Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9038

1 Friday, 1 July 2005

2 [Open session]

3 --- Upon commencing at 2.17 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, could you call the case, please.

6 THE REGISTRAR: Good afternoon, Your Honours. This is the case

7 number IT-03-68-T, the Prosecutor versus Naser Oric.

8 JUDGE AGIUS: I thank you. Mr. Oric, can you follow the

9 proceedings in your own language?

10 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. Yes,

11 I can follow the proceedings in my own mother tongue.

12 JUDGE AGIUS: Okay, thank you and good afternoon to you. You may

13 sit down.

14 Appearances for the Prosecution?

15 MR. WUBBEN: Good afternoon, Your Honours my name is Jan Wubben,

16 lead counsel for the Prosecution. Also good afternoon to my learned

17 friends of the Defence. I'm here together with co-counsel, Ms. Patricia

18 Sellers, Mr. Gramsci di Fazio, and Ms. Joanne Richardson, as well as our

19 case manager, Ms. Donnica Henry-Frijlink.

20 JUDGE AGIUS: I thank you and good afternoon to you and your team.

21 Appearances for Naser Oric?

22 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours, my

23 name is Vasvija Vidovic and together with Mr. John Jones we represent the

24 defence of Mr. Naser Oric. With us today is our case manager, Mr. Geoff

25 Roberts, and our legal assistant, Ms. Adisa Mehic.

Page 9039

1 JUDGE AGIUS: I thank you and good afternoon to you and your team.

2 So I think the first part of today's hearing we'll be hearing

3 proper, the trial, because we are going to deal with the site visit, I'm

4 going to proceed with the process verbal and therefore this part of the

5 proceedings is not -- does not form part of the pre-Defence conference but

6 of the trial proceedings proper.

7 As I promised you following the site visit that we had in

8 north-eastern Bosnia, and Herzegovina, we are now going to read out a

9 process verbal relating to the visit because we believe that such a

10 process verbal should go into the record, and after that, after reading

11 this, I would like a feedback from you as regards photos which we have and

12 also a video taken during the helicopter flight in case you would like to

13 have it exhibited in the records of the case, which we are ready to do.

14 So this is a process verbal on the site -- on-site visit in

15 Bosnia-Herzegovina which this Trial Chamber conducted between the 20th and

16 the 24th of June 2005.

17 The purpose of the visit was to view some of the sites which are

18 relevant to the case before us. The site visit was planned several months

19 ago in consultation with the parties, the Registrar, and the Chief of

20 Security and his staff of this Tribunal. The parties were advised from

21 the very beginning to agree on a protocol acceptable to both, particularly

22 in view of the fact of the unavoidable absence of the Accused during the

23 on-site visit.

24 During the site visit, the Trial Chamber was accompanied by two

25 members of its staff, as well as by lead counsel for the Prosecution,

Page 9040

1 Mr. Jan Wubben, and co-counsel for the Defence, Mr. John Jones. Both

2 parties had an interpreter and an investigator accompanying them.

3 Mr. Philip Berikoff accompanied the Trial Chamber during the entire visit

4 and acted as guide, after that both parties agreed on his choice as guide.

5 Indeed, I want to start by publicly thanking these three gentlemen,

6 without whose corporation the site visit would not have materialised.

7 Their conduct throughout and their cooperation with one another and with

8 the Trial Chamber was exemplary and is to be commended. We also wish to

9 underline Mr. Berikoff's hard work in this whole venture, the rectitude

10 with which he fulfilled his role as a guide, and his great sense of

11 responsibilities towards the well being and safety of all those taking

12 part in the site visit, officials of this Tribunal as well as others.

13 A protocol was agreed to and signed by the parties prior to

14 departure, pursuant to which there were to be no submissions made by

15 either party during the site visit and that the relative explanation of

16 the guide should -- would not include any reference to submissions or to

17 specific facts except in so far as may be agreed upon by the parties. The

18 Trial Chamber is pleased to note that both parties, as well as the guide,

19 Mr. Berikoff, strictly adhered to this protocol during the visit and the

20 Trial Chamber wishes to publicly acknowledge this and express our

21 appreciation to the parties and to the guide.

22 The Trial Chamber also wishes to publicly acknowledge the sterling

23 work done by the security section of this Tribunal, both prior to and in

24 preparation of the site visit, as well as while it was being conducted.

25 The performance of the Tribunal's security team that accompanied us was

Page 9041

1 highly professional and equally very effective. During the visit, the

2 Chamber and the rest of the team were also assisted by EUFOR and in

3 particular we wish to publicly acknowledge the contribution of the Italian

4 carabinieri team who escorted us wherever we travelled and provided us

5 with logistics, cover and protection as well as the Czech contingent that

6 provided of -- EUFOR that provided us with a helicopter and crew which

7 made it possible for us to view from the air most of the area involved in

8 this case, and the terrain which was not practically to reach by car.

9 We also wish to acknowledge the full and effective cooperation of

10 the security and police forces of Republika Srpska and of the Federation

11 of Bosnia-Herzegovina. Last but not least I wish to thank, publicly thank

12 Mr. Hans Holthuis, Registrar of this Tribunal, who provided not only the

13 funds necessary to make this possible, this site visit, but also the

14 assistance of his staff whenever it was needed. Mr. Holthuis was amongst

15 the very first in this Tribunal to realise the importance of such site

16 visits and the work of the various Trial Chambers and has been

17 instrumental in making them possible.

18 And I publicly acknowledge this. My two colleagues and I have

19 already signed letters of thanks and appreciation to Mr. Innell, Chief of

20 Security of this Tribunal. Major Milan Kutni [phoen] responsible for the

21 Czech contingent with EUFOR, Colonello Giovanni Trulijo [phoen], IPU

22 commander at EUFOR headquarters, the respective commanders of Republika

23 Srpska and the Bosnian federation security and police sections, and

24 several high officials of this Tribunal that I don't need to mention

25 here.

Page 9042

1 Several locations were visited on three consecutive days, that is

2 21 to 23 of June 2005. The following is a detailed account of the

3 locations visited by the Trial Chamber. I will start with Tuesday, the

4 21st of June 2005.

5 On Tuesday, 21st of June 2005, the visit started with a stop in

6 Cerska. On the way to Cerska we saw Rovasi. We then drove through

7 Konjevic Polje, where the school was pointed out to us. We drove on to

8 Kravica where we passed the warehouse on the main road. A short stop was

9 made at the elementary school and medical dispensary in the centre of the

10 town. Siljkovici could be seen from Kravica. We then drove on up the

11 hill to Opravdici from Kravica. From a high point, Jezestica could be

12 seen to the right and another small village, possibly Mandici, could the

13 seen to the left I think possibly because there was some doubt forthcoming

14 on whether the village we were being addressed to look at was in actual

15 fact Mandici or not, and I'm still undecided and we are still undecided

16 whether it was Mandici or not. We then drove up above Kravica in the

17 direction of Siljkovici to the power substation -- electrical power

18 substation from where we could see Kravica centre. At the bottom of the

19 hill, there was a monument under construction in memory of the Serb

20 soldiers who fell in the area.

