
7 not want to get into here. There are flaws in
8 international law that are well known by everybody,
9 violations of international law which are never
10 punished, but this does not mean that international law
11 does not exist and that the obligation does not exist,
12 even if it is not honoured in all cases. But I would
13 say now that I do not really remember in which cases
14 rights were granted and which cases they were not. That
15 is all I wanted to say about that.
16 Q. I do not want to go through a long list of states which
17 have and have not granted rights of option, otherwise we
18 will be here for a great length of time.
19 Help me about this, Professor. Let us assume that
20 either by treaty or by legislation a right of option is
21 in fact granted. If a right of option has been granted
22 to the citizens, to the nationals of a country, there
23 has to be some formal act in order to exercise that
24 option, does there not?
25 A. Yes, absolutely.
1 Q. For example, a form has to be filled out applying for
2 that nationality.
3 A. Yes, that is correct.
4 Q. And the state whose nationality has been applied for
5 will have to give out, for example, a certificate of
7 A. Yes.
8 Q. And I suspect that in pretty well every country in the
9 world there is an obligation to swear an oath of
10 allegiance to the state of which you have applied for
12 A. Yes.
13 Q. You cannot simply wake up one morning, for example in
14 1913, and say to yourself, "I feel Ottoman this
16 A. No, in general there are certain rules. At least a
17 piece of paper must be signed.
18 Q. Precisely so. You told us on the last occasion that you
19 had not looked into the question of what the nationality
20 laws of the states of the former Yugoslavia were, but as
21 far as you know, there was no grant of a right of option
22 in the case of Bosnia-Herzegovina in 1992. In the
23 absence of a grant of a right of option, it was not
24 possible for the habitual residents of that territory to
25 opt for some other nationality?
1 A. Yes.
2 Q. I think it is right, is it not, that Bosnia-Herzegovina
3 was pretty prompt in passing a nationality law, I think
4 the day following its declaration of independence; were
5 you aware of that?
6 A. No, I was not. I think that I had heard about a
7 nationality law in Bosnia-Herzegovina that was in
8 October 1992, whereas independence had occurred well
9 before that, if I am not mistaken.
10 Q. We need not go into the detail of that, but you are
11 satisfied no right of option was granted to the habitual
13 A. Yes.
14 Q. And so effectively they became citizens of
15 Bosnia-Herzegovina upon the succession of states?
16 A. That is a very important question. Bosnia-Herzegovina
17 becomes an independent state in 1992, I believe it was
18 in April. No laws were passed, whereas ordinarily, new
19 states first and foremost, before anything else, it
20 seems to me, do that, whereas Bosnia-Herzegovina did not
21 do that at all, which means by interpretation that
22 Bosnia-Herzegovina maintained its previous law having to
23 do with nationality, which is a law which had been
24 passed as part of the former Yugoslavia and the law
25 remained in effect, it was not rescinded, there were no
1 other ones, therefore one must assume that the previous
2 law remained in force, whereas that previous law stated
3 that all Bosnians are concomitantly nationals of
4 Yugoslavia. Therefore I must say that we have to accept
5 that for a certain amount of time all Bosnians had dual
6 nationality, the nationality of the former Yugoslavia
7 and the nationality of Bosnia-Herzegovina, pursuant to
8 the law of 1900 I do not know what, which had been
9 passed as part of the former Yugoslavia.
10 Therefore I agree with you and say that they were
11 all Bosnians, but at the same time they were also
12 nationals of the Socialist Federal Republic of
13 Yugoslavia, that is in April 1992. Therefore there was
14 dual nationality for everybody in my opinion, as an
15 interpreter of the facts.
16 Q. We are just going to come to the break, but one last
17 question on this topic, Professor. As you have agreed
18 before, at the moment of dissolution of the former
19 Socialist Republic of Yugoslavia, that nationality
20 ceased to exist.
21 A. Yes, absolutely.
22 MR. GREAVES: Thank you. Is that a convenient moment, your
24 JUDGE KARIBI-WHYTE: Thank you very much. We will take a
25 short break and reassemble at 12.00.
1 (11.30 am)
2 (A short break)
3 (12.00 pm)
4 JUDGE KARIBI-WHYTE: Will you kindly invite the witness,
6 (Witness entered court)
7 JUDGE KARIBI-WHYTE: Yes, you may continue, Mr. Greaves.
8 MR. GREAVES: Your Honours may be pleased to hear that I have
9 no further questions for the professor. Thank you very
11 JUDGE KARIBI-WHYTE: Thank you.
12 MR. MORAN: I guess it is good afternoon, your Honour. May
13 it please the court?
14 JUDGE KARIBI-WHYTE: Thank you. You may continue, please.
15 Cross-examined by MR. MORAN
16 Q. Thank you, your Honour.
17 Good afternoon, Professor. My name is Tom Moran
18 and I am an attorney, I represent a man named Hazim
19 Delic. I am going to ask you a few questions having to
20 do with some of the things you testified about earlier
21 today and also to clarify in my mind, and hopefully in
22 the court's mind some of the questions that were posed
23 to you by members of the court, and if there is any
24 question I ask that is not clear to you, will you please
25 stop me and have me clear it up.
1 Let me start with this, Professor. Would you
2 agree with me that there are basically four sources of
3 international law, and those would be the four sources
4 that are listed in Article 38 of the Statute of the ICJ;
5 international conventions, whether general or
6 particular, expressing rules expressly recognised by the
7 contesting states; international custom as evidence of a
8 general practice accepted as law; three, the general
9 principles of law recognised by civilised nations; four,
10 judicial decisions and teachings of the most highly
11 qualified publicists of the various nations, as a
12 subsidiary means for the determination of the rules of
13 law. Would you agree with me that those are the sources
14 of international law?
15 A. I agree absolutely with you, but I would like to also
16 say that the first three sources are the main sources
17 and the last, that is legal opinion, is an auxiliary
19 Q. Would you agree with me and I am going to show you two
20 sets of books, one is Oppenheim's International Law,
21 edited by Sir Robert Jennings, and the other is
22 Principles of Public International Law, by Ian
23 Brownlie. Would you agree with me that both of those
24 are authoritative as to the laws of international law?
25 A. More than references, they really are authorities,
1 scientific authorities.
2 Q. In fact since Sir Robert Jennings was the President of
3 the World Court, I do not think any of us would disagree
4 that he probably has a feeling for international law.
5 Also I want to talk to you a little bit just in
6 general about the ILC reports, including the one --
7 actually it was two, from 12th to 18th July this year,
8 and I believe it is United Nations document number
9 A5/2/10 and then there was an appendix -- actually
10 I have another United Nations number, A/CN.4/480. That
11 is the one that has -- that was published 27th February
12 of this year and there was another one, A/CN.4/480/add 1
13 from the next day, which is a report of nationality in
14 relation to succession of states by Mr. Michael of the
15 special rapporteur.
16 Would you agree with me that those set forth what
17 had occurred in your meetings at the ILC? You had a
18 chance to read those documents before they were
19 published as General Assembly documents, and if you
20 thought that there was something wrong with them, you
21 could have changed them or put in a dissenting opinion
22 or something like that, could you not?
23 A. Yes, I did read all these documents. I do not have them
24 with me, of course, but I read them a long time ago, and
25 I must say that the report of the special rapporteur is
1 a document which really has authority, but it does not
2 mean that the texts that we adopted afterwards always
3 reflect the positions which appear in the report. What
4 has much more credibility, much more authority, is the
5 report itself and less the report of the special
6 rapporteur, which is very extensive and which is not in
7 all cases followed by the International Law Commission,
8 but I do agree with you that in these reports there are
9 many more details having to do with the issue that is
10 under review today.
11 Q. Also I want to talk to you about the Venice Commission
12 report. I have got several of them, I am just going to
13 talk about them in general with you right now. I have
14 one dated 10th February and there is one dated 13th to
15 14th September 1996. You were involved in the
16 preparation of those, were you not, Professor?
17 A. Yes.
18 Q. You could have suggested changes or if you thought that
19 they did something absolutely wrong, you could have
20 issued a dissenting opinion, could you not?
21 A. Yes, of course.
22 Q. So those are authoritative also, both as to the facts
23 and to the proposals?
24 A. In principle, yes.
25 Q. Okay. With that said, would you also agree with me that
1 the Appellate Chamber of this Tribunal has the
2 competence and the jurisdiction to interpret and decide
3 what is international law?
4 A. Yes, within the scope of this jurisdiction.
5 Q. Okay. Professor, I will be real frank with you. I was
6 going over your testimony from October 30th, and then
7 I listened to your testimony here today, and frankly,
8 I was a little confused about some things. So I am
9 going to ask you to help me clear some of these things
10 up. Some of them I think you already have.
11 Judge Karibi-Whyte asked this question, it had to
12 do with a war situation and an occupation, and I believe
13 your response to Judge Karibi-Whyte was that an occupier
14 cannot change nationality, that is a matter of
15 international humanitarian law; is that correct?
16 A. Of course. An occupying state which by force is
17 occupying a territory cannot change the nationality.
18 The military occupation cannot change either the
19 sovereignty which falls under the state which is
20 militarily occupied or the status of the person residing
21 on that territory. Therefore military occupation does
22 not change nationality. Greece was occupied by Germany
23 during the Second World War for four years. Greece did
24 not become a German territory, and the Greeks did not
25 change their nationality to become German nationals.
1 Therefore that does not fall within our field of
2 application, and I repeat once again, a military
3 occupation does not change the sovereignty or the
4 sovereignty of the person.
5 Q. Okay. In fact that is The Hague Convention of 1970 that
6 sets out that as international law, is that correct? On
7 the other hand, as part of a war, sovereignty over land
8 can be transferred. One example that comes to mind is
9 Alsace-Lorraine, that has probably changed between
10 France and Germany, what, three times in the last 100
12 A. Yes, that happens, but this goes through peace treaties
13 which settle war questions, which create the peace
14 conditions and regulate the whole issue. The war itself
15 as an event does not change the question, but peace
16 which is agreed upon by the different states who were
17 involved in the war, that can -- the treaty can change
18 the situation and settle things in a different manner.
19 Q. Professor, someone just handed me a note and I am
20 usually pretty good about this and I frankly missed it.
21 If you look around the courtroom, you see two ladies,
22 one over there and one over there, the court reporters.
23 They have to write down everything we say. They cannot
24 write down a nod and you have been nodding. If you
25 would answer yes or no?
1 A. I see. Okay.
2 Q. When you have a change -- Alsace-Lorraine, we will pick
3 on Alsace for a minute. When there is a treaty of peace
4 between France and Germany, the treaty can say these
5 people become citizens of Germany or citizens of
7 A. Absolutely.
8 Q. In that way, a war can change nationalities?
9 A. Through a peace treaty, yes, indeed.
10 Q. Or a victor can just annex the territory, can he not?
11 A. Formerly, in the very beginnings of international law
12 that was accepted, but since then and since the First
13 World War and especially so since the Second World War,
14 force was ruled out altogether, recourse to force is an
15 illegal act and unilateral annexation is something
16 irregular which should trigger security measures by the
17 Security Council of the United Nations.
18 Q. Okay. We can have several ways that sovereignty over
19 people and territory can change. We can have a
20 secession from a state, right? Some portion of a
21 country leaves another country?
22 A. Yes, based on the self-determination law, that is the
23 normal course of things. The self-determination right
24 is exerted by specific states which can become
25 independent based on that law.
1 Q. You can also have states joining together to become one
2 state. In fact, one of the examples that you used in
3 the Venice Commission report is one that I am very
4 familiar with, just because of where I am from, the
5 annexation of the republic of Texas by the United States
6 in 1845. It is one of the specific examples you used.
7 In that case, one nation ceased to exist?
8 A. Yes.
9 Q. So its nationality ceased to exist?
10 A. Yes, it is quite valid. You have a recent case with
11 Germany, of both Germanys that merge into one state.
12 There is an union of states then, but initially there
13 was an international treaty settling all those matters
14 and they became operational later, but indeed the union
15 of states is a very well accepted manner in
16 international law which triggers change in nationality,
17 but that happens in times of peace and not through
18 recourse to illegal force.
19 Q. And another way that you can have a change in
20 sovereignty is a nation essentially explodes and the
21 example I will use of that is the Soviet Union in 1991
22 ceased to exist.
23 A. Yes, there again there was a dissolution treaty, that
24 was signed and the former Soviet Union exploded
25 altogether, but on the basis of a prior treaty which
1 established or which provided for the dissolution and
2 the explosion, as such, of the former Soviet Union.
3 Q. Let us use the Soviet union as an example and talk about
4 international law, about that. We all remember back in
5 December 1991 President Gorbachev making a speech and
6 resigning and essentially at that point the Soviet Union
7 ceased to exist; we can agree on that, can we not, as an
9 A. I would say that the Soviet Union ceased to exist as of
10 the time when the treaty was signed in the capital of
11 Belarus that provided for the dissolution of the Soviet
12 empire. Was that not in 1992? I do not have the dates
13 with me, I did not look into this more specifically, but
14 I know that then we had a treaty that provided for the
15 dissolution of the Soviet Union. From that moment, from
16 the time when the treaty was signed, do we have the
17 dissolution? It is not Gorbachev's speech as such that
18 put an end to the Soviet Union, it is the treaty.
19 I fail to remember the name of the capital, but it is as
20 of that time and through that treaty that it became a
22 Q. In any case, under international law, no matter how much
23 you or I would want to be a citizen of the Soviet Union
24 today, we cannot do that, right, because the Soviet
25 Union no longer exists?
1 A. Of course.
2 Q. So under international law, each of the constituent
3 republics of the former Soviet Union had an obligation
4 to grant citizenship in the Ukraine or Belarus, or
5 wherever, to all habitual residents of that --
6 A. Absolutely.
7 Q. That is to prevent statelessness.
8 A. Indeed.
9 Q. You say that there is a right of choice.
10 A. Yes.
11 Q. That does not mean that if I were a habitual resident of
12 the Ukraine and the Soviet Union ceased to exist,
13 I could say, "I exercise my right of choice, I want to
14 be a citizen of the United Kingdom", does it?
15 A. Of course not.
16 Q. It has to work both ways. The state that you want to be
17 a citizen of has to be willing to accept you as one of
18 its citizens.
19 A. Absolutely. That is obvious.
20 Q. If it does not make provisions to accept you as one of
21 its citizens, effectively you do not have any choice, do
23 A. Indeed, in such a case it is true.
24 Q. You have to either -- even if the accepting state, the
25 state you want to be a citizen of is willing to accept
1 you as a citizen, you have to do some affirmative act to
2 get that citizenship?
3 A. Yes, indeed. True.
4 Q. Until you do that affirmative act, you do not become a
5 citizen of that country?
6 A. Quite.
7 Q. So for instance, and this is just a hypothetical, okay,
8 if I were again a citizen of the Ukraine because I was a
9 habitual resident and I wanted to become a citizen of
10 the Russian Federation and the Russian Federation said,
11 "no, Moran, we do not want you to be a citizen of the
12 Russian Federation", then I would have no choice in the
13 matter, would I?