21 The convoy then took the direction of Bozici, which the conditions

22 of the terrain prohibited us from reaching.

23 And so we drove on to Jezestica and the areas of Glogova and

24 Magasici which were pointed out to us.

25 We also visited Bratunac where we first stopped at the purported

Page 9043

1 Vuk Karadzic school but the Defence submitted that this was the wrong

2 school. We therefore were directed to the former Vuk Karadzic school in

3 the centre of the town which the Defence claimed to be the school which is

4 relevant to the case. The health centre in Bratunac was also pointed out

5 to us by the Defence.

6 We also had the opportunity to notice the location of the Drina

7 River on the left when exiting Bratunac in the direction of Voljavica with

8 on the other side of the river.

9 We then proceeded to drive by Voljavica and Zaluzje and proceeded

10 up the hill to the site of a former mosque next to which the Orthodox Sase

11 monastery has now been constructed. We drove down the hill, stopping at

12 the Sase mine, the zinc mine, and the convoy then also drove through

13 Bjelovac from where we could also notice the layout of the Drina River as

14 well as the village of Grabovica across the river and in Serbia. We then

15 were taken on to Loznicka Rijeka and Sikiric, and Vrhpolje. A village

16 across the river and in Serbia could be seen from Sikiric.

17 I now come to Wednesday, 22nd of June. On Wednesday, the 22nd of

18 June, again because of the difficulties we had in reaching some areas, we

19 started with a helicopter flight which lasted an hour and 15 minutes. And

20 which covered the major sites of the visit, even those which we actually

21 then visited by car. The helicopter took off and landed in Vlasenica and

22 flew over Opravdici, Siljkovici, Kravica, Bozici, Glogova, Magasici,

23 Bradjevina, Ratkovici, Ducici, Srebrenica, and Bajramovici. The

24 helicopter flight also gave us a unique opportunity to view the layout of

25 the terrain in various places as well as the flow of the Drina River.

Page 9044

1 Back on the ground, we drove through Nova Kasaba and Konjevic

2 Polje again. We then passed the area of the Glogova valley and leaving

3 Bratunac behind and continuing along the Drina River on the Bosnian side

4 we saw Grabovica Rijeka. Bradjevina was not visited because of

5 accessibility and road safety concerns that were communicated to us and

6 with which we agreed.

7 The Trial Chamber also stopped at Fakovici where we walked to the

8 school and the post office. We then drove on to Zanjevo and Abdulici,

9 where we stopped briefly. We passed by Radijevici and Divovici, which are

10 two very small hamlets attached to Zanjevo and Abdulici. All four hamlets

11 form a line along the main road facing the Drina River on the Bosnian

12 side.

13 We then headed towards Skelani where we walked halfway across the

14 steel bridge. From Skelani we also had an opportunity to observe Bajna

15 Basta in Serbia on the other side of the Drina.

16 Driving on, we drove into the area of Jezero and Vitez. We then

17 headed towards the village of Osmace on top of a plateau. Next we reached

18 Poznanovici where nothing but the ruins of two buildings remain. The road

19 to Ratkovici and Ducici were -- was impassable and we had to turn back.

20 Coming down through the valley we drove past Kragljivoda and Zeleni Jadar.

21 We reached the Bracan area, drove past the Bracan mine, bauxite mine and

22 elevation, as well as the Gunjaci mine.

23 I come to the last day. We started off on Thursday, the 23rd of

24 June, by going to the village of Suceska. A very small village, and

25 situated on a plateau about ten kilometres from Srebrenica. From there we

Page 9045

1 took the mountain road through Bajramovici to enter Srebrenica from the

2 north end. In Srebrenica, we started by visiting the municipal building

3 and the building behind it which are both to the side of the department

4 store. Attached to the latter, behind the Court building, and separated

5 by a red brick wall, we were able to see the pre-war TO headquarters

6 building. The building behind the municipal building would also be

7 entered by a flight of stairs and the court building part of which the

8 Trial Chamber had the opportunity to see.

9 On the occasion of visiting the building behind the municipal

10 building, the Trial Chamber encountered some unfortunate organisational

11 problems in that the chief judge in Srebrenica, who possessed the only key

12 to allow access to this building was unavailable. We were told he was

13 having breakfast, and the building had to be broken into as he himself

14 sent a message and suggested that we could do.

15 This was the only instance of lack of cooperation that the Trial

16 Chamber encountered during its visit and we thought it fit to mention it

17 in this process verbal, hoping that there will not be a repetition of such

18 incidents in the future.

19 The inside of this building could be seen in part because at

20 ground-floor level the corridor and the rooms are filled with about 10

21 centimetres of stale water. In Srebrenica, we also saw from outside the

22 Dom Kulture, the culture hall, in the centre of down. We also saw from

23 outside the Domavija hotel. The Trial Chamber also had an opportunity to

24 enter into the old SUP building which is 300 or 400 metres from the centre

25 in the direction of Potocari. We had an opportunity to see the cell with

Page 9046

1 bars, with iron bars, to which some witnesses had referred in the course

2 of the trial. The first floor which was alleged to have housed the

3 civilian police is now a residential floor and we could therefore only see

4 the layout from the landing as no arrangements had been made to have

5 access to the rooms or if they had been made, they had not been

6 implemented. The Prosecution insisted that the judges visit the basement

7 but the door of the only room that there is in the basement was locked and

8 through the key hole it became apparent that it was now being used as a

9 storage area.

10 Part of the landing leading to the basement was blocked with

11 firewood logs. In Srebrenica, we also entered the new PTT building and

12 had a tour of the rooms at first-floor level. From in front of this

13 building, the Srebrenica hospital mentioned during the trial could be seen

14 from outside across the road. This hospital is not being used at present.

15 Exiting Srebrenica from that end we drove on to Potocari which is

16 very close to Srebrenica and situated in a wide valley. We stopped at the

17 Potocari memorial situated just opposite the former DutchBat compound and

18 from the memorial, the different elevations and in particular Kaolin and

19 Caus were pointed out to us by Mr. Jones for the Defence. The last site

20 of the visit was the yellow bridge in Potocari a few metres away. The

21 Trial Chamber returned to The Hague on Friday, the 24th of June.

22 I'm soon going to close this section. I would like to know from

23 both of you if you would like -- we have a set of photos that we have

24 taken ourselves and we also have the video of the helicopter flight which

25 the Italian crew took and made available. Do you want those to enter into

Page 9047

1 the records or not? Mr. Wubben?

2 MR. WUBBEN: Yes, Your Honour. I appreciate it.

3 JUDGE AGIUS: Mr. Jones?

4 MR. JONES: Your Honour, I haven't had the opportunity yet to

5 review the videos, as you may know we --

6 JUDGE AGIUS: I haven't seen it either.

7 MR. JONES: Yes. I'd like to take it under consideration, if you

8 don't mind, particularly as we -- I think there may also be a couple of

9 videos. You'll recall, firstly, the process verbal as far as we are

10 concerned is a fair reflection of the visit. Our position was that we

11 hadn't seen from the air, we the Defence team -- a video was made I think

12 by the carabinieri, and I haven't had the opportunity to review that video

13 yet.

14 JUDGE AGIUS: I haven't either.

15 MR. JONES: I don't know if it's been proposed that would be an

16 exhibit. In any event, if I could revert to you on -- on that.

17 JUDGE AGIUS: So my suggestion to you is the following: I have

18 taken note of what Mr. Wubben has said. With regard to photos, what's

19 your position? You want to see them too or --

20 MR. JONES: Are these the photographs taken by --

21 JUDGE AGIUS: By Mr. Tujman [phoen].

22 MR. JONES: Yes. They -- despite the fact that some of them might

23 not be entirely flattering I --

24 JUDGE AGIUS: Exactly. I mean, there are many of them that are

25 not entirely flattering, speaking for myself to start with.

Page 9048

1 MR. JONES: No objection.

2 JUDGE AGIUS: I don't mind leaving for posterity images of my

3 pockmarked face and complexion. So --

4 MR. JONES: In that case, no objection either.

5 JUDGE AGIUS: But I wouldn't stay we stay selecting photos from --

6 we just introduce them as they are. With regard to the DVD, I haven't

7 seen it either and the reason is it is DVD and I don't have a DVD in my

8 office, although I have at home. But I've been busy, Mr. Jones, so I

9 haven't had time to stay looking for an hour and a half of DVD. I will

10 see it. I will make sure that you are copied, you will have a copy of

11 this DVD, if you don't have it already, and of course you are free to let

12 us know if you agree to have it tendered in that case it will be our own

13 exhibit or not, and we will do that at our leisure and pleasure. It's not

14 something that needs to be addressed.

15 MR. JONES: Yes. We have a copy of it. May I also just endorse

16 Your Honour's remarks and the appreciation of the guide and the security

17 section.

18 JUDGE AGIUS: Pardon?

19 MR. JONES: I also wish to endorse your remarks about the

20 professionalism of Mr. Berikoff and his work.

21 JUDGE AGIUS: I thank you. I appreciate that, Mr. Jones, because

22 sometimes we don't realise how much work and how much stress it involves

23 for them, and God forbid something goes wrong, because if something goes

24 wrong then there will be a lot of problems. So I can imagine their stress

25 and I appreciate the professionality that they showed.

Page 9049

1 Yes, Mr. Wubben?

2 MR. WUBBEN: Yes, Your Honour, also I share that appreciation and

3 that's for the record, and in addition to the comment by my learned friend

4 that the process verbal reflects accurately the facts, the locations

5 showed, I can confirm that. But in addition, I would like to share there

6 is only one doubt of a certain location and that reached me afterwards.

7 That's the Kravica warehouse at the main road, as pointed out to us, and

8 I'm not sure any longer whether or not that is the only warehouse and that

9 might be the warehouse that is relevant. I would like to take a contact

10 with the Defence in that respect and to make a submission next week or so.

11 JUDGE AGIUS: All right. I thank you. Yes, fair enough.

12 So basically that brings to an end the part of today's sitting

13 which is trial proceedings proper. We will continue on Monday, the 4th of

14 July. And we now move to the Pre-Defence Conference.

15 [Pre-Defence Conference]

16 JUDGE AGIUS: Now, you are all aware that some time back we signed

17 a scheduling order in preparation of the Pre-Defence Conference,

18 specifying time limits within which we expected the Defence team to

19 proceed with the filings according to Rule 73 -- according to Rule 73 and

20 other applicable Rules of this Tribunal, and in particular to put in the

21 position this Trial Chamber to know what areas would be addressed by the

22 Defence, by which witnesses, and for how long.

23 We had split this into two parts. There was to be a first filing,

24 which was done before the site visit, and a second one which followed

25 after the site visit. They had to be filed in time and were actually

Page 9050

1 filed in time, to enable the Trial Chamber to go through the documents and

2 give directions to our Senior Legal Officer in preparation and for the

3 purposes of the Rule 65 ter meeting that we had scheduled already to take

4 place on the 30th of June. That is yesterday.

5 For the purpose of the 65 ter meeting, we gave specific

6 instructions and directions to our Senior Legal Officer which he was to

7 communicate to the Defence team in particular but also to the parties,

8 leaving him of course with enough flexibility to deal with whatever arose

9 during the 65 ter meeting and without, however, having the authority to

10 bind in any way this Trial Chamber, because it was obvious from the very

11 beginning that there would be Pre-Defence Conference following immediately

12 after the 65 ter meeting.

13 We did, however, ask the Senior Legal Officer to communicate to

14 the Defence that there were several areas which were all included in one

15 way or another in the objects that the Defence team were seeking to adduce

16 evidence about, that we were satisfied, had already been sufficiently

17 proven and we were satisfied that we had already received enough evidence

18 to the extent that we felt we did not require any further evidence on them

19 from the Defence.

20 We also asked our SLO to communicate to the Defence that it was

21 our intention to establish a maximum number of witnesses that they would

22 be allowed, which would not correspond to the total amount of witnesses

23 that they were seeking to adduce and that there would be also a time limit

24 within which the Defence would be called upon, in terms and pursuant to

25 our rules, to finish its case from the evidentiary aspect.

Page 9051

1 The meeting 65 ter meeting was held yesterday. It was a four-hour

2 meeting, I am told, more or less, following which we were given a report

3 by the Senior Legal Officer, detailing the various topics that were

4 discussed and also detailing the position that was taken by the Defence.

5 That doesn't seem to have -- at least not in the report that we have, any

6 position taken by the Prosecution and we stand to be corrected on this as

7 we go along.

8 So I will start first, not because I throw any doubt on what

9 Mr. Von Hebel reported to us, but I want to make sure that his report

10 indeed reflects what was said yesterday and what was discussed yesterday,

11 and then we proceed with the rest of today's agenda.

12 The report that we have received reads as follows: "The Defence

13 submitted the following at the Rule 65 ter conference in response to being

14 informed of the areas the Trial Chamber feels it doesn't need any further

15 evidence about during the Defence case. The areas in which the Trial

16 Chamber -- also the areas in which the Trial Chamber would be interested

17 in hearing witnesses giving evidence, the proposed timetable for

18 completion of the case, and the proposed planning for the Defence case, in

19 terms of number of witnesses and hours which will be permitted. The

20 Senior Legal Officer reports to us the following with regard to the

21 following points. First item or first matter is Defence assessment of

22 time. According to the Defence, the number of Defence witnesses already

23 that is - for the information of everyone, we are talking of 73 witnesses

24 in a case where the witnesses for the Prosecution were roughly 50 - and

25 the number of Defence witnesses, according to the Defence team, already

Page 9052

1 reflects careful consideration of the Rule 98 bis ruling in that the

2 number of witnesses has been trimmed down to 73 from 200. The Defence

3 also contends that its case should take 120 trial days to complete,

4 including time for the Prosecution cross-examination of Defence witnesses.