14 A. Obviously you will not become a citizen of the Russian
15 Federation if the Russian Federation does not allow you
16 to, through its internal legislation.
17 MR. MORAN: Through its internal legislation. So really my
18 choice is between being a citizen of the Ukraine and
19 being a citizen of the Ukraine.
20 JUDGE JAN: What is that choice?
21 MR. MORAN: Being a citizen of the Ukraine and being a
22 citizen of the Ukraine, your Honour. It is no choice at
23 all, is that fair?
24 A. Quite. You are a citizen of the Ukraine.
25 JUDGE KARIBI-WHYTE: You are putting him in a very difficult
1 situation where there is no existing state willing to
2 accept, except there is an opportunity for another
3 state, because all the proposition is that there is no
4 existing state for the Russian Federation now.
5 MR. MORAN: That is correct, your Honour.
6 JUDGE KARIBI-WHYTE: There is no point talking about
7 exercise of choice.
8 MR. MORAN: Presuming that there were a choice, the Russian
9 Federation allows me to become a Russian citizen. Does
10 the Ukraine have any obligation to allow me as an alien,
11 and my descendants, my children and my children's
12 children, to continue living in the Ukraine, or does a
13 nation have the inherent right to decide that
14 non-citizens will not be residents there?
15 A. I think we have mentioned this already. We tackled this
16 a couple of minutes ago, and the practice so far seems
17 to allow, make allowance for this consequence that you
18 have just mentioned. In other words, if you make a
19 choice which runs contrary to the Ukrainian law, then
20 the Ukraine can ask you to leave its territory. But
21 this practice has been regarded as a very strict
22 practice and partially contrary to the human rights.
23 That is the reason why the Venice Commission came up
24 with a recommendation for that practice to be changed
25 and the International Law Commission has not yet dealt
1 with this matter but I hope it is to do so soon.
2 Q. In fact the Venice Commission and the International Law
3 Commission, your drafts and your declarations are
4 saying, "this is how we want to change international law
5 so that it will have these extra safeguards for people",
6 is that not right?
7 A. It is partially right. The Venice Commission endeavours
8 to codify, to state which are the rules and regulations
9 arising from the current practice to determine which are
10 the mandatory rules for states, but when the Commission
11 is going to bring in changes, it states clearly that it
12 would be desirable for states to do this or that in the
13 future, so you have in both texts codifying elements,
14 existing rules, but you also have new proposals aiming
15 at changing existing law for the adoption of new rules,
16 so you have both elements involved in all texts being
17 that from the Venice Commission or that from the
18 International Law Commission, but the Venice Commission,
19 unlike the ILC, states that very clearly when it is
20 something new, you always have in the beginning of a
21 phrase, "it will be desirable to", so you are led to
22 understand that this is a wish or a recommendation that
23 is so stated, whilst in the work of the International
24 Law Commission, you have the same language, so you fail
25 to see at first whether you have to do with a codifying
1 rule or something that is more prospective, more
2 directed towards the future. That is harder to
3 distinguish then.
4 Q. So for instance, and I am picking this not at random at
5 all, in 1947 when there was the peace treaty between
6 Greece and some islands, it involved the Dodecanes,
7 there was a right of option, but according to the Venice
8 Commission, people that exercised the option to maintain
9 Italian citizenship had to leave the territory?
10 A. That is true.
11 Q. That was not a violation of international law by Greece
12 to require that?
13 A. No, it was not.
14 Q. And it would not be today, would it? You want to change
15 that international law, right?
16 A. I cannot state anything like that, but following the
17 Second World War and I quite agree with you, then it was
18 no violation of international law, but 50 years later,
19 as to know whether this decision was in line with
20 international law, that has to be settled by practice.
21 Theory can state all sorts of things, in theory, many
22 people believe that human rights have had a major impact
23 on state succession and there are presently new
24 obligations, but if I say that myself, it will be only
25 very limited in terms of authority, it is an
1 International Court that has to state that but it has
2 not been said yet by an international institution so we
3 remain in the practice following the Second World War.
4 It remains valid, although there may be some
5 reservations about it.
6 Q. Okay. While I am a -- let us go back to our Ukrainian
7 example, okay? While I am a citizen of the Ukraine,
8 presuming I have a right of option, until such time as
9 I exercise that right of option by getting the Russian
10 Federation to grant me citizenship, I owe allegiance to
11 the Ukraine, right?
12 A. Yes, any national has a duty of allegiance to his or her
13 state; in the same fashion, the state has to protect its
14 nationals. Both notions, both concepts are intertwined,
15 the state owes protection and the national owes
17 Q. So if while I was a citizen of the Ukraine before
18 I accepted citizenship or the Russian Federation
19 accepted me as a citizen, if I tried to wage a rebellion
20 in the Ukraine to overthrow the government, I could get
21 in real serious trouble, could I not?
22 A. Yes, indeed.
23 Q. In fact they would call it treason, would they not?
24 High treason?
25 A. It depends on the circumstances, but in principle, yes,
1 then you talk about treason, if somebody acts in such a
2 way, it is a very serious action.
3 Q. A couple of other things and I think we will be done,
4 Professor. I believe when you were talking to
5 Mr. Greaves you said something about you were not sure of
6 the dates of various laws being passed by the Republic
7 of Bosnia-Herzegovina and similar things, is that
8 correct, dates involving that. Would you agree with me
9 that the date on the Official Gazette showing the
10 publication of a law in Bosnia-Herzegovina is probably
11 authoritative, that is probably the day it happened?
12 A. Yes, indeed.
13 Q. Did you know, and if you do not, that is fine, I am just
14 curious whether you do know or not, that in the
15 Socialist Federal Republic of Yugoslavia, citizenship in
16 the federation, in the larger nation of Yugoslavia, was
17 based upon your citizenship in a constituent republic;
18 in other words, you had to be a citizen of one of the
19 constituent republics before you could be a citizen of
20 the SFRY?
21 A. Yes -- no, but I accept that. It seems to be quite
22 logical. I know that there was one nationality under --
23 in the law, there was Yugoslav nationality, that was the
24 only valid nationality within international relations.
25 But internally speaking, within the former Yugoslavia,
1 you did not have nationality, you had citizenship of the
2 various constituent republics at that level, so you had
3 simultaneously the internal citizenship and the sort
4 directed towards the outside, the Yugoslav nationality.
5 All those who were citizens of the constituent republics
6 were necessarily nationals of the former Yugoslavia, had
7 the nationality of that state, so I agree with your
9 Q. The reason I say that is, I am from the United States
10 and in my country it is just the opposite. My
11 citizenship in a state, one of the constituent parts, is
12 based on the fact that I am already a citizen of the
13 United States. So it is the opposite of what we are
14 used to. To be a citizen of Yugoslavia, you first had
15 to be a citizen of one of the republics; would you agree
16 with that?
17 A. That is fine.
18 JUDGE ODIO BENITO: Excuse me. Professor, could you tell me
19 the difference between citizenship and nationality, the
20 difference between both concepts?
21 A. Nationality, it is a concept of international law, that
22 is the nationality of every human being, he or she is a
23 national of his or her state. It is regulated through
24 international law. Citizenship has always a connotation
25 of internal domestic law. There are many states which
1 do not have the notion of citizenship. In Greece, it
2 does not exist, you only have nationals, the
3 nationality. In some states, for example in Yugoslavia,
4 you can have citizenship which is, as it were, an
5 internal nationality, but has no international
6 character, so citizenship is a concept regulated through
7 and by domestic law. That existed in the British
8 empire, in the French republic, with specific
9 consequences. You have to look into internal law to see
10 what is the meaning and the scope of citizenship, so
11 citizenship is dependent on internal law and can vary
12 from state to state, whilst nationality is a notion, a
13 concept of international public law.
14 I never looked into your question, but nationality
15 within the British empire can be different from
16 nationality in other federal states or in the former
17 Yugoslavia. Citizenship is based on internal law. It
18 is used for the needs of a federal state.
19 MR. MORAN: Your Honour, maybe I can put an example to him to
20 help you see what I believe your question is.
21 Professor Economides, would you agree with me that
22 after the passage of the Nuremberg laws in the 1930s,
23 Jews in Germany were nationals of Germany in that they
24 could carry a German passport, but they lacked
25 citizenship; would you agree that would be an example of
1 the difference between nationality and citizenship?
2 A. Yes, that could be an example based on the then German
3 legislation. There were people deprived of the same
4 rights as other nationals. How shall I put it? It was
5 somebody who did not enjoy the fullness of their rights
6 or they were second class citizens, but this has to be
7 seen within the then German legislation. It is not an
8 international phenomenon, it is a purely national
10 I am aware of other examples in which nationals
11 are not placed on the same footing, same equal footing
12 as other nationals. In some states, some have full
13 rights and others may in other states have reduced
14 rights, so the notion of citizenship is then used to
15 account for the existence of reduced rights for specific
16 groups of people, but I mainly focus on this;
17 citizenship has to be read, interpreted within domestic
18 law for it to be understood.
19 Q. Okay. You also mentioned, a bit in passing, the concept
20 of dual nationality. I would just like to suggest to
21 you this, that when someone is a dual national, and
22 I have had clients that have two nationalities, that
23 they owe allegiance to both countries to which they are
25 A. Absolutely.
1 Q. And that in the case of some kind of conflict between
2 those two countries, they could end up essentially on
3 the horns of a real dilemma, could they not?
4 A. And such dilemmas do exist. You then realise whether he
5 is a national of one or the other state, and then you
6 will assess on the basis of his feelings what is the
7 effective nationality.
8 Q. I would ask you if you are familiar with a case which is
9 cited in Oppenheim's called Kowataka versus
10 United States. It is a 1951 case from the Supreme Court
11 of the United States involving a dual Japanese American
12 national. You are not familiar with that?
13 A. Not at all.
14 MR. MORAN: Judge, I answered your question, I hope?
15 JUDGE ODIO BENITO: Yes, thank you.
16 MR. MORAN: Thank you very much. If not I was going to
17 follow up some more.
18 The Nottebohm case. As I understand the holding
19 in the Nottebohm case, what the ICJ held was this -- by
20 the way, when you first testified on October 30th, you
21 said the style of the case was Liechtenstein versus
22 Uruguay. It is Guatemala, is it not?
23 A. Yes.
24 Q. That the holding of the case was that because there were
25 no effective contacts between Mr. Nottebohm and
1 Liechtenstein that Guatemala did not have to treat him
2 like a citizen of Liechtenstein.
3 A. That is right.
4 Q. The court never held, did it, that Liechtenstein had no
5 obligation to treat him like a citizen of Liechtenstein?
6 A. That is right.
7 Q. And in fact the court also never held that Mr. Nottebohm
8 had a duty of loyalty and allegiance to Liechtenstein,
9 did it?
10 A. Yes, that is right, too.
11 MR. MORAN: Your Honour, may I have a second? If I can just
12 flip through my notes, I think we can finish this up.
14 JUDGE KARIBI-WHYTE: We still have about 20 minutes.
15 MR. MORAN: Since I have taken so much overtime in the past,
16 I would love for the chance to give the court back some
18 JUDGE KARIBI-WHYTE: Thank you.
19 MR. MORAN: The Vienna Convention on Nationality, the
20 proposed convention from the Vienna Commission in
21 Strasbourg? In Article 2 it has definitions and it
22 defines nationality, it says:
23 "Nationality means the legal bond between a person
24 and a state and does not indicate the person's ethnic
1 Would you agree with me that that is a fair
2 statement of international law as it exists today?
3 A. That is not the -- oh yes, it was signed in Vienna by
4 the Council of Europe. Yes, indeed, there is such a
5 definition and it is a good definition under
6 international law.
7 Q. That is international law as it existed in 1950 or 1940
8 or 1997; it has been international law and it remains
9 international law, is that fair?
10 A. Yes, it is.
11 MR. MORAN: Your Honour, I will pass the witness.
12 JUDGE KARIBI-WHYTE: Thank you very much. Any other
14 MS. McMURREY: May it please the court, and I will fit into
15 the 15 minutes we have here, I can promise you that.
16 JUDGE KARIBI-WHYTE: Thank you.
17 Cross-examined by MS. McMURREY
18 Q. Good afternoon, Dr. Economides. My name is Cynthia
19 McMurrey, and I represent Esad Landzo here. I only have
20 a couple of things that I wanted to clear up. First of
21 all, you did state that you have never studied the law
22 of Bosnia-Herzegovina, is that true?
23 A. Yes, that is true.
24 Q. We had an expert named Ms. Calic, who came at the first
25 of these proceedings and introduced a lot of official
1 documents to this court into evidence, who was an expert
2 on Yugoslav law. If Ms. Calic had introduced a document
3 showing that the day after they declared independence
4 that Bosnia-Herzegovina adopted a constitution which
5 adopted their own laws on citizenship and nationality,
6 then that law would apply to the persons living in
7 Bosnia-Herzegovina from April 1992, would they not?
8 A. Yes, of course.
9 Q. So if that were the case from April 1992 on, then there
10 would have been no right of option to be offered to
11 these people because the only, as in Mr. Moran's example,
12 the only citizenship nationality they were entitled to
13 was that of Bosnia-Herzegovina at that point, would that
14 be a fair statement?
15 A. No. I do not think that that can be said.
16 Bosnia-Herzegovina had the right immediately after the
17 declaration of independence to adopt laws on its
18 nationality and to designate all those individuals who
19 from that point on would be nationals of the new state.
20 But according to international law, now we are moving
21 from internal to international law, Bosnia-Herzegovina
22 had to question itself as to whether all of these
23 people -- all these people in Bosnia-Herzegovina wanted
24 to have the nationality of Bosnia-Herzegovina and if
25 there were groups of individuals who did not want to, in
1 a very clear and obvious way, that they did not wish
2 that nationality. In that case, Bosnia-Herzegovina,
3 according to international practice, and I would even
4 say international law, would have to give to those
5 people the right to choose a different nationality of
6 another possible successor state or the predecessor
7 state, if that predecessor state continued to exist.
8 That was the approach which complied with international
9 law, and this was an approach which has been conveyed by
10 the two texts that we have been working with here,
11 having to do with this question, the International Law
12 Commission's report and the Venice Commission.
13 Therefore in short, my answer to your question is,
14 yes, the Republic of Bosnia-Herzegovina had the right to
15 designate its citizens, but also had the obligation to
16 examine the possibility of setting up an option right
17 for certain groups of people who did not want to acquire
18 the nationality of Bosnia-Herzegovina. Therefore,
19 according to the second question, as far as I know,
20 although I am not an expert in Bosnia-Herzegovina, I do
21 not think that that was ever really done by
23 So there is here -- at least there is a kind of
24 missing part as regards international law. There are
25 other states that did not do that as well, that is true,
1 and there are states which did not give that option, but
2 certainly I consider as an expert that this attitude
3 does not comply with international law. The option
4 rights in my opinion are obligatory.
5 Q. Professor, one more question: if there is no predecessor
6 state that exists, then there is no duty to offer an
7 option of right, is there, a right of option?