5 Then I'm informed that the Defence raised some considerations and issues

6 relating to what was termed as completion strategy pressure.

7 The Senior Legal Officer was told by the Defence that Security

8 Council Resolution 1581 indicating a completion date for this case along

9 with a letter from the president to the Security Council concerning the

10 same matter make it appear that completion strategy pressure is affecting

11 limitations placed on the length of the Defence team -- case. The second

12 point made by the Defence according to our Senior Legal Officer in this

13 context is that if the completion strategy is a concern, the Prosecution

14 should have limited -- should have been limited to four or five months.

15 The next issue that was taken up by the Defence during yesterday's

16 meeting deals with equality of arms. According to the Defence team,

17 equality of arms meanings that the Defence should be permitted to have and

18 bring forward the same number of witnesses and time as the Prosecution.

19 The question was asked, "If equality of arms doesn't mean resources or

20 time, what does it mean?" It was also submitted that it is not possible

21 to compare this case to other cases since each Defence strategy is

22 different. The aspect of the complexity of the case was also dealt with

23 and the following points made by the Defence team according to our SLO:

24 13 separate criminal actions are charged with regard to the attacks on the

25 villages, plus the detention charges, for example individual villages are

Page 9053

1 alleged to have been attacked by multiple units under Oric's command so a

2 witness is needed from each unit per attacked village.

3 Second point is command responsibility is alleged to include

4 failure to punish up to 1995 and the Celebici judgement lists eight

5 factors Defence must consider in this regard.

6 Next point, always in this context, is the Defence need to

7 challenge every portion, even minor, of the Prosecution case, to include

8 attacking credibility of witnesses and challenging authenticity of

9 documents.

10 Last, elimination of the plunder charges has no effect on the

11 number of witnesses to be called, since same witnesses are required for

12 wanton destruction.

13 With regard to the various indications of matters that the Trial

14 Chamber would not require evidence upon, as communicated to the Defence

15 team by the SLO yesterday, the Defence, we are told, had the following

16 submissions: The areas in which the Trial Chamber says it is satisfied

17 are not agreed facts.

18 The Defence needs the Trial Chamber to give legal effect by an

19 order with findings.

20 The Appeals Chamber might not be satisfied that these areas have

21 been established and the Defence must consider this possibility.

22 Finally, the Defence doesn't want to rely on these areas and later

23 have them used against it.

24 Then we come to the background of Srebrenica. According to the

25 Defence, they must be allowed to present evidence on Srebrenica and ethnic

Page 9054

1 cleansing. According to the Defence, nothing in the record so far exists

2 which accepts that the Serb attacks came from Serbian villages around

3 Srebrenica which were later the object of attack. And then there is an

4 affirmation by the Defence that they are not trying a political case or

5 intending to offer evidence about the war in general.

6 It is obvious that the meeting yesterday came to a stalemate.

7 There was no apparent way to come to an agreement, and I am told by the

8 Senior Legal Officer that there was a reaction from the Defence team which

9 consisted of the following. Of course, they would consider lodging an

10 appeal, but they were not certain as to which court. They pointed out

11 that I, as Presiding Judge, may find myself in conflict if only I can

12 request extension of ad litem judges rather than those judges themselves,

13 and also, they expressed doubts about the president of this Tribunal

14 alleging that he would have a conflict of interest due to his letter to

15 the Security Council. So the Defence team said that they would also

16 contemplate not calling any witnesses at all, and as a last resort, I'm

17 told, they also suggested that they could withdraw -- consider withdrawing

18 as counsel from the case.

19 This is the report that we have from Mr. Von Hebel. My first

20 question, and I want a straight yes or no answer, for the time being, is

21 whether you agree, both of you, that this is a truthful reflection of what

22 was discussed and what was said yesterday. I think it concerns you more

23 than Mr. Wubben.

24 MR. JONES: Your Honour, if it has to be a yes or no I would have

25 to say no. I would prefer to just briefly clarify where I disagree.

Page 9055

1 JUDGE AGIUS: We will move to that straight away because it's

2 important that we move today. And while we move to that, I would also

3 like to hear from you whether you stick to the same position that you took

4 yesterday or whether there are any other suggestions or other positions

5 that you might consider taking. That will be followed -- that will be

6 followed by a detailed explanation on our part of how we see the entire

7 scenario relating to the administration proper, administration of the

8 Defence team pursuant to what we are requested to do by Rule 73 ter and

9 then we will also have another opportunity to address the Trial Chamber on

10 our suggestions and then ultimately we will come down with a written

11 decision which will be handed down probably on Monday. It will be a

12 written decision.

13 Mr. Wubben, do you consider the report that I have just read as

14 more or less truthful -- not truthful, faithful rendition of the

15 proceedings of the 65 ter meeting held yesterday under the auspices of

16 Mr. -- or the chairmanship of Mr. Von Hebel?

17 MR. WUBBEN: Yes, Your Honour, it is a summary but it is a true

18 reflection.

19 JUDGE AGIUS: It is a summary. Mr. Jones?

20 MR. JONES: Yes, Your Honour firstly I should just say that we

21 actually have a transcript now, and of course there is a transcript.

22 JUDGE AGIUS: Yes. In fact, let's take the matter of the

23 transcript. It was my intention, having discussed that with

24 Judge Brydensholt and Judge Eser, that the transcript should -- this is

25 the first time in the history of this Tribunal that a 65 ter meeting, a

Page 9056

1 preparation of a Defence team -- a Defence case, has ended up the way it

2 has ended, and it's the first time in the history of this Tribunal that a

3 Defence team, with the exception of Milosevic, has tried to adduce more

4 evidence than the Prosecution and has tried to adduce more documents

5 practically than the Prosecution itself. So I think it's the case of

6 putting in the record the transcript of yesterday's 65 ter meeting because

7 I want to have everything clear for whatever purposes it might be needed

8 later on.

9 The only problem that I have is the following: I am told -- I am

10 not -- I was not aware of then that usually that transcript would be a

11 confidential one. I do not contest it. What I would like to know from

12 you, whether you want to keep it treated as confidential, in which case it

13 would go under seal, or whether you would like to have it publicly filed

14 at our instance which we would prefer but we will not force it on you, of

15 course, in which case it would be filed publicly.

16 MR. JONES: We would be delighted for it to be public. We would

17 have asked for it ourself because we did expound at great length all our

18 reasons for being -- I'll come to it, both for being greatly shocked by

19 the suggestion that we should having 25 per cent of the time allocated to

20 the Prosecution.


22 MR. JONES: And so we would be very happy for it to be public.

23 JUDGE AGIUS: Mr. Wubben.

24 MR. WUBBEN: Your Honour, indeed it is the first time so I would

25 like to ask some time to enable Prosecutor to take responsibility.

Page 9057

1 JUDGE AGIUS: All right. Not later than Monday, please. Monday

2 we will decide whether it goes private or under seal. For the time being,

3 I think it can go in, and it will remain under seal until Monday when we

4 can unseal it. That's the position.

5 Yes, now, Mr. Jones.

6 MR. JONES: Yes. Well, Your Honour, firstly, I think,

7 particularly since we are not sure yet whether the 65 ter Conference will

8 be public or not, we need today to be able to expound our grave, grave

9 concerns that our client's prospects for a fair trial are rapidly

10 vanishing over the horizon with the present directions for the Defence

11 case. So I would ask that today my colleague and I both be given half an

12 hour --

13 JUDGE AGIUS: Yes, yes, yes.

14 MR. JONES: -- To do so.

15 JUDGE AGIUS: I think you deserve half an hour, at least.

16 MR. JONES: Each.

17 JUDGE AGIUS: Your colleague I -- Oh, I see --

18 MR. JONES: Yes. Lead counsel, half an hour; myself, half an

19 hour.

20 JUDGE AGIUS: Yes, yes, yes.

21 MR. JONES: And I want to be moderate in my remarks but you will

22 have seen our reaction yesterday and I also don't want to mince my words.

23 I do want it to be absolutely clear on the record that we feel that if we

24 are only allowed 25 per cent of the Prosecution -- the time the

25 Prosecution took that it would -- it would be a sham. It would be a

Page 9058

1 mockery of justice, to make it absolutely clear. And we do maintain our

2 position that the completion strategy is being given precedence over a

3 fair trial. I'm not going to go into those -- my remarks now, the body of

4 remarks. I will come to those presently. It was really just to deal with

5 the summary by Mr. Von Hebel which I was forced to give a yes or no answer

6 as to whether it was accurate. It's mostly accurate but there are some

7 clarifications which I want to make so that our position isn't made to

8 sound ridiculous because in some respects, our position is being --

9 firstly, by being compared to the case of Milosevic is being made to look

10 as if we are being unreasonable. I'd like to deal actually with Milosevic

11 just while we are on that subject, that it's not just Slobodan Milosevic

12 who wanted as much time or more time, but the Trial Chamber said in its

13 order dated the 25th of February 2004, "Considering that the accused

14 should have the same time as the Prosecution had to present his, the

15 accused's case in chief." In that case a proper -- a Trial Chamber

16 properly considered that the equality of arms meant that the Defence

17 should have the same time to present his case as the Prosecution had to

18 present theirs. And, you know, I ask the question, is there one rule for

19 Slobodan Milosevic and another rule for Naser Oric? Surely not.

20 In terms of the summary, though --

21 JUDGE AGIUS: There is one rule, it's equality of arms, which I

22 can tell you straight and plain from the very beginning, cannot be

23 measured by the number of witnesses, by the same number of witnesses or by

24 the same time or by the same number of hours. It is not qualified by

25 numbers, Mr. Jones, nowhere in the world.

Page 9059

1 MR. JONES: But surely it's not one week for us and eight months

2 for the Prosecution.

3 JUDGE AGIUS: No one spoke of one week, Mr. Jones.

4 MR. JONES: In terms of these -- the points made by -- in the

5 report, firstly we didn't say that we had a list of 200 witnesses. It's

6 that we interviewed more than 200 witnesses and that we've trimmed the

7 number down, a small qualification but an important one.

8 JUDGE AGIUS: Yes, no, that's very important.

9 MR. JONES: We didn't maintain that we have to call one witness

10 for each unit involved in each action. We pointed out that, for example

11 in Bijelovac, if there are 15 units which are alleged to be under the

12 command of Naser Oric, that of course, we have a right to bring evidence

13 concerning whether that unit was actually present, whether they were under

14 Oric's command or something else. And the idea that two witnesses which

15 we were told we could have for each action, the idea that they could cover

16 what 15 units were doing in an area of several kilometres square is not

17 adequate. So we weren't saying we need one witness per unit --

18 JUDGE AGIUS: Let me stop you there because I am sure that this

19 will be reflected later on in your submissions. The way it was put to you

20 yesterday may have led you to understand that we were limiting you by

21 numbers to each and every incident et cetera.

22 MR. JONES: Yes, two witnesses per action.

23 JUDGE AGIUS: That's not what we meant. What we meant was that in

24 our considerations having gone through your document, we were under the

25 firm conviction that that particular area of the indictment could be

Page 9060

1 covered by two or three witnesses. That is our own exercise. You are not

2 going to be limited by a number to each and every incident that arises out

3 of the indictment but you are going to be limited by the number of

4 witnesses that you will be allowed to bring forward. And how you

5 distribute that, how you present your Defence, is none of the concern of

6 this Tribunal but before we could come to the conclusion as to how many

7 witnesses to allow you to bring forward, considering also that we are

8 enlisting a large number of facts and issues which we feel there is

9 absolutely no need for the Defence to bring forward evidence about, that

10 would give you more than ample opportunity to defend your client as -- in

11 the best possible manner. So.

12 MR. JONES: Yes, we --

13 JUDGE AGIUS: Avoid -- I know it was put to you the way it was put

14 and the way it is reflected, but it is not the intention of the Trial

15 Chamber to tell you with regard to the attack on Jezestica, two witnesses,

16 that's up to you. But we are going to tell you, as regards the entire

17 indictment, you are going to have this much and not more. And not only we

18 have to do that but it is put on us as an obligation by our Rules.

19 MR. JONES: Yes, Your Honour. I'm aware of that. I'm grateful

20 for that clarification. There's -- all of these matters are matters which

21 my colleague will address and I myself will address at a certain moment.

22 JUDGE AGIUS: But I wanted to make this -- this clear.

23 MR. JONES: I almost feel obliged pre-emptively to make now, which

24 is just to dispel any of -- of unreasonableness on our -- our part, just

25 to observe that in the Kordic case, the Defence had 62 per cent of the

Page 9061

1 time allocated to the Prosecution; Galic 75 per cent; Stakic 83 per cent.

2 JUDGE AGIUS: Mr. -- Mr. Jones, is it true that yesterday you told

3 Mr. Von Hebel that it is not possible to compare this case to other cases,

4 since each Defence strategy is different?

5 MR. JONES: Absolutely.

6 JUDGE AGIUS: Then let's not make comparisons.

7 MR. JONES: Your Honour made the point that this was the first in

8 which --

9 JUDGE AGIUS: It is the first case, yes.

10 MR. JONES: -- to why --

11 JUDGE AGIUS: Let's not compare --

12 MR. JONES: Already made of that.

13 JUDGE AGIUS: That's not a comparison. That's a statement of

14 fact. Let's not make comparisons; we are not interested in comparisons.