8 A. In that case, the two texts which I have just mentioned
9 state that in cases of dissolution, there must be an
10 option right offered for other successor states, because
11 there might be individuals who live in
12 Bosnia-Herzegovina who are Croatians or who are
13 Slovenians or who might come from Macedonia. There
14 these people must be given a right of option so that
15 they might possibly obtain the nationality of Croatia,
16 for example. This is either for the predecessor state
17 or for other successor states, should the predecessor
18 state have dissolved.
19 Q. This opinion of yours that you just stated is based upon
20 this commission that you have just finished, but it is
21 not law, international law as it stands today, is it?
22 A. I would say that this opinion is based on international
23 practice which goes back for many years, it had been
24 developed by the Venice Commission and the Venice
25 Commission attempted to see what is current
1 international law, what things are today, but the
2 solution has not yet taken the really official form of
3 an international convention which would very
4 specifically state it. We do not have complete
5 certainty, but in my opinion, these are rules of
6 international law which can be challenged, I do agree
7 with you, as long as there is not an international
8 convention which has been -- in which these are clearly
9 stated or that we do not have a decision from the
10 International Court of Justice which would say the same
11 thing, but this is a trend, a very strong trend in
12 international law today which is expressed in these
13 texts, which are the two texts which attempt to make a
14 synthesis of the issue.
15 MS. McMURREY: Thank you very much. I have no further
17 MR. NIEMANN: Your Honours, we just noticed with the
18 transcript, I normally would not raise errors in the
19 transcript, but I think this is an important one. A
20 couple of questions back on page 73/1 of the LiveNote,
21 Professor Economides said, "I would even say
22 international law", and the LiveNote transcript says
23 "I would not even say international law". The word
24 "not" has been inserted.
25 JUDGE KARIBI-WHYTE: Thank you very much. An important
1 addition to what was said. Any other
3 MS. RESIDOVIC: Your Honours, the Defence of Mr. Delalic has
4 no additional questions to Professor Economides, thank
6 JUDGE KARIBI-WHYTE: Any re-examination?
7 Re-examined by MR. NIEMANN
8 Q. Thank you, your Honours.
9 Professor Economides, do you know when the
10 Security Council of the United Nations had accepted that
11 the Socialist Federal Republic of Yugoslavia had ceased
12 to exist as an entity?
13 A. Yes, I believe it was at the end of September of 1992.
14 That was the well known Resolution 777, I remember the
15 number of the resolution.
16 Q. Professor, in relation to some questions asked of you --
17 which arose out of some questions asked of you by
18 Mr. Greaves, does a person who is holding the nationality
19 of the predecessor state continue to hold that
20 nationality up until the time that they may elect to
21 exercise an option to acquire the nationality of the
22 successor state?
23 A. Yes, it is true that a person who has the nationality of
24 the predecessor state continues to have that nationality
25 until the predecessor state has dissolved and until the
1 nationality of the predecessor state has been withdrawn,
2 if the predecessor state withdraws its nationality, or
3 if there is the option for another nationality, if it
4 means that there will be the loss of the previous
5 nationality. I would even state that according to the
6 laws of succession, when the successor state grants its
7 nationality to all the residents as we said, the
8 predecessor state is obliged to withdraw its own
9 nationality and this is provided for in the Venice
10 declaration, Article 12, and in the draft ILC work,
11 paragraph 25.1, which has when the predecessor state
12 withdraws its nationality for those people who were
13 involved in the succession and who fulfil the necessary
14 obligations in order to have the nationality of the
15 predecessor state, that they are the nationals in that
16 state. Therefore, my answer is that there must be a
17 withdrawal of nationality or a dissolution of the state;
18 otherwise the predecessor state nationality continues.
19 Q. Professor, can, and if so in what circumstances, can a
20 presumption of nationality be displaced? I am sorry,
21 that is a poor question, I will rephrase it.
22 Professor, is it possible to rebut a presumption
23 of nationality and if so, how does one go about
24 rebutting this presumption of nationality?
25 MR. MORAN: Your Honour, I will object to that, I think that
1 is outside the scope of anybody's cross. I do not know
2 if that is proper redirect.
3 MR. NIEMANN: It was not in the examination of Mr. Moran, it
4 was in the examination of Mr. Greaves.
5 JUDGE KARIBI-WHYTE: I think he can ask the question.
6 A. I think I have already answered that question this
7 morning, or at least a few minutes ago, when I said that
8 presumption is valid possibly in cases, whether it was
9 done or not, and one can assume that presumption can
10 apply in that case. It is not the presumption itself
11 which gives no right, but the internal law of the
12 successor state. If the successor state does nothing,
13 through presumptional law one cannot consider that all
14 cases are covered and presumption therefore is something
15 which is not etched in stone. We can see the contrary,
16 if the contrary in fact is the reality. Therefore
17 I repeat what I had said, what is important is internal
18 law and not presumption, which is a kind of a guideline
19 given to the government to work quickly, but in and of
20 itself presumption has no effect and cannot take the
21 place of the successor state. Therefore presumption has
22 a relative value.
23 Q. Professor, do you have a view as to when the nationality
24 of the Socialist Federal Republic of Yugoslavia ceased
25 to exist?
1 A. This is actually a difficult question which plays an
2 important role in this case. What I do know is that the
3 nationality of the former Yugoslavia already existed
4 when the Badinter Commission, at the end of 1991, stated
5 that the former Yugoslavia continued to exist and that
6 it still had an international character and standing.
7 Afterwards, there was a certain amount of time that went
8 by, that is all of 1992, and I consider that the
9 critical date was the resolution which you cited from
10 the Security Council, which stated for the first time
11 that the Socialist Federal Republic of Yugoslavia had
12 ceased to exist, but that was after September 1992.
13 According to international traditional laws, there
14 is no rule in international law which states that a
15 state ceases to exist merely because it has lost part of
16 its territory, but the Security Council did not see
17 things that way and it came in at a specific time and
18 declared -- I do not know if it was right from the point
19 of view of international law, nonetheless, its decision
20 is binding in and of itself, so it cannot be
21 challenged. It is a decision which is mandatory and
22 creates obligations for everybody. Therefore in the
23 decision it was said in September 1992 that the
24 Socialist Federal Republic of Yugoslavia had ceased to
25 exist and I believe we must assume that up to that
1 point, the republic existed. That is my personal
3 JUDGE JAN: I would like to ask you a question. I have not
4 seen that resolution, I wish that resolution was before
5 us. Does the resolution merely recognise a fact which
6 has already taken place, or does the ceasing of the
7 state take place by virtue of that resolution?
8 A. One would have to study the decision, but I think it was
9 not retroactive. The decision simply noticed that in
10 September 1992, the Republic no longer existed. If it
11 had been dissolved several days before that, we would
12 have to deduce that from the decision, but the
13 resolutions themselves were not retroactive, and went
14 into effect on the date they were adopted.
15 I consider that at the time the Security Council
16 pointed that out, that the dissolution took effect,
17 because we have no other date which would be relevant.
18 There is no other date, there is even support from
19 Serbia which maintains its international legal existence
20 and, of course, there are other components of the former
21 Yugoslavia which did not accept that, but I say that
22 international law does not forbid a state from
23 continuing to maintain its legal existence on and on
24 forever, but the Security Council came in and said the
25 opposite, and therefore the international community
1 accepted this because there is two possible ways to go,
2 separation and dissolution.
3 You have the two articles in the cases of
4 succession of states, there are two cases, the
5 predecessor state, it continues to exist or disappear,
6 and with regard to Yugoslavia, we found ourselves in a
7 context where separation which existed until September
8 1992, but after September 1992 we must accept that we
9 are not dealing with a case of dissolution. That is my
10 personal opinion.
11 JUDGE KARIBI-WHYTE: You still have anything?
12 MR. NIEMANN: No.
13 MR. MORAN: Excuse me, your Honour. I would ask leave of
14 court to ask a couple of questions of things I think
15 were confusing in the re-examination and I may be able
16 to clear them up both in my own mind and maybe in the
17 court's. I do not know if the court has a problem but
18 I would ask leave of the court to do it.
19 MR. NIEMANN: I object, your Honour. The matters have been
20 sufficiently canvassed in all respects. There is
21 nothing I can see that created any confusion.
22 MR. MORAN: Your Honour, I would suggest that he testified to
23 one thing being the law on both direct cross, and
24 something slightly different as being the law on
25 re-examination, and I would like to clear up that
2 JUDGE KARIBI-WHYTE: We are going to hear it from the
4 MR. MORAN: Yes, your Honour.
5 JUDGE KARIBI-WHYTE: Okay, let us hear it.
6 Further cross-examined by MR. MORAN
7 Q. If I could do it from here, just a couple of questions.
8 Professor, you testified on direct and cross that
9 when there is a separation of state and a new
10 nationality, be it a secession of a state or a state
11 explodes or sovereignty is transferred somehow, that the
12 habitual residents of the area where the sovereignty is
13 transferred immediately get the citizenship of the new
14 sovereign, is that correct?
15 A. Yes, that is correct.
16 Q. So if a -- I will pick an example, if the state of Texas
17 secedes from the United States tomorrow, I become a
18 national of the republic of Texas as opposed to the
19 United States.
20 A. Yes.
21 Q. At that point, I should have a right of option to
22 determine whether or not I want to be a citizen of the
23 United States.
24 A. No, in that case, as a resident --
25 THE INTERPRETER: Can the witness to put his microphone on,
2 A. To go back to your example, if you become a national of
3 the state of Texas, because you are a permanent resident
4 of that state, you also continue to maintain the
5 United States nationality until such point as the
6 United States takes it away. Until that case, you have
7 a dual nationality. You come from Texas but you are
8 also a national of the United States until that question
9 is settled. You have dual nationality.
10 MR. MORAN: And the situation we were talking about with
11 Bosnia-Herzegovina and Yugoslavia, if the nationality of
12 the SFRY continued after Bosnia became an independent
13 state, then people could have a dual nationality,
14 nationalities of both the Republic of Bosnia-Herzegovina
15 and for as long as it existed the Socialist Federal
16 Republic of Yugoslavia; is that --
17 A. Yes, that is right.
18 Q. One last question, the Badinter Commission, we have
19 talked about them, they are arbitrations. If they said
20 on 4th July 1992 that the process of dissolution of the
21 SFRY is now complete and the SFRY no longer exists,
22 would you disagree with that?
23 A. Personally I might agree with that, I have no problem
24 with it, but scientifically speaking, if you want us to
25 settle that issue, I would say that there was the
1 Badinter Commission which was a commission which
2 expressed opinions which might not be accepted. There
3 was nothing binding in the opinions of the Badinter
4 Commission, but I do agree with you that if the Badinter
5 Commission had said that in 1992 very clearly, that was
6 a very strong position.
7 MR. MORAN: Your Honour, I thank the court very much for its
8 indulgence. I have no further questions.
9 JUDGE KARIBI-WHYTE: Thank you very much. Actually the
10 Badinter Commission was a commission set up for some
11 other purpose. It was not giving an opinion as to
12 existence or not of a particular situation.
13 MR. MORAN: I understand that.
14 JUDGE KARIBI-WHYTE: It was not binding at all. Thank you
15 very much, Professor Economides. We are very grateful
16 for your assistance and for all you have been able to do
17 to help us clear up some of the doubts we had before
18 now. Thank you.
19 A. I would also like to thank you and to say that it was an
20 honour to attempt to assist you as much as I could.
21 MR. GREAVES: We had better wish the Professor happy birthday
22 for tomorrow, I think.
23 JUDGE KARIBI-WHYTE: The Trial Chamber will now rise and
24 reassemble at 2.30.
25 (1.10 pm)
1 (Adjourned until 2.30 pm)
1 (2.30 pm)
2 JUDGE KARIBI-WHYTE: Yes, Mr. Niemann.
3 MR. NIEMANN: Thank you, your Honours.
4 JUDGE KARIBI-WHYTE: You have the whole of the afternoon.
5 MR. NIEMANN: Yes, your Honours. Your Honours, I seek now to
6 argue the motion that we filed in the Chamber on
7 20th November 1997 relating to the calling of an
8 additional expert witness relating to handwriting.
9 Depending on the outcome of the motion, and
10 your Honours' decision in the matter, I have been
11 informed that the Slovenian interpreters who will be
12 necessary for the purposes of this witness, should the
13 witness be called and should your Honours decide to
14 permit us to call the witness, will not be able to until
15 tomorrow morning, but we have this motion to argue which
16 we would seek to argue and there are a couple of matters
17 that my colleague Ms McHenry would like to raise in
18 front of your Honours in relation to miscellaneous
19 matters which are still outstanding and require
20 your Honours' attention. I think we can probably
21 usefully use up most of the time this afternoon on those
22 remaining matters and then the issue of the witness can
23 be something we can call tomorrow, depending on
24 your Honours' ruling.
25 Your Honours, the motion, if I may now move on to
1 the motion --
2 JUDGE KARIBI-WHYTE: Yes, you may.
3 MR. NIEMANN: Thank you, your Honours. The motion seeks to
4 call a handwriting expert to give opinion about the
5 handwriting that appears on some of the documents that
6 were seized by the Vienna police from the premises at
7 INDA-BAU and there are other documents which this
8 witness that we seek to call has looked at in connection
9 with an overall examination of documentary material.
10 Your Honours, the Defence have filed a response to
11 this particular motion -- when I say the Defence, the
12 defendant Zejnil Delalic, his counsel have filed a
13 response to the motion and they make a number of
14 points. I think it is probably useful to address those
15 points in my submission as well, so I might move to
16 those firstly.
17 The first point that they make that I would like
18 to deal with relates to them saying that because of the
19 cross-examination of the witness Moerbauer which
20 occurred in June of this year, and further in connection
21 with some comments that fell from your Honour Judge Jan
22 in relation to these issues, that the Defence should
23 have been put on notice of the fact that this would have
24 been a requirement in the case, and that is this calling
25 of an expert handwriting witness would have been a
1 your Honours, I have made submissions to you about the
2 documents themselves and I said there were certain
3 things about them which we said gave them indicia of
4 reliability. It primarily was the fact of where they
5 were seized, the premises, the premises of INDA-BAU.
6 The second point I went to some length to describe
7 was the interrelationship between the documents which
8 I argued gave them enhanced reliability; and the fact
9 that there was independent witness testimony which
10 I drew upon in relation to some of the documents to say,
11 "a witness said this and this is something that now we
12 see in this particular document here". I sought to rely
13 on that, again to enhance the reliability of the
14 document. Finally, the record of interview with the
15 accused, Zejnil Delalic, where certain of the documents,
16 not all of them, but certain of the documents were shown
17 to him. It was on those premises that I presented your
18 Honours with the arguments.
19 We still say they are a strong and solid
20 foundation in order for your Honours to come to the
21 conclusion that not only do these documents relate to
22 the accused Zejnil Delalic, not only does he know about
23 them but your Honours could draw an inference that these
24 are the documents of Zejnil Delalic. At one stage
25 during this process I did say to your Honours that it
1 probably did not matter much who signed it. What
2 I meant when I said that was when, for example, you have
3 a case which is dependent entirely on the actual proof
4 of the handwriting as such, you may have to go that next
5 step and prove that the accused wrote it.