15 You will not be given so many witnesses and not more or -- and so much

16 time and not less or more because that was the case in the other cases.

17 You will be given a maximum number of witnesses which you can bring

18 forward and a maximum time within which to conclude your case because we

19 have studied what you have submitted, we have studied the rest of the

20 case, and we are sure that we can have you complete your exercise of

21 defending your client within the limits that we will be imposing.

22 MR. JONES: Yes, and Your Honour appreciates that we are convinced

23 that with current indications we cannot present our case fully.

24 JUDGE AGIUS: That's up to you. You have every right to appeal

25 our decision when it comes down.

Page 9062

1 MR. JONES: Yes, we will need a decision.

2 JUDGE AGIUS: But you will need a decision and you will have it on

3 writing. But, of course, on Monday we start.

4 MR. JONES: We may not call any evidence at that point if we --

5 JUDGE AGIUS: That's up --

6 MR. JONES: Appealing the decision.

7 JUDGE AGIUS: That's up to you, Mr. Jones.

8 MR. JONES: If we are appealing the decision, Your Honour, we need

9 to have time to appeal your decision and then have the decision --

10 JUDGE AGIUS: No, Mr. Jones.

11 MR. JONES: Indeed.

12 JUDGE AGIUS: You will do what we say. You -- we will fix Monday

13 for the first day of hearing witnesses and if you don't bring witnesses,

14 you will -- you will need to consider what the consequences will be.

15 MR. JONES: Your Honour, if we are appealing we have a right to

16 appeal your decision.

17 JUDGE AGIUS: Yes, but there is.

18 MR. JONES: You can't order us to bring witnesses when there is an

19 appeal pending.

20 JUDGE AGIUS: There is nothing, Mr. Jones, that would stop us

21 proceeding with the case according to our decisions and in the meantime

22 the Appeals Chamber will have an opportunity to decide. If they decide in

23 your favour, we will prolong the case for the Defence. If they decide in

24 favour of our decision, then obviously, if you haven't adduced evidence in

25 the meantime, you have a big problem on your plate.

Page 9063

1 MR. JONES: Or Your Honours have that problem.

2 JUDGE AGIUS: Yes, yes, yes.

3 MR. JONES: Well, frankly, it doesn't work that way because if we

4 only have a certain amount of time to bring witnesses we need to know that

5 before we start because if we call four witnesses in the next two weeks

6 and then we are told that in fact the Appeals Chamber upholds your

7 decision that we have a very small period of time to call witnesses, maybe

8 we wouldn't have called those four witnesses but called other ones. So of

9 course it prejudices us deeply to have to call witnesses when we have an

10 appeal ending saying that we should have more time.

11 JUDGE AGIUS: That's your point. Do it whichever way. We are --

12 I'm telling you it's -- the way you conduct your Defence is your problem,

13 Mr. Jones, and that of Madam Vidovic. It's none of our concern. We will

14 give you a time limit. We will give you a number of -- maximum number of

15 witnesses that you can call. The rest is in your hand.

16 MR. JONES: But it's not --

17 JUDGE AGIUS: Monday we start. You make your own calculations and

18 your own guesses but if your calculations go wrong, if your calculations

19 go wrong, then it's your client who is going to suffer. Think twice

20 before you jump to conclusions as to what you're going to do on Monday

21 after that we have handed down our decision.

22 MR. JONES: Yes, but please think twice before riding roughshod

23 over the right to a fair trial.

24 JUDGE AGIUS: Yes. We are not running roughshod. I take

25 objections to your assertions, allegations, just as much as I take

Page 9064

1 objection to the allegation that we are putting the completing --

2 completion strategy above our considerations of securing to your trial --

3 to your client a fair trial.

4 MR. JONES: Your Honour said as much --

5 JUDGE AGIUS: It is extremely undignified. It is extremely

6 undignified even to hear that being said in open court.

7 MR. JONES: Your Honour, you said as much in a meeting with the

8 parties that we had to consider, and you pointed to your colleagues, you

9 said you must consider the Security Council may not extend the -- may not

10 extend the times of my colleagues.


12 MR. JONES: You put that to us as a reason why the trial might be

13 shortened. So it is -- Your Honour has told us it's a factor.

14 JUDGE AGIUS: But you suggest, Mr. Jones, that if I come to the

15 conclusion that if it is not possible to conclude this trial within the

16 time limit set by the Security Council, I will feel in conflict with

17 myself, and I will not recommend the extension of the term of office of

18 the two ad litem judges. And if you -- if that's what you think of me and

19 of this Trial Chamber, you are completely mistaken, Mr. Jones, and I never

20 expected this from you. And I will not say anything more except that it

21 is also very undignified on your part and it doesn't do you any good to

22 throw shadows and cast doubts on the integrity of the President of this

23 Tribunal who would, like me, according to you, sacrifice your client's

24 right to a fair trial simply because he has written a letter to the

25 Security Council recommending the extension of the two ad litem judges

Page 9065

1 till a certain time --

2 MR. JONES: Your Honour, of course, I'm not casting --

3 JUDGE AGIUS: To suggest -- to suggest --

4 MR. JONES: -- doubt on his integrity.

5 JUDGE AGIUS: You have --

6 MR. JONES: That's absurd, Your Honour. What I'm hearing is

7 you're saying that he has already taken a position --

8 JUDGE AGIUS: Mr. Jones, you have said --

9 MR. JONES: -- and therefore I would apply for his --

10 THE INTERPRETER: Excuse me, Your Honour, it is impossible to

11 translate this. Please slow down. Thank you very much.

12 JUDGE AGIUS: Mr. Jones, you said that you will be mincing your

13 words. To say, to tell the Tribunal that what we are saying is absurd is

14 undignified on your part, and we will not accept such language to you.

15 MR. JONES: My apologies, Your Honour. If I may continue.

16 JUDGE AGIUS: Then let's -- yes, of course, we expect you to

17 continue.

18 MR. JONES: Yes. The other -- the other point is that Your Honour

19 has said that -- said that -- Your Honour has indicating you're heard

20 enough on certain matters means that we can therefore not bring evidence

21 on these matters.

22 JUDGE AGIUS: I can explain. I will explain.

23 MR. JONES: But, Your Honour, may I make one point in that

24 regard. In my system, certainly, if a judge says you needn't bother me

25 with that, that means you've won on that point.