6 I am thinking particularly for example of, say, a
7 forgery case, where you are trying to prove the accused
8 forged the signature of somebody on a document and
9 thereby gain an advantage, it would not be sufficient
10 for the Prosecution to simply present the document, say
11 "we found it at the premises, say it relates to other
12 documents, there are witnesses that speak of it" -- it
13 may not be the case, but a reference to it in the record
14 of interview may not be enough to get you there. You
15 may have to go the next step and prove it, "this was
16 signed by this person"; how do you know that, because a
17 handwriting expert comes along and says so.
18 But your Honours, the issue that really led us to
19 the view that your Honours sought more assistance in
20 this area really arose from the decision that
21 your Honours gave on 6th November 1997 in relation to
22 the Mucic document and in relation to the handwriting.
23 There are two things that ultimately decided the issue
24 for us in terms of calling the expert witness on
25 handwriting. The first was that we saw from that that
1 your Honours were reluctant on the evidence to draw the
2 inference that it was a document that belonged to or
3 came from or was known to the accused Mucic, and we are
4 not questioning the decision at all, it was just that
5 this was the trigger that made us decide what we should
7 The other issue was a matter that we were awaiting
8 upon, and that was the sampling, the providing of the
9 handwriting sample. That may have affected which way we
10 go on the issue too, so both those issues, as it were,
11 led us to a conclusion that your Honours may be assisted
12 by obtaining handwriting expert advice from an expert
13 witness on this matter, and so we then went about the
14 process of endeavouring to find somebody, and unlike
15 what is alleged against us, that we are somehow tardy in
16 the matter, I believe that having regard to the fact
17 that your Honours' decision is dated 67th November 1997,
18 and this week is the first hearing week after that date,
19 we in fact have moved very quickly to get that evidence.
20 So, your Honours, this is the reason why we are
21 proceeding now. We believed, and we still believe, that
22 the foundation that we have submitted is sufficient.
23 However, the decision that your Honours gave on
24 6th November leads us to think that that may not be
25 sufficient at the end of the day, so we have taken this
1 step and we seek leave to call this witness.
2 As we say in our motion, the witness will not be
3 lengthy in evidence-in-chief, I cannot speak for how
4 long cross-examination might take, but I mean it is a
5 narrow topic. It is not a broad topic, and it is not --
6 we have made it clear that the evidence is sought to be
7 called against only one accused, the accused Zejnil
8 Delalic, so if there is to be any cross-examination
9 other than by the counsel for the accused Zejnil
10 Delalic, then one would wonder what the relevance of
11 that cross-examination is. But we would have to deal
12 with that at the time. The point I seek to make is that
13 that being so, I cannot imagine that the
14 cross-examination should necessarily extend beyond one
16 Your Honours, there is a reference in the response
17 by the Defence to the decision of the Chamber in the
18 Tadic case on hearsay. The reference there, counsel for
19 the Defence have referred to the decision of Judge
20 Stephen and particularly they seek to suggest that Judge
21 Stephen, and perhaps it may assist your Honour if I go
22 to the precise point of their argument. They say, and
23 this is on page 5, about halfway down the page:
24 "Furthermore, it is submitted that from the Tadic
25 decision on hearsay, the Prosecution must prove the
1 authenticity of documents as a precursor to
2 demonstrating reliability."
3 Then they go on to say:
4 "In the Tadic decision, the learned Judge Stephen
5 noted at page 4 of his separate opinion that the
6 principles involved applied not only to oral testimony
7 but to other evidence as well."
8 To be precise, His Honour Judge Stephen on page 4
9 of his decision was referring to the fact of the
10 distinction between hearsay testimony and direct oral
11 testimony, and although the proposition that the Defence
12 advance in their motion may as a general principle have
13 some application, I cannot see that they can gain
14 support for that from the Tadic decision, because His
15 Honour Judge Stephen was clearly making a distinction
16 between hearsay testimony and oral testimony.
17 Your Honours, what Judge Stephen did say, and what
18 we say is significant in what he said was that there is
19 nothing in Rule 89 -- nothing in the Rules generally,
20 but nothing in Rules 89(C) and (D) to support the view
21 that relevant testimony should only be admitted before
22 the Chamber if the probative value substantially
23 outweighs its prejudicial effect. His Honour Judge
24 Stephen is saying because evidence may be prejudicial,
25 there is nothing there in the Rules that says, only if
1 it is shown by the Prosecution that the evidence is of
2 such a probative value that it outweighs its prejudicial
3 effect should it be admitted. There is no such
4 proposition that emerges from the Rules. So in our
5 submission, any assertion that that is the case is
7 Your Honours, the other point that the Defence
8 make in their motion is that the Prosecution has this
9 obligation to prove the question of authenticity ab
10 initio, from the beginning. They have also made other
11 assertions about proof beyond reasonable doubt which
12 I have quarrelled with on a number of occasions, but the
13 argument that proof of authenticity is something that
14 must be proved ab initio is, in our submission, not only
15 incorrect but if they seek to draw any support from the
16 Tadic decision on hearsay in relation to that, then in
17 our submission there is nothing in the decision of the
18 Chamber in the Tadic case on hearsay which supports them
19 in that.
20 Indeed, I would argue that the decision goes the
21 other way, and it makes specific reference to the
22 approach which I have mentioned on previous occasions of
23 tendering evidence de bene esse. On page 5,
24 paragraph 10 of the decision in Tadic, their Honours
25 Judge McDonald and Judge Vohrah say, if I may quote the
1 point, I think it is instructive:
2 "Despite these relatively restrictive limits on
3 the admission of hearsay", and her Honour there is
4 referring to the common law practice of there being
5 restrictive limits on the admission of hearsay, she is
6 not speaking -- I am sorry. She is not speaking of this
7 Tribunal. She says:
8 "Judges in non-jury common law cases often take a
9 slightly different approach."
10 Then she quotes with approval from McCormick's on
11 Evidence. She quotes:
12 "While the admissibility of evidence is debatable,
13 the contrasting attitudes of the appellate courts
14 towards errors in receiving and those excluding evidence
15 seem to support the wisdom of the practice adopted by
16 many experienced trial judges in non-jury cases of
17 provisionally admitting debatably admissible evidence if
18 objected to with the announcement that all questions of
19 admissibility will be reserved until the evidence is all
21 I refer to that passage in the decision of Tadic
22 in support, if your Honour pleases, of the proposition
23 that it cannot be said that there is any requirement at
24 all to prove authenticity ab initio and certainly to
25 prove authenticity ab initio beyond a reasonable doubt,
1 because if that was so, then it flies directly in the
2 face of the proposition there supported by her Honour in
3 the Tadic case.
4 I go further than that, your Honours, in this
5 way. I do not say that hearsay of itself could not in
6 any conceivable circumstance not prove an element of the
7 offence beyond reasonable doubt. I do not say that,
8 because it is conceivable that hearsay evidence could
9 well do that. But generally speaking, hearsay evidence
10 is often regarded by the court to be less reliable than
11 direct oral testimony of a particular fact or
12 circumstance which goes to prove a matter beyond
13 reasonable doubt.
14 In my submission, if evidence for it could be
15 admitted before this Chamber had to be proved beyond
16 reasonable doubt then hearsay evidence would never be
17 admissible because of that principle, or never be
18 admissible unless it proved the issue beyond a
19 reasonable doubt. So there would be two issues that
20 would be thrown out as a consequence of that
21 requirement; the first requirement is if it had to be
22 proved beyond a reasonable doubt, any practice of
23 admission of debatable evidence de bene esse would not
24 be available to your Honours; and secondly, it would be
25 likely that large portions of hearsay evidence would not
1 be admissible before this Chamber and neither of those
2 principles, in my respectful submission, apply.
3 So, your Honours, the question of, "we should have
4 known, we should have been aware that we had to prove
5 these documents beyond a reasonable doubt", the issue
6 that we should have expected to do that right at the
7 beginning because of this requirement of proof of
8 authenticity ab initio has no foundation, in our
9 respectful submission, at all, and should not be used
10 against us in any determination of whether we now find
11 it necessary to call a handwriting expert. We find it
12 necessary to do so now because of a ruling which is --
13 that has come from your Honours which we obviously
14 ignore at our peril, and it is because we will not
15 ignore it at our peril that we bring this motion.
16 Your Honours, the other issue that is touched on
17 by the Defence, and why it is relevant I am not entirely
18 sure, but I think I should address it, and that is that
19 they appear to be asserting in their motion that somehow
20 they have suffered some injustice because your Honours
21 have examined the documents and we have discussed their
22 relevance, their reliability in the process of seeking
23 to tender them. I do not understand this argument at
24 all. How it is that your Honours can ever expect to
25 rule upon a document in terms of its admissibility
1 without knowing what the document says and how it
2 relates to other documents and hearing full argument on
3 it I fail to understand.
4 This particular issue arose, if your Honours
5 please, in the decision in the Tadic case on hearsay at
6 page 7, paragraph 17, halfway through that paragraph.
7 Their Honours Judge McDonald and Judge Vohrah said:
8 "Further, the Defence would require that the Trial
9 Chamber rule on the admission of such evidence without
10 actually hearing its content."
11 Slightly different here, this is looking at the
12 document, but it is the same issue:
13 "This procedure, while possibly appropriate if
14 trials before the International Tribunal were conducted
15 before a jury, is not warranted, for trials are
16 conducted by judges who are able, by virtue of their
17 training and experience, to hear the evidence in the
18 context in which it was obtained and accord it
19 appropriate weight. Thereafter they may make a
20 determination as to the relevance and probative value of
21 the evidence."
22 But I go further than that and this decision.
23 This is something that unless your Honours had some
24 extraordinary capacity to divide yourselves in halves
25 you could not do anyway, because in my submission
1 your Honours, even in a jury trial case, the Tribunal of
2 law looks at the material in order to make a
3 determination on admissibility, and then it is given to
4 the Tribunal of fact to deal with and make its
5 determination. In this Tribunal, your Honours are both,
6 and you still need to perform the functions and duties
7 of the Tribunal of law. It is by saying that
8 your Honours should not see the documents and should not
9 permit discussion on the documents as to their
10 admissibility is, in effect, to deny you of the duty
11 that you need to perform as the Tribunal of law. So in
12 my submission, your Honours, that submission, insofar as
13 it is asserted to somehow or other be unfair or
14 otherwise, if it be so, then it be so because
15 your Honours must do so in order to perform the duties
16 that befall you. You are not a jury and a jury alone;
17 you are both Tribunal of fact and Tribunal of law.
18 Another issue that is again raised, the Defence
19 seem to be suggesting, at page 6 of their motion, and
20 I think if I may I will go to the issue for the sake of
21 accuracy, but they say that on this question of proof of
22 authenticity that we need to do ab initio. They say:
23 "If it now transpires that either the documents
24 are those of Zejnil Delalic or that the documents may
25 not be those of Zejnil Delalic, the Prosecution will
1 have had an extensive unfair opportunity to adduce what
2 is said was evidence of guilt, to comment thereon at
3 great length as to why that proves the guilt of Zejnil
5 But what they are saying is that if we call a
6 handwriting expert and that handwriting expert clarifies
7 any areas of uncertainty or doubt that your Honours may
8 have in relation to them, that somehow or other that is
9 unfair. How clarification of an issue could amount to
10 unfairness is, in my submission, your Honours, beyond
11 me. It seems to me that the ultimate objective of what
12 is happening here is the search for the truth. If this
13 process of calling this witness seeks to achieve that
14 objective, then how it could amount to any injustice or
15 unfairness is something that I do not understand. It
16 may well be that the witness does add greater weight to
17 an argument that this is not the writing of Zejnil
18 Delalic. If that is the case and if your Honours were
19 to accept that evidence, surely that must be to his
20 advantage. I think what it is, your Honour, that
21 concerns them is that it may go the other way.
22 Your Honours, one of the concerns that we had
23 about calling the evidence at this stage, not that we
24 wanted to shrink from doing so, but at all stages we
25 have had our eyes firmly fixed on the conclusion of this
1 case, and we are reluctant to do anything to lengthen it
2 any more than necessary; we submit, your Honour, that
3 this evidence is important, we believe this evidence
4 will assist you and having regard to the determination
5 that your Honours have made, we believe this evidence is
6 essential. But if it is put to you that the Defence
7 cannot cross-examine now because they need an expert
8 witness themselves, your Honours, our response to that
9 is this: they do not need any expert at all to tell them
10 who wrote these documents. The source of all the
11 information they need sits right behind them. The
12 accused can tell them that. That is not something that
13 is available to us, but it is something certainly
14 available to them. There is no uncertainty in their
15 mind on that issue. They need no expert evidence in
16 order to determine that question.
17 If they say, "we want to have an expert to come
18 along and contest the expert opinion of the Prosecution
19 on handwriting", by all means, they can have one, they
20 can call one, but in their case. They do not call it in
21 the Prosecution case, so they will have ample time,
22 plenty of time to organise that sort of evidence, to
23 come along and challenge it, if that is what they want
24 to do. In my submission, your Honour, if they have any
25 doubts about their ability to cross-examine an expert
1 witness, and I would indeed be very surprised if
2 experienced counsel had such doubts, but if they did, in
3 our submission, they have had ample time to address the
4 question in terms of how they would go about the process
5 of cross-examination and to read up on whatever it is
6 they may wish to read up on in order to be prepared to
7 conduct the cross-examination.
8 So in my submission, your Honours, there is no
9 factor that arises as to why calling this additional
10 witness would in any way -- should in any way
11 realistically contribute to any delay in the conclusion
12 of the Prosecution case, because, in our submission, if
13 they are not prepared now to proceed to conduct their
14 cross-examination, well, that is because they themselves
15 have failed to take the necessary precautions in order
16 to put themselves in a position so to do, and be it on
17 their own heads if they have chosen to sit back since we
18 informed them of the fact that we were going to call
19 this witness and have done nothing.
20 So, your Honours, in our submission and in
21 conclusion, we submit that the calling of this witness
22 is very important for the Prosecution case. It has
23 arisen directly as a result of a decision of
24 your Honours, which as I say we in no way question, but
25 we respond to, and we submit that it causes no injustice
1 to the accused whatsoever by the fact that the witness
2 is called at this stage and we submit, your Honour, that
3 it is appropriate in the circumstances that we be given
4 leave to call the witness.
5 Excuse me. (Pause). As your Honours please.
6 JUDGE JAN: I want to ask a question. Along with the
7 expert, you will have to examine another witness also
8 who will show that this is the handwriting of Delalic,
9 because the expert has -- another document has to be
10 admitted to be in the hand of Delalic before he gives
11 his opinion on the disputed documents.