Page 9066


2 MR. JONES: It means you don't need to bring evidence.

3 JUDGE AGIUS: That's what we mean, yes.

4 MR. JONES: Well, in the 98 bis judgement all we have is a finding

5 that there was a siege, not particularly that it was imposed from the

6 towns and villages in the indictment and that therefore we didn't -- don't

7 need to bring evidence concerning starvation, et cetera. Now, what we

8 need in order to actually be able to rely on findings by the Chamber, that

9 we don't need to bring evidence, is a finding saying we find there was

10 artillery in Siljkovici. We find that the Serbs in Kravica expelled their

11 neighbours and had a strong military presence there and therefore the

12 Defence needn't both to bring evidence.

13 JUDGE AGIUS: You are right. What the points that we will be

14 confirming again in open court today, when we spell them out to you and

15 then you will have them in writing, means, yes. It doesn't mean that we

16 don't want you to bring evidence. It means that we have heard enough

17 evidence, the evidence comes from the Prosecution case, and that includes

18 also questions -- answers upon questions upon cross-examination, and we

19 feel that these areas have been completely dealt with and they all go in

20 favour of your client and not against. So you have our commitment that on

21 those issues, nothing remains open. Those issues are clear in our minds.

22 We will have a commitment with the Accused when we come to final

23 judgement, that not a single one of these issues will be put in doubt. In

24 other words, that will be a confirming them as facts that have been

25 sufficiently proved to our satisfaction at the end of the Prosecution

Page 9067

1 case. It goes beyond what was said in Rule 98 bis because for the purpose

2 of the Rule 98 bis it's not only a declaration as to what facts emerge,

3 result, to the satisfaction of the Tribunal. But for the purpose of Rule

4 98 bis we were dealing with six counts, with the elements relating to each

5 of the six counts. So when we say that there is sufficient evidence on

6 the basis of which we can go -- we can proceed with count 1, or count 3 or

7 count 5, it means basically we can -- but now we are telling you after

8 that we have decided the Rule 98 bis that there are various areas that we

9 needn't hear any further evidence.

10 MR. JONES: Yes, but you see -- yes, but we need, of course, to

11 hear from the -- or to see the order of the Chamber so we actually know

12 what precisely the finding is. Because to say we've heard enough

13 evidence, is that because it's considered irrelevant or because the

14 finding is X or Y? Just with agreed facts, we need to know precisely what

15 the Trial Chamber has found so we can work out whether we still need to

16 add to it somewhat or whether -- I appreciate -- the principle is clear

17 and acceptable that once something has been found judicially we don't need

18 to litigate it any further. But current indications were not sufficient

19 to allow us to proceed on that basis.

20 JUDGE AGIUS: Yes, and I also understand and grant you

21 unconditionally that in this respect you are 100 per cent right. In other

22 words, when we tell you, for example, we don't need to hear further

23 evidence on the fact that Srebrenica was under siege from, I don't know

24 when until I don't know when, continuously, and that it was being

25 continuously bombarded by artillery and from the air, we are committing

Page 9068

1 ourselves with your client that that is our finding. If, however, there

2 is any area arising out of this finding of the Trial Chamber that doesn't

3 satisfy you or which you think might still leave you exposed later on,

4 then it is your duty to indicate it to us, and if we feel that we don't

5 need evidence even on that, we will tell you. If it's the case of

6 allowing you to bring evidence on that particular point, we will open all

7 doors for you. For example -- I mean, I'm sorry I'm interrupting you.

8 MR. JONES: That's fine. It's a useful clarification.

9 JUDGE AGIUS: I think we come from a jurisdiction where we are

10 used to tackle one another in this fashion. For example, you have the

11 first two witnesses, not -- sorry, not the first two witnesses, the

12 seconds and the third witnesses for this coming week; I don't know the

13 names. Anyway, but it's not the lady who will be coming forward to

14 confirm, not Edina.

15 MR. JONES: We weren't sure which witness 3 was referred to.

16 JUDGE AGIUS: The Belgian doctor and the other one who was a

17 member of the SDA and ...

18 MR. JONES: Yes, so you're referring to the Belgian doctor and

19 Mr. Redzic.

20 JUDGE AGIUS: I don't know the name. I mean don't -- I'm hopeless

21 at names. We are going to tell you we don't need to hear evidence on

22 several issues but many of these issues are already included in what these

23 two witnesses are going to testify, and we are going to allow those two.

24 We are going to allow those two so that we will have a clearer idea

25 whether there are areas where we are sort of closing doors where we would

Page 9069

1 need to open them. If we would need to open them, we will open them, but

2 if we don't need to open them we are not going to let the resources of

3 this Tribunal be spent. You are being paid money that is being paid by

4 other countries, including your own. I and my colleagues are being paid

5 money by other countries, and every single person in this courtroom, with

6 the exception of interns who pay their own way, is being paid by the

7 international community. So please do understand that if I am being hard,

8 if my colleagues with me are being hard, if we are imposing a time limit,

9 if we are imposing a limited number of witnesses that you can bring over,

10 it's not because we wouldn't like or love to tell you, let's take the case

11 until you are completely satisfied that you have brought forward the last

12 of the witnesses that you would feel comfortable to bring forward. It's

13 because we have a responsibility.

14 MR. JONES: Well, Your Honour --

15 JUDGE AGIUS: And if the same point can be proved by two

16 witnesses, we have a responsibility to tell you, please, Mr. Jones,

17 refrain from bringing the third and the fourth and the fifth and the

18 sixth.

19 MR. JONES: I'm aware of that, Your Honour, but then we do wonder

20 why the Prosecution's case went on for eight months with witnesses giving

21 evidence for days and days where we are being allocated according to our

22 calculations about 2.5 or three hours per witness.

23 JUDGE AGIUS: Because we have experienced enough, Mr. Jones, to

24 realise that what was going on was going to make your case much more

25 simple. And the fact that -- you should be the first one to realise that

Page 9070

1 the Prosecution case has ultimately made your case much more simple.

2 MR. JONES: Yes. And indeed I appreciate that. But there is a

3 related point which I was going to address which was this: That the

4 reason also why we need findings by the Chamber is because it has an

5 application for the credibility of Prosecution witnesses, and that's one

6 of the reasons why we want to address these issues. Because if you have a

7 Prosecution witness who says "I was in the village minding my own

8 business. There were no -- there was no military, no soldiers, no

9 artillery," and we want to prove that there was to show -- to impeach

10 their credibility. If Your Honours say we have enough evidence to --

11 JUDGE AGIUS: We don't have enough evidence -- we are not going to

12 tell you that we have enough evidence on this ----

13 MR. JONES: Then their credibility remains unimpeached when we

14 have a right to impeach it.

15 JUDGE AGIUS: No, no. You are going to be allowed to bring your

16 witnesses with regard to the credibility of witnesses that the Prosecution

17 have brought forward. We are never going to tell you, listen, we don't

18 need to receive evidence on what happened in Fakovici during the alleged

19 attack of the - I don't know which date - or Jezestica what happened on

20 the -- during the attack on Jezestica on such and such a date. We are not

21 going to make assumptions there and we are not going to make any findings

22 there. We will make findings after we have concluded your case and we

23 come to the final deliberations. What we are going to tell you we needn't

24 hear any more about are factual matters that we believe have been more

25 than sufficiently covered already by previous witnesses, both as a result

Page 9071

1 of the examination-in-chief, so I want to make myself clear, and also as a

2 result of the questions that the Defence put in cross-examination.