12 I will make myself clear. There has to be some
13 writing of Delalic which the expert had before him when
14 he examined the disputed documents. Probably that will
15 require another witness to come into the witness box and
16 say, "this is the document in the handwriting of
18 MR. NIEMANN: No, your Honours, we have a document which we
19 argue is an appropriate control sample document which we
20 have received which we say was received from the accused
21 Delalic and that document -- it is not one of the Vienna
22 documents, it is another document we have received.
23 I think I have two of those documents, two of those
24 documents which we have received which we say are
25 documents of the accused. It is those control samples
1 that have been used to compare with the other
3 JUDGE KARIBI-WHYTE: Mr. Niemann, I am a little worried by
4 the approach you have adopted. My assumption before now
5 was that you have addressed the Trial Chamber on the
6 admissibility of all these documents which you tendered
7 at that time. And also, the Defence addressed, and what
8 we wanted, perhaps what you were expecting was our
9 ruling on the tendering of those documents. Now when
10 I read the motion, I was looking out for the documents
11 which you think might have been disputed as to the
12 handwriting, and I did not see any, any such documents
13 indicated in the motion itself.
14 MR. NIEMANN: It is true, your Honour, that we did not set
15 them out in the motion. We certainly can make them
16 available to your Honour.
17 JUDGE KARIBI-WHYTE: That is a different matter. So if you
18 are seeking leave to reopen, which it appears you are
19 now doing, to reopen the arguments which you had already
20 closed, then you have to show good cause why it should
21 be, and merely anticipating from a decision already
22 given that perhaps that might have applied to you also,
23 perhaps to me, I do not know what others think, it is
24 not really showing good cause.
25 MR. NIEMANN: Your Honours, firstly I am not seeking to
1 reopen, I have made my submission on the admissibility
2 of the documents. I would be surprised that having
3 regard to the criteria -- I may well be surprised.
4 I would be surprised that having regard to the criteria
5 I have set down that your Honours would not admit the
6 documents. In my submission, I have done all I can do
7 in relation to that, but it is what your Honour said in
8 the Mucic documents that gave us concern when you said
9 that the Mucic document, although admissible, to which
10 evidence of its existence has been laid before the Trial
11 Chamber, that is a letter being relevant to these
12 proceedings, exhibiting probative value, written to the
13 Witness B by an unknown third person. It is the unknown
14 third person that gave us matters of concern. We could
15 not pre-empt what your Honours would have to say on
16 that --
17 JUDGE KARIBI-WHYTE: The problem, as I said, is where
18 exactly does this new expert evidence you want to call
19 lie, if after you have addressed in relation to these
20 other documents, it should not be related to what
21 already you have done. It should be something new,
22 except you reopen your arguments.
23 MR. NIEMANN: Your Honours, the evidence is sought to be
24 called, not a question of admissibility at all, which
25 was my arguments went to admissibility, it is how you
1 will treat the evidence once admitted.
2 JUDGE KARIBI-WHYTE: You are reopening the whole issue of
3 the tendering of those documents. Whatever the expert
4 witness will be doing, it will be related to documents
5 which you have already tendered.
6 MR. NIEMANN: Yes.
7 JUDGE KARIBI-WHYTE: How do you do it?
8 MR. NIEMANN: Because, your Honours, it is a two stage
9 process. The first stage is admissibility the next
10 stage is --
11 JUDGE KARIBI-WHYTE: We have passed all that in respect of
12 those documents.
13 MR. NIEMANN: But not the stage to which your Honours have to
14 attach weight.
15 JUDGE KARIBI-WHYTE: I do not know. I leave the arguments
16 to you. As far as I am concerned, you should not reopen
17 it at this stage.
18 MR. NIEMANN: Your Honours, when it comes to evidence,
19 I would submit --
20 JUDGE KARIBI-WHYTE: Except with good cause. If you can
21 give good cause why it should be reopened, I will
23 MR. NIEMANN: If I may, your Honour. I submit firstly that
24 it is not a case of reopening, we have not closed the
25 Prosecution case. The Prosecution case is still open.
1 JUDGE KARIBI-WHYTE: You have closed argument on those
3 MR. NIEMANN: The Prosecution's case is open and alive until
4 the Prosecution closes. Then if it seeks to reopen,
5 yes, it has a burden, it has a considerable burden, it
6 has a considerable hurdle to overcome. We have not
7 reached that stage. The question of how your Honours
8 treat the documents that had been admitted is still a
9 live issue. It is not an issue that is in some way res
10 judicata or been decided upon.
11 JUDGE KARIBI-WHYTE: In that event, show good cause why we
12 should return to all the arguments and hear the expert
14 MR. NIEMANN: The good cause is that notwithstanding the fact
15 that the Mucic letter which falls into a similar
16 category was found with a person who we argue is
17 related -- who was known to the accused Mucic, it falls
18 into a similar category, not as strong but a similar
19 category if it was seized at the premises; that there
20 could be demonstrated by that an interrelationship
21 between that document and other testimony, and we submit
22 that notwithstanding that, your Honours have said that
23 that document does not prove in any way, as your Honours
24 say, it does not prove that it was written by the
25 accused Mucic. That has fallen from your Honours, we
1 respect that, we accept that, but now your Honours have
2 said it, we reasonably anticipate that you will do the
3 same thing with these documents that were received --
4 which were seized by the Austrian police. We are
5 endeavouring to call further evidence so that
6 your Honours do not come to a similar conclusion, the
7 similar conclusion being that the Prosecution has proved
8 that these documents were recovered from a certain
9 premises, that they contain certain relevant evidence,
10 that they are admitted but the Prosecution has failed to
11 show any connection whatsoever to the accused Delalic.
12 Clearly the Prosecution wants to prove that.
13 If your Honours are going to determine that there
14 is no connection and it has not been proved in any way
15 that there is a connection between the Vienna documents,
16 the documents seized in Vienna and the accused, then it
17 is necessary for us to call evidence in order to
18 endeavour to persuade your Honours that that is the
19 case. If your Honours decide, "no, we accept these are
20 documents of the accused Mucic, there is no issue", yes,
21 I agree with you, there is no need to call the expert
23 JUDGE KARIBI-WHYTE: You remember I said when I read your
24 motion, I did not see any document which has been so
25 identified as being exposed for such an examination.
1 There was none. You did not tell me, "exhibit this,
2 this and this are those subject matters for such
3 examination". Just a blanket application.
4 MR. NIEMANN: I will seek leave to amend my application if
5 that is a problem for your Honour.
6 JUDGE KARIBI-WHYTE: I do not know. You would have put the
7 Defence on notice about what they were coming to hear.
8 They do not know what they are coming to hear. At least
9 today they do not know what it is.
10 MR. NIEMANN: Well, I respectfully, your Honours, I do not
11 think that is so, because --
12 JUDGE KARIBI-WHYTE: The motion is before you, so it is not
13 a question of -- let it speak for itself.
14 MR. NIEMANN: In their motion, they specifically refer to the
15 fact that the Prosecution has been given some sort of an
16 unfair advantage by being able to go through the
17 documents at length and comment on a large number of
18 them, "unauthenticated documents which it claims are
19 clear evidence of guilt". There is no doubt in my mind,
20 your Honours, that the Defence know exactly the
21 documents we are talking about, the documents that were
22 recovered by the police at Vienna.
23 JUDGE KARIBI-WHYTE: I am merely drawing your attention to
24 possible objections so when you argue it, you know what
25 perhaps is in my mind.
1 MR. NIEMANN: Your Honours, and there is another matter, that
2 we wrote them a letter. We wrote them a very long
3 letter which set out precisely the documents that we
4 were referring to, and precisely the results of the
5 expert witness in relation to those documents.
6 JUDGE KARIBI-WHYTE: That is a letter to the Defence, I do
7 not know. I was merely referring to your motion. I saw
8 nothing on the face of it.
9 MR. NIEMANN: I did not think it would be appropriate to
10 pre-empt or --
11 JUDGE KARIBI-WHYTE: To indicate in the motion the subject
12 matter of the issue.
13 MR. NIEMANN: I did not think it would be appropriate your
14 Honour to tell you the results of the examination,
15 because I think that that --
16 JUDGE KARIBI-WHYTE: Thank you very much.
17 MR. NIEMANN: It would be inappropriate for us to do that,
18 but there is no doubt the Defence know the documents we
19 are talking about. It has been set out in a letter in
21 JUDGE JAN: Mr. Niemann, Delalic was examined at length by
22 the OTP office while he was here in The Hague and he was
23 shown many documents. Were these documents shown to him
24 which now you want to get the handwriting expert's
25 opinion on?
1 MR. NIEMANN: Some of those documents.
2 JUDGE JAN: What was his position at that time with
3 reference to those documents?
4 MR. NIEMANN: Would your Honour excuse me a moment?
5 (Pause). As far as I understand, your Honour, there is
6 not -- of the documents that we are seeking to prove
7 that were seized in Vienna, the handwriting ones were
8 not shown to him, but one of the sample documents that
9 we rely on is a letter that we received from him in the
10 course of these proceedings in relation --
11 JUDGE JAN: I just wanted to find out what was the
12 position -- you did not show him these documents in the
13 lengthy interviews you had with Delalic, accused?
14 MR. NIEMANN: Not the hand-written ones.
15 JUDGE JAN: Why not these?
16 MR. NIEMANN: I was not present, your Honour, I do not know
17 the answer to that. I would hasten to add that it
18 should not be a game of chance. If we missed our chance
19 then --
20 JUDGE JAN: It is not a question of a game of chance. You
21 knew your case.
22 MR. NIEMANN: It is a game of chance, with respect, your
23 Honour, if there is evidence that is admissible and
24 probative and goes to the proof of the point and we are
25 precluded from calling evidence to prove that. It
1 becomes a game of chance.
2 JUDGE JAN: It is a case of omission, not a game of chance
3 which you want to fill at this stage.
4 MR. NIEMANN: Your Honours, I do not know I can take it much
5 further. All I can say is I laid the basis upon which
6 I believe this evidence would have been admitted and
7 accepted and it should have been accepted as evidence
8 against the accused. I do not believe that having
9 regard to your Honours' decision in the Mucic document
10 that if your Honours take a similar approach with these
11 documents, you will come to that conclusion.
12 JUDGE KARIBI-WHYTE: It is good anticipation, but perhaps it
13 might not necessarily follow.
14 MR. NIEMANN: I could wait until we receive your Honours'
15 decision, but if I do that, then I may still be forced
16 into making this application then. It is in
17 anticipation of what your Honours are going to do, and
18 I do not have your Honours' decision, so I do not know.
19 JUDGE KARIBI-WHYTE: The position which I have taken, if
20 perhaps we had made a ruling at that time, you would not
21 have had this opportunity now, admitting or rejecting
22 the document at the time you closed your submissions.
23 MR. NIEMANN: As I have said, your Honour, it goes to
24 weight. If it is a question of admissibility -- I do
25 not know whether they are going to be admitted, I do not
1 know what weight is going to be attached. I suspect
2 they may be admitted. Having regard to the decision in
3 Mucic, I suspect they will be given little weight.
4 JUDGE KARIBI-WHYTE: It is always like that. You will never
5 be sure what will happen until a decision is made.
6 JUDGE JAN: A game of chance.
7 MR. NIEMANN: In my respectful submission it should not be.
8 It would not be a game of chance for the Defence. If
9 they had done something which was not in a timely
10 fashion and they came along to you and said, "we must
11 call this evidence before you, it is so important we do
12 so", then it would be extraordinary for your Honours not
13 to do it. Indeed, I would go further; if it was an
14 appeal and they left something out at trial because they
15 did not know about it or did not pursue, they may have
16 an opportunity --
17 JUDGE KARIBI-WHYTE: In the Mucic case, he was specifically
18 alleged to have written something. The burden remains
19 on you to prove that he did. In this particular case,
20 there are several circumstances which you have taken
21 into account in determining whether it was Delalic who
22 wrote it. You have not directly accused him of writing
23 any letter.
24 MR. NIEMANN: But we have said it is the documents that he
25 was aware of.
1 JUDGE KARIBI-WHYTE: You fear it could have been written by
2 him because it was discovered in that premises among
3 things which were about him and the matter concerned
4 him. There are so many arguments which you could put
5 forward, but not a direct allegation. So it is not
6 exactly the same, the considerations are not the same.
7 But I am not going into the merits, this is what I am
8 trying to say. I am only giving the foundation for
9 bringing the motion at all, because if you have not
10 prepared a real ground for bringing the motion, and
11 there is nothing on the face of the motion to see
12 exactly what we are to argue here, other than a general
13 allegation, that is a little difficult for one to -- and
14 I was surprised that the Defence was even arguing on the
15 merits, because I did not see what merits they were
16 arguing about, because they were not directed to any
17 particular thing on the face of the motion.
18 MR. NIEMANN: The reason I was responding to what they said,
19 we did not put that as part of our motion. It was my
20 response to it and I believed I responded.
21 Your Honours, the whole point of the Tadic case is that
22 evidence can be admitted and it can be admitted de bene
23 esse and decisions about not only admissibility but
24 about weight are matters that can be left to a later
25 stage in the proceedings. That is clearly the Tadic
1 decision, no question about that, in our submission. It
2 is an approach which we urge upon your Honours. What we
3 submit, your Honours, is that if this material is
4 admitted and the Mucic letter is one document, and
5 your Honours make a particular finding which alerts us
6 to a particular approach that you may be taking in
7 relation to documentary evidence, it is not a question
8 of forgetting to ask the accused about it at all.
9 I mean I have been in numerous cases where documents,
10 objects have been located on premises and they have been
11 tendered in the course of the proceedings. It has not
12 been something that I have had to prove, that the
13 accused created it, a set of scales in a drug
14 addict-type case is regularly admitted in proceedings.
15 We are saying that the fact that they were discovered on
16 the premises is the evidence necessary to show the
18 We are concerned that your Honours are not going
19 to come to that conclusion. If your Honours are, then
20 that is a different matter, I do not need to call the
21 evidence, if your Honours are satisfied that the accused
22 Delalic either wrote the documents or was aware of its
23 contents. The point is we did not need to prove that he
24 wrote them himself. What we need to prove was that he
25 was aware of them and that they were his documents. One
1 way of proving that is if he writes them.
2 JUDGE KARIBI-WHYTE: Thank you very much.
3 MR. NIEMANN: I am prepared to make a copy of the letter that
4 I sent to the Defence available to your Honours, but as
5 I say, it has the conclusions of the expert in it and
6 I was reluctant to give them to your Honours before this
7 matter was litigated.
8 JUDGE KARIBI-WHYTE: Have you any replies from the Defence?
9 MR. O'SULLIVAN: Your Honours, I rise to oppose the
10 Prosecution motion seeking leave to call an additional
11 expert in handwriting. You have seen our response and
12 in that response, we set out two bases opposing this
13 Prosecution application. I wish to emphasise that we
14 strongly oppose the request for leave to call this
15 witness, but we felt it necessary to add a second basis
16 that if, in the event you should grant the request to
17 call this witness, we submit that the timetable proposed
18 in the Prosecution application is unjust and unfair.
19 Allow me first to address you on the first point,
20 our opposition to the request to call this witness, and
21 let me begin by reminding your Honours of your January
22 25th 1997 order, an order to provide notice of expert
23 witnesses. As your Honours know, this order sets out
24 requirements that both the Prosecution and the Defence
25 must meet in providing reciprocal notice of their
1 experts. Paragraph 1 talks about timely notice to the
2 other side and I wish to emphasise the requirement of
3 timely notice.
4 Of particular importance to us, however, is
5 sub-paragraph 4 of paragraph 2, which is quite short and
6 succinct, and with your indulgence I shall read it.
7 Before I do that, I will say that this is the
8 paragraph in your order which talks about late notice
9 and justification for late notice of calling extra
10 witnesses. Sub-paragraph 4 reads as follows:
11 "For good cause shown, the Trial Chamber will
12 allow testimony of expert witnesses where notice of such
13 expert testimony is given after the required date. The
14 party offering such expert testimony shall provide the
15 notice required in paragraph 1 above and the
16 justification for the late notice."
17 It is clear that the party which seeks to call an
18 expert witness after the prescribed pre-trial dates of
19 your order must demonstrate both good cause and
20 justification, and already we have heard your Honour's
21 reaction to those two points, good cause and
23 I should like to argue that the Prosecution has
24 neither shown good cause nor justification for
25 attempting to seek leave to call this handwriting
1 expert. Can I ask your Honours to consider the
2 Prosecutor's motion? At page 2 of its motion, the
3 Prosecution contends that it wishes to call this expert
4 in order to assist the Trial Chamber to draw evidentiary
6 Your Honours, on page 3 of the motion the
7 Prosecution asserts that its request is justified
8 because your Honours are reluctant to draw probative
9 inferences, because you have declined to draw probative
10 inferences and because you may have difficulty drawing
11 inferences from the evidence. I will not comment on
12 these assertions made by the Prosecution, other than to
13 say that in my respectful submission they do not
14 constitute a showing of good cause or justification to
15 call this witness, or for that matter to reopen this
17 Furthermore, on page 3 of its motion, the
18 Prosecution claims that its assertion about drawing
19 probative inferences from the evidence is based on
20 recent remarks by members of this Trial Chamber. As
21 indicated by our response, this claim is quite incorrect
22 in relation to proving documents by way of handwriting
23 analysis. In this Chamber, as early as 2nd April,
24 during the testimony of Stevan Gligorevic, the Defence
25 of Mr. Delalic requested that Mr. Gligorevic provide a
1 sample signature for analysis when he claimed that a
2 signature on a document was not his. Of course,
3 your Honours, more specifically, and on point to the
4 matter today, we have the transcript of 10th June 1997,
5 portions of which are reproduced in our response.
6 Your Honours have gone through that and have read it and
7 I will not dwell on it but it is clear both from the
8 cross-examination of Officer Moerbauer by
9 Madam Residovic and the comments of Judge Jan to
10 Mr. Turone that the Prosecution was alerted to the issue
11 of proving documents strictly by handwriting analysis.
12 Your Honours, we respectfully submit that the
13 timing of this motion shows that the Prosecution has
14 been dilatory in the extreme in dealing with this
15 issue. The Prosecution has had six months since June in
16 which to obtain such evidence. Their failure to seek to
17 adduce this evidence in a timely fashion is clearly
18 contrary to both the letter and the spirit of your
20 It is respectfully submitted that the Prosecution
21 cannot say, as they say in their motion, that this issue
22 has only recently arisen. Aside from the foregoing, the
23 Prosecution is well aware of the rules of evidence and
24 the decisions of this court, and I am thinking
25 specifically of Rule 89 and Tadic, which have been
1 argued many times before you and I will not repeat what
2 has already been said, but your Honours again, for the
3 Prosecution to say with the knowledge that they have
4 been alerted by your Honours, being aware of the rules
5 and the case law, there is no good cause shown and no
6 justification for this late attempt at calling this
7 witness. As has already been stated in the exchange
8 between your Honours and Mr. Niemann, we went through
9 submissions, full submissions by both sides, the
10 Prosecution and the Defence in our last sitting in late
11 October/early November. Full submissions were made by
12 both sides as to the admissibility of these questioned
14 These submissions, I hasten to add, again were
15 made with the full knowledge of the Prosecution of
16 comments from the bench in June, what the rules of this
17 Tribunal are and what the case law of this Tribunal also
18 holds as precursors to proving evidence. For these
19 reasons, your Honours, it is submitted that granting
20 leave to call Ms Stegnar should be denied. The
21 Prosecution has not shown good cause or provided
22 justification. The record of the trial demonstrates
23 that no good cause or justification exists and in his
24 oral submissions, Mr. Niemann has provided none either.
25 We say that the calling of this witness would deny
1 Mr. Delalic, for these reasons, the right to a fair
3 If I can briefly address you on the second issue
4 we raise in our response, which is that if in the event
5 your Honours grant the request to call the witness, we
6 submit that the timetable proposed by the Prosecution is
7 unjust and unfair. The Prosecution has indicated they
8 wish to call their expert this week. I have made
9 submissions on the effect of the untimely nature of this
10 request, but all those matters as well apply to the
11 proposed timetable. I should like first of all to draw
12 your attention to three documents which are connected
13 with this matter and that is the letter my friend
14 referred to of November 18th, their motion of November
15 20th and an expert report which we received last Friday,
16 28th November.
17 Let me begin by pointing out, your Honours, that
18 the report by their handwriting expert is dated November
19 26th, and in spite of that, it was received by the
20 Defence at 3.45 last Friday afternoon, the 28th.
21 Contrary to the assertions contained in the Prosecution
22 motion, for all intents and purposes, this is the first
23 time we have seen the content of what this witness's
24 testimony may be; that is late last Friday afternoon.
25 The Prosecution had claimed that we had received the
1 content in the letter of 18th November, but in my
2 respectful submission that is quite incorrect. All the
3 letter of the 18th states is that their witness has made
4 a preliminary assessment of some, not all documents and
5 that her report would be given to us by last Friday at
6 the latest.
7 Furthermore, and contrary to what the Prosecution
8 has claimed, we have not had two weeks to prepare a
9 cross-examination of this witness. Again, I repeat that
10 only last Friday did we receive their expert's report.
11 We did manage to contact an expert, but like any busy
12 professional who is competent, it is not easy for a
13 person on such short notice to be free to be here to
14 conduct a proper response and an analysis of documents
15 and to contemplate what the Prosecution expert has
16 said. This is important if we are to prepare a
17 cross-examination on a technical expertise, one which is
18 beyond the normal scope of counsel. We need assistance
19 if in fact this woman is to testify.
20 Further, your Honours, pursuant to Rule 90 of our
21 Rules, the Defence would like to have its expert present
22 during the testimony of the expert witness for the
23 Prosecution, if she should testify. As your Honours
24 know, Rule 90 deals with testimony of witnesses, and the
25 relevant portion of that rule for this matter is the
1 first sentence, which reads as follows:
2 "A witness, other than an expert who has not yet
3 testified, shall not be present when the testimony of
4 another witness is given."
5 Clearly, your Honours, this rule contemplates the
6 presence of one party's expert during the testimony of
7 the other party's expert, an interpretation which is
8 clearly gleaned from the language of Rule 90 and also
9 from your decision of 20th March 1997 on the question of
10 allowing investigators to follow proceedings. The point
11 here, your Honours, is that should you allow the
12 Prosecution expert to testify -- the point, your Honour,
13 is, should you allow the Prosecution witness to testify,
14 we would like our expert to be present during her
15 testimony, but again, because of the timing of this
16 Prosecution application, because of the late receipt of
17 their report, it is impossible for our expert to be free
18 to be here this week because of previous professional
19 and personal obligations.
20 Finally, in regard to cross-examination generally,
21 it is in my respectful submission inappropriate for the
22 Prosecution to think that they can determine on behalf
23 of the Defence whether a witness should be classified
24 broadly or narrowly, in detail or in general, as they
25 have done in their motion. The Prosecution has
1 attempted to call this expert at the eleventh hour in
2 this case and then seeks to rush the Defence. I hasten
3 to add that during the nine months that the Prosecution
4 has been presenting its case, they appeared to be in no
5 hurry and no pressure was exerted on them to hurry. We
6 submit that this arrogation to themselves about the
7 manner in which Defence should cross-examine again is
8 ample example of the indifference of the defendant's
9 right in this matter. We respectfully submit that
10 should your Honours grant leave to call the
11 Prosecution's expert, the proposed timetable is unfair
12 and hopelessly unrealistic.
13 To conclude, your Honours, I should like to add
14 the following observations in relation to this matter
15 and I make them generally in support of my preceding
16 submissions and I shall be brief. It seems that there
17 is a certain flavour to this motion by the Prosecution
18 which is troubling both in tone and content. In its
19 motion, the Prosecution attempts to underpin its request
20 by making certain comments on the nature of this
21 exercise. They appear to describe this trial as a truth
22 seeking process. With all due respect, might I point
23 out that the Prosecution seems to have forgotten that we
24 are involved in a criminal Prosecution. It is therefore
25 for the Prosecution to prove their case against the
1 accused who throughout the process must benefit from the
2 presumption of innocence and against whom the standard
3 of proof throughout the case is, in my respectful
4 submission, beyond reasonable doubt.
5 The burden of reasonable doubt has been confirmed
6 by this Chamber in its decision excluding the Mucic
7 statement made to the Viennese police. Your Honours
8 have responded to a clarification request by Delalic by
9 saying that the Prosecution must prove all elements of
10 its case. In relation to the Viennese documents the
11 Prosecution has recognised and admitted that they have
12 been put to strict proof. The Prosecution also seems
13 bothered, your Honours, by rules of evidence which it
14 qualifies as highly restrictive evidentiary standards
15 which would vitiate the spirit of the Statute of this
16 Tribunal. That is the language they use in their
17 motion. Here, your Honours, the Prosecution is
18 effectively saying that the principles for admissibility
19 of documents which we say are predicated by the Tadic
20 decision on hearsay are highly restrictive evidentiary
21 standards, when in fact they are no more than the common
22 sense set of principles which put flesh on the bones of
23 Rule 89.
24 It will not have escaped your Honours' notice that
25 the Prosecution seems to habitually either ignore or
1 attempt to evade the Rules and decisions of this
2 Tribunal. This instance is just another striking
3 example of that tendency, in my submission. We note
4 moreover that in its motion, the Prosecution sets much
5 store in, and I quote, "the spirit of the Statute of the
6 Tribunal, as well as the legitimate expectations of the
7 victims of the conflict in the former Yugoslavia and the
8 international community."
9 We respectfully submit that it might be
10 appropriate to recall some aspects of the Statute in
11 order to properly assess the spirit of the Statute.
12 Again, this is a criminal Tribunal, whose primary
13 objective must be to do justice to the accused. We
14 submit that Articles 20 and 21 of the Statute are the
15 two provisions which best define the spirit of our
16 Statute, in particular Articles 20(1), 21(2), 21(3) and
17 21(4)(b). In our respectful submission, these articles
18 should be read in this regard in conjunction with three
19 Rules, 87, 89 and 95.
20 Your Honours, the spirit of the Statute, as it
21 concerns these matters, lays stress on the granting of a
22 fair trial to the defendant, in accordance with the
23 Rules, and his right to be given a proper time to
24 prepare his Defence. As I pointed out a moment ago,
25 what the Prosecution is prompted to describe as highly
1 restrictive evidentiary standards are no more than the
2 common sense principles of the Tadic decision. Those
3 principles are, in our submission, a fine example of how
4 this honourable Tribunal seeks to implement the spirit
5 of the Statute on guaranteeing fair trial provisions.
6 Your Honours, let us not forget that while we
7 accept entirely that part of the process of this trial
8 which involves constant consideration of the interests
9 of the many victims of serious violence in the former
10 Yugoslavia, we respectfully point out that there is
11 nothing in the Statute or the Rules that suggests that
12 either the spirit or the letter of those provisions is
13 to allow those interests in any way to override those
14 set out in Articles 20 and 21 of the Statute. As for
15 the legitimate expectations of the international
16 community, we submit that the Statute itself is a
17 written embodiment of what those expectations are, it
18 having been agreed to by the UN, and namely those are
19 that the accused person will get a fair trial. If the
20 Prosecution asserts that those expectations are
21 different, we would invite them to spell out
22 unambiguously what those expectations are.
23 In summary, therefore, we say the Prosecution has
24 failed to make this application in good time, has not
25 shown good cause or justification for calling this
1 witness or reopening this issue. In the alternative, if
2 granted, this honourable Tribunal should not accede to
3 the proposed timetable of the Prosecution, because that
4 timetable would act unjustly upon the rights and
5 interests of the accused. Those are my submissions on
6 this matter.
7 JUDGE KARIBI-WHYTE: Thank you very much. Any reply?
8 MR. NIEMANN: Thank you, your Honour. Firstly, your Honour,
9 I find it extraordinarily upsetting that counsel chooses
10 to make suggestions like, "the Prosecution is evading or
11 ignoring decisions and Rules of this Tribunal". It is a
12 most regrettable approach that counsel seems to take,
13 and why they feel it necessary to do so is beyond me,
14 but I call upon them to give us yet one example of where
15 that is the case.
16 But to deal with the matters raised other than
17 that, there is no arrogation by the Prosecution of
18 limitation of the cross-examination of a witness. It is
19 a matter for your Honours to determine how long someone
20 will be cross-examined for. The point is that the
21 Defence would have you believe that in order for them to
22 have a fair trial, they are to have unlimited,
23 unrestricted cross-examination which will go on for as
24 long as they deem appropriate, all in the name of a fair
25 trial. This, in my submission, clearly demonstrates a
1 misunderstanding on their part of what a fair trial is.
2 A fair trial is the division between one party and the
3 other of the rights and benefits of presenting a case,
4 and that the Defence should not be disadvantaged in any
5 way where the Prosecution is not disadvantaged, but it
6 is a two way street, and it is not something that is in
7 the exclusive domain of the Defence. The giving of a
8 fair trial is a balancing act. They forget one side of
9 the scales.
10 Your Honours, with respect to having their expert
11 present, they have a transcript, the transcript can be
12 examined, they have a report, that report can be
13 examined. It is not beyond the wit of a competent
14 expert to have regard to that and respond to it, so if
15 for whatever reason their expert could not be here
16 today, and we have not heard of reasons why the expert
17 cannot be here today, other than just could not make it
18 because of other commitments, but it seems to me,
19 your Honours, that the presence of the expert is not
20 necessary for that purpose, in any event.
21 Your Honours, counsel seems to dispute that this
22 is a truth seeking process. If it is not a truth
23 seeking process, then I do not know what it is, because
24 in my submission, your Honours, it is only by a search
25 for the truth that a true determination can be made as
1 to the guilt or innocence of the accused.
2 Your Honours, we have a copy of the letter here
3 that we gave to the Defence, because they place such
4 emphasis on the fact that they only have got the report
5 on Friday. We told them in the letter that we would
6 have the report for them by Friday, but it was on
7 18th November that we gave them substantial detail on
8 this matter and I hand it to your Honours. I only have
9 one copy, I am afraid, your Honours. (Handed).
10 In our submission, your Honours, this application
11 is fairly and properly based, having regard to the
12 decision that your Honours made in relation to the Mucic
13 document --
14 MR. O'SULLIVAN: Your Honours, I must object to this letter
15 between counsel being handed to the bench. I do not see
16 this as an appropriate path for counsel to follow at
18 JUDGE KARIBI-WHYTE: Is the letter sent to you?
19 MR. O'SULLIVAN: Yes.
20 JUDGE KARIBI-WHYTE: What is your objection, if it was sent
21 to you?
22 MR. O'SULLIVAN: Your Honour should not be seeing the content
23 of the letter. My friend is saying it contains
24 information on the expert's views.
25 JUDGE KARIBI-WHYTE: I do not see the basis for your
1 objection. If the letter was sent to you and it is
2 being shown to the Trial Chamber, I do not see why you
3 should not want the Trial Chamber to see the letter.
4 MR. O'SULLIVAN: I do not see for what reason he would want
5 to show it to you.
6 MR. NIEMANN: Your Honour, if I may respond, he was the one
7 that raised it and he was the one that said it did not
8 provide them with sufficient information and tried to
9 argue that it was only the report that they received on
10 Friday. If he raises it then so be it, but your Honour,
11 we are entitled to respond and to demonstrate to you
12 that we gave them ample notice of what they could expect
13 to find from this expert witness in plenty of time for
14 them to prepare. He knew, and I said when I made my
15 submissions, that we deliberately did not give you this
16 letter because it contained the preliminary
17 conclusions. We believed it would be unfair. If he
18 then gets up and makes submissions about the fact that
19 we have not given them sufficient notice of things,
20 then, your Honours, this is what they must expect in
22 MR. O'SULLIVAN: With all due respect, your Honour --
23 MR. NIEMANN: That was after they said that we evade
24 decisions of the Tribunal, your Honours.
25 MR. O'SULLIVAN: Your Honours, reference to this letter is to
1 show the time-frame and the short fuse with which we were
2 given notice, not because of the content of the letter.
3 JUDGE KARIBI-WHYTE: You are still complaining about the
4 dates, that the time was too short, but that does not
5 mean that the Trial Chamber should not see a letter
6 written to you in anticipation of what is coming before
7 the Trial Chamber. There is nothing wrong with that.
8 MR. O'SULLIVAN: In response to my friend Mr. Niemann, I am
9 just saying that the reason I made reference to the
10 letter, the reports and the motion was to show the
11 dates, not the content. That is the point I am making.
12 I say the relevancy of all this is the dates and the
14 JUDGE KARIBI-WHYTE: This is the 18th you mentioned, and
15 that is the date of the letter. This is not a
17 MR. O'SULLIVAN: But the contents of the letter is not
18 appropriate for the point I made to you, your Honours.
19 I was talking about the dates, not the contents of those
21 JUDGE KARIBI-WHYTE: Nothing should be shut out of the Trial
22 Chamber, if it is relevant to the issue before it. The
23 area of one's observation is quite different, not
24 whether letters have been written to you. It is quite a
25 different consideration. Have you concluded?
1 MR. NIEMANN: Yes, your Honours.
2 JUDGE KARIBI-WHYTE: We will come back by 4.30. Then we
3 will give our decision.
4 (3.55 pm)
5 (A short break)
6 (4.30 pm)
7 JUDGE KARIBI-WHYTE: Good afternoon, ladies and gentlemen.
8 We are trying to read a very short ruling. The
9 application before us is by the Prosecution for leave to
10 call an expert witness. The Prosecution and Defence had
11 concluded their submissions on an application of the
12 Prosecution to tender into evidence certain exhibits on
13 31st October 1997. The Prosecution has now brought this
14 motion for leave to call this expert witness in respect
15 of the documents. Although Prosecution has indicated
16 the evidence of the expert will concern only Mr. Delalic,
17 the exhibits which require the evidence of the expert
18 are not indicated in the motion.
19 Counsel for the Prosecution in the arguments has
20 informed the Trial Chamber that a letter has been
21 written to the Defence indicating the documents
22 affected. Counsel to Mr. Delalic is opposing the
23 motion. Among the grounds relied upon, some which are
24 substantive, is that the Prosecution has not shown good
25 cause or justifiable reason for the application. It was
1 also submitted that the Prosecution has not given the
2 Defence adequate notice to prepare for the testimony of
3 the expert.
4 It is admitted that the Prosecution has sent a
5 preliminary of the expert to the Defence, but the
6 Defence regard this as insufficient for the preparation
7 of the expert's testimony. The Trial Chamber is
8 satisfied that the Prosecution has not shown good cause
9 why leave should be granted for them to reopen the
10 matter after parties had made their final submission in
11 respect of the tendering of those documents. The reason
12 given about caution because of a recent ruling by itself
13 is not good cause. The expert has not been shown to be
14 unavailable before now, or that the reason for his being
15 invited was not in existence.
16 The issue of the possibility of proof of these
17 documents has always been known to the Prosecution
18 several months ago. The Trial Chamber is therefore not
19 satisfied that the Defence has been given sufficient
20 notice to prepare for the evidence of the expert, and we
21 do not consider it in the interests of justice to give
22 the leave sought. We do not think it is necessary to go
23 into the other reasons for the opposition to the
24 application. The motion is therefore refused.
25 I think this is our ruling on the matter. I think
1 you have another motion, have you? If you have any
2 other motion, we will continue.
3 MS. McHENRY: Your Honour, if I may just bring up two
4 logistical issues, they are not new motions but in
5 preparation for closing our case. I want to -- the
6 Registrar has indicated that I should in open court
7 proffer the video excerpts that were shown to
8 Witness T. They previously have been shown from the
9 original, and then I was subsequently instructed that
10 there should be excerpts of what was shown and
11 identified to the witness separated from the originals.
12 That has been done, so just in open court, so we can
13 have the numbers, I wish to proffer them. They already
14 have been identified as part of the testimony.
15 Obviously if Defence wishes they can later verify that
16 they are in fact the excerpts identified by Witness T,
17 but if I may just do that and get the numbers in open
18 court, that is the first issue.
19 JUDGE KARIBI-WHYTE: I wish I understood any of the things
20 you have said.
21 MS. McHENRY: I am sorry, your Honour, let me start again.
22 Witness T previously testified. Witness T was an
23 employee at the Celebici camp. Using the original
24 tapes, he was shown excerpts from the tapes and he
25 identified them. I was then instructed that an
1 excerpted video, just showing the parts that the witness
2 identified, should be prepared to make it easier for
3 everyone, including the court, the Defence and the
4 Prosecution, to know exactly what the witness was shown
5 and identified. I believe this has been done previously
6 but I am not exactly -- I know the Defence has done it
7 too, I do not know whether or not they have always been
8 given separate numbers, but in this case at least, I was
9 told that we should do this in open court just so that
10 the numbers could be reflected in open court.
11 JUDGE JAN: The videos are prepared by Witness T himself?
12 MS. McHENRY: What this is is just the excerpts of what the
13 witness saw and said "yes, I was present or I took
14 this", whatever. (Handed). Thank you.
15 JUDGE KARIBI-WHYTE: Was the Defence aware of this?
16 MS. McHENRY: Yes, your Honour, I believe, and it had been
17 agreed with the Defence that this would be done. Of
18 course, I have no objection if they later on want to
19 verify --
20 JUDGE KARIBI-WHYTE: It is part of the exhibits.
21 JUDGE JAN: If I remember correctly, the Defence said only
22 the excerpts should be exhibited, not the entire videos.
23 MS. McHENRY: Exactly.
24 JUDGE JAN: So you have prepared the excerpts and now you
25 want to present them.
1 MR. ACKERMAN: Your Honour, to some extent I can verify that
2 and additionally say that just before we started the
3 afternoon session, Ms McHenry informed me she was going
4 to make this offer. It seems to me that it really would
5 be a great deal more helpful in terms of making sure we
6 are not on different pages here, they have apparently
7 had these excerpts for a long time, to simply give us a
8 tape and say "these are the excerpts we think are
9 appropriate out of Witness T's testimony, take a look at
10 it. If you have any objection, let us know and we will
11 get it cleaned up". Obviously we have not had a chance
12 to look at the tapes that were made and I am confident
13 we will have a chance to do that and if we have any
14 later objection, the Chamber will hear it, but it seems
15 like a more logical way to do it, if they want to do
16 something like this, to give us a copy of the excerpts
17 and say "these are the ones we think are appropriate",
18 rather than make us go through this process of raising
19 the matter at a later time.
20 JUDGE JAN: It has been done at your own request that only
21 the excerpts that had been shown to the witness should
22 be exhibited, so the other material from the tape was
23 taken off and these excerpts were prepared separately.
24 MR. ACKERMAN: I am not making any objection whatsoever, it
25 is just a suggestion to make things work a little more
2 JUDGE KARIBI-WHYTE: I suppose this is a matter of
3 co-operation between the Defence and the Prosecution.
4 MS. RESIDOVIC: Your Honours, for that very reason, perhaps
5 we could clear up some other questions too. The
6 Prosecution probably has some other excerpts shown
7 during the testimony, so that perhaps all the others
8 should be treated in the same way. I draw attention to
9 the fact that some documents that we are discussing
10 include tapes, entire tapes, so it would be a good idea
11 to include in the evidence only the excerpt that
12 corresponds to the excerpt shown to a particular
14 MR. GREAVES: I do not have terribly much to say, but if my
15 learned friend Ms McHenry asserts to me that those are
16 the excerpts she showed to the witness, I will, of
17 course, accept it. If it turns out they are not, I will
18 telephone her.
19 MS. McHENRY: Thank you. If I may just have the numbers
20 for the record, please?
21 THE REGISTRAR: These excerpts are from videotapes which
22 have been already marked as Prosecutor's Exhibits 110,
23 111 and 112. So they will be marked 110C, 111C and
25 MS. McHENRY: Thank you. Your Honour, the next matter,
1 entirely unrelated, again as part of preparing to close
2 our case, it was brought to our attention with respect
3 to the testimony of Ms. Milojka Antic, who testified
4 that she had been raped in the Celebici camp, and the
5 Defence impeached her -- attempted to impeach her on
6 numerous occasions about her prior statement to the
7 Office of the Prosecutor. It has come to our attention
8 that that statement was not offered at the time of her
9 testimony, but because it was referred to on numerous
10 occasions, the Prosecution, as it has stated, we have
11 had this same argument and discussion before, believes
12 it appropriate for your Honours to have her statement,
13 only to determine the extent to which she has been
14 impeached. We do not offer it as substantive evidence,
15 only as it relates to her credibility, as to which she
16 is impeached. I have extra copies for both the Chamber
17 and Defence counsel and obviously Defence counsel
18 previously has this, but I would just offer these into
20 MR. MORAN: Your Honour, given the limited nature of the
21 offer, that if they are not offered for the truth of the
22 matter asserted therein --
23 THE INTERPRETER: Microphone, please.
24 MR. MORAN: I was saying, given the limited nature, I will
25 have no objection.
1 THE REGISTRAR: Prosecutor's Exhibit 209.
2 THE INTERPRETER: Microphone please.
3 MS. McHENRY: Yes, your Honour, I believe that would have
4 been the normal course in my country also.
5 Your Honours, that is all the matters we have to bring
6 forward for you now. With your Honours' ruling, we have
7 no additional witnesses for this week. Thank you.
8 JUDGE KARIBI-WHYTE: I think we have before us here your
9 motion to dismiss counts 40 and 41.
10 JUDGE JAN: I am sure the Defence will not object to it.
11 MS. McHENRY: That is correct, your Honour. If you wish we
12 will speak to it, but I believe it speaks for itself.
13 JUDGE KARIBI-WHYTE: Has the Defence any views on that?
14 JUDGE JAN: Mr. Moran will probably be --
15 MR. MORAN: I have not seen the motion, but any time the
16 Prosecution wishes to dismiss a count against my
17 client -- I would like to ask them to dismiss a few
18 more, but I do not think they will do it. I have no
19 objection to them dismissing anything.
20 JUDGE KARIBI-WHYTE: The motion to dismiss is granted. In
21 the absence of any other thing, I think we will take the
22 opportunity to assess where we all are now and what we
23 should come back to do in January. I know you have all
24 indicated you will keep cross-examining Dr. Gow, and
25 apart from him, I see no other evidence before the Trial
1 Chamber. So after that, it is left to the Defence to
2 tell us how you will go, how things are.
3 MR. ACKERMAN: Your Honours will recall that we had discussed
4 earlier and there had been agreement between the Office
5 of the Prosecutor and the Defence regarding the
6 preparation and filing of a motion to dismiss at the
7 close of the Prosecution's case. My expectation, and
8 I do not want to be held to this, but my expectation is
9 that we will finish with Dr. Gow, if we are coming back
10 on January 12th, which is my understanding, that Dr. Gow
11 would go back on the witness stand that day, that we
12 would finish with Dr. Gow probably on 13th January. What
13 we had discussed previously is once the Prosecution has
14 rested, that there would be a period of two weeks for us
15 to prepare and file our motions to dismiss, that the
16 Prosecution would then have two weeks to respond,
17 followed by a week for us to respond; then as soon as
18 the Trial Chamber makes its ruling, we were prepared
19 then to go forward with the Defence case. That is our
20 view of how we should go from this point. I think it is
21 the unanimous view of all my colleagues along the table
22 here, I see nobody saying no, and you will recall that
23 earlier the Office of the Prosecutor, when we brought
24 this matter up before, had agreed that that would be a
25 fair way to do it. I assume they have not changed their
1 position, but I am certain they will tell you if they
2 have. That is what we would request and that is what we
3 would hope can happen next in the case.
4 The process of preparing this motion is underway,
5 but it is as you can imagine with I think maybe as much
6 as 9,000 pages of transcript to deal with at this point,
7 it is not an easy task. There are some significant
8 legal issues and it is something we just need to have
9 some rather unencumbered time to get worked through. We
10 are going to try to file a joint motion, we are hoping
11 we can do that. If that is not possible, then we will
12 perhaps file a joint motion as to some of the issues and
13 separate motions as to some of the issues, but we are
14 going to try to get through it as quickly as we can and
15 I think two weeks is a reasonable request in that
17 JUDGE ODIO BENITO: Mr. Ackerman, the cross-examination of
18 Dr. Gow will finish you said on 13th; your
19 cross-examination, or for the whole cross-examination or
20 only your cross-examination?
21 MR. ACKERMAN: Your Honour, the best I can tell you, and it
22 is impossible to predict, as you could see, Dr. Gow
23 sometimes likes to give longer answers than one would
24 expect, but I would think that what I have left with
25 Dr. Gow I could do in a day or a little bit less. I am
1 not sure how long other counsel have, I think I can be
2 reasonably safe saying that we would finish some time
3 that Tuesday 13th, of everybody, all cross-examinations
4 I think would finish on that day. I cannot imagine that
5 anyone else would take as long as I will take, because
6 I intend to cover virtually everything that anybody
7 might have in mind. It may be that someone else would
8 have a few questions, but I am reasonably certain we
9 would finish on the 13th.
10 JUDGE ODIO BENITO: That is what I thought. Thank you very
12 THE INTERPRETER: Microphone please.
13 JUDGE JAN: We have heard the examination-in-chief of
14 Dr. Gow, we have also heard part of the
15 cross-examination, maybe this period of December you can
16 utilise in preparing your motion, whatever it is.
17 MR. ACKERMAN: Your Honour, all of us will be utilising this
18 period of time at least to some extent in preparing that
20 JUDGE JAN: It should be ready in January when we have
21 finished with Dr. Gow's statement.
22 MR. ACKERMAN: Let me tell the Trial Chamber this, and
23 I think it is important. It is awfully important to me
24 and some other people. That period of time that will
25 run from now until early January, a significant portion
1 of that very many of us on this side of the room have
2 made significant plans to be with our families. It is a
3 holiday period that is important to many of us. I have
4 plans to spend a significant portion of that time with
5 my mother, who is getting quite along in years in
6 Arizona. I have not seen her for quite a long time.
7 I know that others of us have plans to be with our
8 family during that time. It is a time when ordinarily
9 we set aside to spend with our families. It is more
10 important perhaps for many of us this year than in other
11 years, because we have been spending an extraordinary
12 amount of our time sitting in The Hague being away from
13 our families. So we would just hope -- I understand the
14 need to move forward with the case, I understand that
15 the whole -- this whole building would like us to finish
16 this case as quickly as possible, but on the other hand,
17 I think that holiday period is important, perhaps more
18 important than the considerations that might go into how
19 quickly we finish this case.
20 It is certainly not -- we certainly will not have
21 the opportunity, because some of us simply will not
22 abandon those plans, to do the kind of work that is
23 necessary to accomplish what your Honour is suggesting.
24 I cannot take with me all of the exhibits and the entire
25 transcript of this case, wherever I go in the world. It
1 is just too much, I would need a truck.
2 JUDGE JAN: You can have a CD ROM, you can have all evidence
3 on a small disk, 3.5 inches thick.
4 MR. ACKERMAN: I do not know how I can do that, your Honour.
5 If somebody could show me a way to do that, I would be
6 happy. In any event, there is really a lot of work that
7 needs to be done jointly with us all here together to
8 try to accomplish this in a reasonable manner. I think
9 two weeks is not a long time to ask for that,
10 considering the amount of material that we have to work
11 with. We will all be doing a great deal of that work
12 during the time we are on holiday, but it is not
13 something we can work at jointly and together and in an
14 organised manner. I would be surprised if members of
15 the Office of the Prosecutor do not have the same kind
16 of plans regarding family activities during those
17 holidays. It is fairly traditional for a lot of us.
18 For some of us, of course, it is not.
19 JUDGE KARIBI-WHYTE: Thank you very much.
20 MR. MORAN: Your Honour, along that line Mr. Ackerman pointed
21 out to the court that the process is already in
22 progress. I have written a substantial portion and then
23 rewrote it, cut it down, rather than -- writing short,
24 believe me, is harder than writing long. To try to cut
25 down the number of words that I am going to -- to
1 deliver to the Trial Chamber. I do not want to give you
2 something I have to bring in on a wheelbarrow and I do
3 not think the Trial Chamber would like us to do that.
4 Just those kinds of things require a lot of work, we
5 want to be able to sit down, the Defence counsel
6 together, and say, "okay, this is it, this is the
7 package that we have to work from", go through 8,000 or
8 9,000 pages of testimony and try and get something that
9 presents the legal and factual issues to the Trial
10 Chamber in frankly as short a manner as possible.
11 At the same time, I think that the Prosecution, to
12 be fair to them, they should have been thinking about
13 these issues all along and they are probably
14 anticipating some of the things we are going to say, and
15 they need to have that document sitting on their desk,
16 to be fair to the Prosecutor, so again the issues can be
17 clearly drawn in a reasonable manner for the Trial
18 Chamber. I think we are going to require some time
19 after the close of the Prosecutor's case. I do not
20 think the Prosecutor could say "we rest" and then we
21 reach down in our briefcases and hand something to the
22 Trial Chamber. I do not think that is something we can
24 JUDGE KARIBI-WHYTE: Have you been thinking about the
25 projection of your witnesses?
1 MR. MORAN: Yes, your Honour.
2 JUDGE KARIBI-WHYTE: So that we might know exactly how
3 things might unfold as we go along.
4 MR. MORAN: Your Honour, we have discussed it among
5 ourselves, both as individuals, who is going to call
6 what witnesses, the order we are going to go in. In
7 fact, I was going to ask for some guidance at some point
8 from the Trial Chamber on (i) what order do you want to
9 see the Defence, and (ii), just as a technical thing, on
10 how we should proceed on cross-examination. I can tell
11 you what the practice is in multiple defendant trials
12 where I have been before. During the Defence case,
13 which would be first, there is a direct examination, one
14 defendant calls a witness, there is a direct
15 examination, followed by cross-examination by the
16 Prosecutor, followed then by cross-examination by the
17 other defendants. That is the procedure that I have
18 seen, I would ask the Trial Chamber to adopt that, but
19 I think it is something we need to think about.
20 JUDGE KARIBI-WHYTE: There is usually a practice where
21 Defence counsel agree among themselves in areas where
22 they might not even cross-examine, before it starts. It
23 makes life easier for everyone.
24 MR. MORAN: I agree with your Honour. If those kinds of
25 things -- I am sure that to take some of them at random,
1 Mr. Delalic is likely to call some witnesses that are
2 going to have absolutely nothing to do with Mr. Delic,
3 and I am not going to have anything to say to those
4 witnesses. But I think those are the kinds of technical
5 things that we need to be thinking about prior to the
6 start of the Defence case. I know that Mr. Karabdic has
7 been working very hard talking to witnesses in the
8 former Yugoslavia, preparing to provide the Victim and
9 Witnesses Unit with locations and various other
10 information that they need so that we can do this in
11 some kind of a rational --
12 JUDGE KARIBI-WHYTE: Because of the nature of our facilities
13 here, and for the purpose of arrangement of Trial
14 Chambers, it is fairly necessary for us to know exactly
15 the size of the Defence case so that we will know what
16 to do in determining how long we could take, one week,
17 two weeks, because if you have a fair idea of how many
18 witnesses are likely to be involved, then we will know
19 for how long it will take and a fair estimate of how
20 much the cross-examination will take.
21 MR. MORAN: Your Honour, I would expect and I am begging you
22 not to hold me to this, I am expecting that over the
23 holidays, I will probably -- we will discuss it and
24 there will probably be, what, ten to fifteen fact
25 witnesses, is that a fair assessment? Then, because of
1 specific things that the Prosecution has brought up in
2 its case, I may be designating some more experts. If
3 I do that, I will do that over the holidays as soon as
4 I can find people who have expertise in various areas.
5 But right now, we are just -- we need to also go
6 over the testimony --
7 JUDGE KARIBI-WHYTE: I know you might be waiting until after
8 your submission, then you know what is left for you to
9 defend. I think that is the normal pattern.
10 MR. MORAN: That is the other thing, your Honour. We do not
11 know until the Trial Chamber rules on our submission
12 what is left. So it would seem to be a waste of
13 resources if we were to line up witnesses and have them
14 standing out in the hallway having been flown in from
15 every place and then have the Trial Chamber rule that as
16 a matter of law we are dismissing that count on the
17 indictment. So before we can really firm things up, we
18 need to see how the Trial Chamber rules on our
20 JUDGE KARIBI-WHYTE: So we start with a conservative
21 fortnight period after the close of the case of the
22 Prosecution, within which you will be able to submit
23 your submissions.
24 MR. MORAN: Your Honour, I think that is more than
25 reasonable. We discussed this -- I want to say in
1 October -- that I think everyone agreed, including the
2 Trial Chamber, that two weeks for us to prepare it after
3 the Prosecutor rests, two weeks for them to reply and a
4 week for us to reply to their reply would be a
5 reasonable time. I am just thinking off the top of my
6 head right now, but there is enough time between now and
7 January 12th that if we are fairly sure that the
8 Prosecutor is going to rest that week, the other Trial
9 Chambers could make plans to make use of the courtroom
10 during that five week period. Also I think the Trial
11 Chamber might want to also think about whether it would
12 want to set aside a day or two days to argue that
13 submission, for oral argument.
14 JUDGE KARIBI-WHYTE: That depends on submissions of the
15 answers themselves, so that we know what to do after
17 MR. MORAN: Yes, your Honour.
18 JUDGE KARIBI-WHYTE: Mr. Niemann, where do you come in here?
19 MR. NIEMANN: We have no particular opposition to the
20 timetable proposed, your Honour.
21 JUDGE KARIBI-WHYTE: It is the time scheduled that we are
22 considering, the fortnight period for each one to submit
23 and reply is adequate for you?
24 MR. NIEMANN: Yes, that is adequate for us, the time limits
25 that were mentioned by Mr. Ackerman are suitable for the
1 Prosecution, your Honour.
2 JUDGE KARIBI-WHYTE: We will give also our own undertaking
3 that as much as we can, every outstanding -- because
4 there are a few outstanding rulings we must make sure to
5 get to everyone before these things start. We will make
6 sure that those things are cleared up and avoid any
7 confusion while we go along, so we must make sure. So
8 we too will be going for our Christmas vacation, those
9 of us who come from very far away, so we hope to do that
10 for the time being. So we thank you very much for now.
11 MS. McHENRY: Your Honour, I would just wonder whether or
12 not Defence counsel can give us an idea of the order in
13 which they proceed and if the Defence counsel, other
14 than Mr. Ackerman, can give us a general idea of
15 approximately how many witnesses they plan on calling,
16 because it will also affect the Prosecution and its
18 JUDGE KARIBI-WHYTE: That is a good idea. These are very
19 important things, so that we know exactly what the
20 Prosecution faces.
21 MS. RESIDOVIC: Your Honours, I did not hear Mr. Ackerman
22 mentioning any numbers. I heard Mr. Moran mention some
23 numbers, but I think that a long time ago, we discussed
24 the matter, and I was joking at the time, but, of
25 course, we will ask for a dismissal of the charges
1 against our client, so that the Defence cannot at this
2 stage give any rough estimate of the number of
4 MR. OLUJIC: If we are expected to answer this question, like
5 my learned colleague, Ms. Residovic, we also cannot
6 know at this stage how many witnesses we will call, but
7 they will certainly not be large numbers. Please do not
8 hold me by what I say, but it will be ten to fifteen
9 witnesses, and this number includes the expert witnesses
10 that we intend to call.
11 MR. ACKERMAN: Your Honours, although Ms. McHenry was not
12 interested in what I might have to say --
13 MS. McHENRY: I apologise for getting the name wrong.
14 MR. ACKERMAN: Two little bearded guys from Texas tends to
15 get mixed up at times.
16 MR. MORAN: Your Honour, if I could add something, I think
17 I am much younger.
18 MR. ACKERMAN: Based on the assumption, and it is only an
19 assumption and it probably will turn out to be untrue,
20 but based on the assumption that we will be answering
21 all the indictment as it currently exists, my estimate
22 will be similar to that of Mr. Olujic, somewhere between
23 ten and fifteen witnesses. In that group there will be
24 two or three experts.
25 JUDGE KARIBI-WHYTE: I suppose it is fair not to be too much
1 of a cock-eyed optimist. You cannot indicate the number
2 of witnesses you want in case nothing happens to your
3 optimism. Yes, Mr. Niemann.
4 MR. NIEMANN: Yes, your Honour. Just raising the question
5 that was raised by Madam Residovic, I just wish to say
6 that in a recent matter which was before another
7 Chamber, where Judge Cassese is the presiding judge, the
8 Defence were ordered to produce not only their list of
9 witnesses but witness statements prior to the
10 commencement of the trial, which is an even earlier
11 stage than suggested by Madam Residovic. In that case,
12 there was an order made, so I do not see that the fact
13 that she may make a submission of no case, if she is
14 successful, true it is she will not call witnesses, but
15 surely she is in a position to let us know.
16 MR. GREAVES: Could I just enquire from Mr. Niemann -- he is
17 not listening. I would just like to enquire from
18 Mr. Niemann which case that is so we can get a copy of
19 the decision. Like a magpie, I gather little things
20 like that up.
21 MR. NIEMANN: You may be interested in that case. It is
22 Dokmanovic. Not only was an order made to produce the
23 Defence statements and the Defence list, the Prosecution
24 statements and all exhibits were to be made available
25 prior to the commencement of trial, and orders were
1 entered to that effect. In addition to that, the
2 Defence are required to indicate the grounds of their
4 MR. GREAVES: Thank you. Most kind.
5 MR. ACKERMAN: Your Honour, there was also a request that we
6 indicate an order, and it is my understanding that
7 counsel have agreed that the presentation of the Defence
8 will be in the order that they are named in the
10 Before I sit down for the last time today, I want
11 to wish everyone in this Trial Chamber, this Celebici
12 family that we have been together with so long, very,
13 very happy and healthy holidays, whatever that holiday
14 may be for you. Thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much. I think it is a
16 very good idea for Defence counsel to start preparing
17 their list of witnesses so that they might not be caught
18 unawares, and submit them, usually, in accordance with
19 Rule 66 and Rule 67, if there is any reason why it is
20 necessary to adhere to the Rules, because we do not want
21 to be getting into the skirmish which we have been used
22 to where there is obligation to do so because it makes
23 the practice much easier for everyone, the statements
24 which your witnesses are likely to cover, because the
25 Prosecution will need them. We have taken it for
1 granted that this is a normal thing. From what I have
2 observed here, the practice has been going on, so that
3 I do not expect it to be ignored now, that it has been
4 going on for so long.
5 I wish everyone a good Christmas, peaceful holiday
6 and fully refreshed to start again on 12th January. As
7 you said, as far as the Trial Chamber is concerned, we
8 will make sure that by the time you are due to start,
9 you will have everything which we ought to do to enable
10 you carry on. We will not fail in that regard, I assure
11 you of that.
12 MR. MORAN: Your Honour, before you leave, I got the
13 impression that the Trial Chamber expected us to deliver
14 to the Prosecutor a witness list. As I recall on,
15 I believe 21st February, you entered an order saying
16 that there was no such obligation.
17 JUDGE KARIBI-WHYTE: Under Rule 66.
18 MR. MORAN: And 67. So, as I understand it, this point,
19 unless there is a motion --
20 JUDGE KARIBI-WHYTE: There are circumstances where you are
21 obliged, it depends on the nature of your Defence.
22 MR. MORAN: Short of an insanity defence or an alibi or
23 something, the court is not posing any obligation.
24 Thank you very much, your Honour, and have a good
1 (5.15 pm)
2 (Hearing adjourned until 10.00 am
3 on Monday, 12th January 1998)