3 MR. JONES: I think just after we revisit that issue, if I may

4 just finish clarifying the notes of the summary of the meeting. It's also

5 not the case that we said that we have a right to attack every single

6 point that the Prosecution ever made. It was really --

7 JUDGE AGIUS: I'm glad to hear that.

8 MR. JONES: -- a slightly more nuanced point than that. It's a

9 point that something which may seem small may be a link in a chain, and so

10 we want to knock out that link rather than just leaving it there, and even

11 if it seems small. And secondly, and this goes back to the last point, if

12 a Prosecution witness completely implausibly states that there was no

13 military presence in his village in, let's say, April 1992, long before

14 the actions, and we can prove that there absolutely was, then of course we

15 have to be able to prove that to show that witness is not credible.

16 JUDGE AGIUS: What are you referring to?

17 MR. JONES: I'm referring to us addressing issues which may not go

18 directly to the core of the case for example whether there was --

19 JUDGE AGIUS: Which point are you referring to, because I don't

20 recall having mentioned that myself.

21 MR. JONES: It was the fifth point of the summary of Mr. Von Hebel

22 that we were insisting on our right to attack every matter mentioned.

23 JUDGE AGIUS: Every portion, even minor, to attack whether -- and

24 challenging --

25 MR. JONES: Yes, may collaterally attack something to show that a

Page 9072

1 witness is not credible.

2 JUDGE AGIUS: That's way -- of course, we are not going to stop

3 you when it comes to the credibility of witnesses, Mr. Jones. It would be

4 absolutely crazy to tell you we believed this witness and we believe the

5 other witness and we believe these witnesses and you are not going to

6 bring evidence to prove the contrary.

7 MR. JONES: That's why we are saying we need more time.

8 JUDGE AGIUS: No, but we have made our calculations, Mr. Jones.

9 MR. JONES: The sixth point was that I didn't say that there was

10 no affect on the plunder charges being dropped. But it was that there was

11 not a great difference made by that, because all the actions remain and so

12 we would have had witnesses covering wanton destruction and plunder again.

13 JUDGE AGIUS: I'm also glad to hear that.

14 MR. JONES: Finally, I think there were just a couple of points.

15 I think the seventh point was that -- was to do with the siege that --

16 Your Honour is accepting that there was a siege, again perhaps I made this

17 point, but we are not content with finding that there was a siege without

18 it being clear that the very villages in the indictment were the siege.

19 It's being -- it's the fact of being surrounded by hostile villagers and

20 hostile villages or village guards or Italians.

21 JUDGE AGIUS: That is going to be granted to you, Mr. Jones, so

22 you don't need to worry about it.

23 MR. JONES: The places in the indictment. That's the point.


25 MR. JONES: And finally, just on appeal, I do want to make

Page 9073

1 absolutely clear that when I say we would have to apply or possibly might

2 apply to disqualify a judge, it's the appearance of justice and the fact

3 that if a judge seems to have taken a position in the litigation due to a

4 prior association that we could consider applying for them not to sit on

5 the appeal ... But that's not -- it's not an attacking their integrity.

6 It's a very common place occurrence, one can think of Lord Hoffman in the

7 House of Lords in the Pinochet case.

8 JUDGE AGIUS: That's not the way it was put to us, Mr. Jones. You

9 know that the composition of the Trial Chamber almost exceptionally

10 includes the President himself.

11 MR. JONES: It's a question of writing about the length of the

12 trial before we had made our opinions clear on how long we thought our

13 trial would be and that might reflect a --

14 JUDGE AGIUS: The President acts on my advice. The President acts

15 on my advice, which changes from time to time according to the

16 circumstances. If you were to convince me today that you need another

17 year to conclude your case I may grant you another year.

18 MR. JONES: We may yet consider --

19 JUDGE AGIUS: But if I am convinced that you need one week, I will

20 not grant you more than one week. When I say "I," it doesn't mean I. I

21 mean, I have a habit of saying "I." I don't mean to -- I can assure you

22 that in all these matters we are in constant consultation, Judge Eser and

23 Judge Brydensholt, and we all agree on one part, on one thing, and that is

24 you will get all the time that you require. But we decide the time that

25 you require.

Page 9074

1 MR. JONES: And we have to decide if that's sufficient.

2 JUDGE AGIUS: Yes, of course. I mean, of course. I mean

3 that's ...

4 MR. JONES: Finally that just brings me possibly to the last point

5 which is that certainly while we stated that we may present no evidence

6 because if I may present a metaphor which occurred to me in this context,

7 litigation is often compared to a tennis match, and we -- and this -- this

8 is currently the second week of Wimbledon, that if one had a match in

9 which the Prosecution is presented with a brand new racket and we were

10 presented with a racket with a few strings that have been snipped and half

11 a shaft, and told, "Go ahead and play," who would play under those

12 circumstances? Those watching the Trial or the match are not going to see

13 that we've got half a racket; they are just going to see us losing. And

14 another analogy, it's as if one had a budget of a 100 dollars for rackets

15 and 80 dollars goes to the Prosecution, 20 dollars to us - that's the

16 eight months and two months - who would play under those circumstances?

17 And so when we say that we may not call evidence, we mean that we -- it's

18 not in our view better to have ten witnesses or 20 witnesses or no

19 witnesses. It may be better to bring no evidence whatsoever. But

20 certainly, it's no not a position that we would withdraw. We're not going

21 to leave our client high and dry under any circumstances. So I want that

22 to be clear.

23 JUDGE AGIUS: I am sure of. That -- even if I were told -- I was

24 told yesterday that at the end during an apocalyptic sort of fit, you said

25 you might even consider withdrawing completely from the case. I know who

Page 9075

1 I am dealing with. So I know your great sense of responsibility,

2 Mr. Jones, and that's because I'm addressing you, but I also know the

3 great sense of responsibility of Madam Vidovic as well.

4 MR. JONES: Much obliged, Your Honour.

5 JUDGE AGIUS: And I want to make it clear that I also know that in

6 your heart of hearts, you know what the consequences would be if you

7 decide not to bring forward evidence. It's ...

8 MR. JONES: It depends on how strong the Prosecution's case is at

9 this point in time.

10 JUDGE AGIUS: Yes, of course, but if -- it depends on how strong

11 the Prosecution case is. But then, if you feel that the Prosecution case

12 is not strong, you don't come forward with 73 witnesses. And if you feel

13 that the Prosecution case is strong, you don't think of providing or

14 offering as a solution the -- not bringing any witnesses at all. So I am

15 sure that we can talk sense and that we will approach this and finalise

16 and come to a conclusion in a rational manner.

17 MR. JONES: May I say one thing?

18 JUDGE AGIUS: I'm also sure that you will of course have ample

19 opportunity to go to the appeal if our decision will not be to your

20 liking. But we are also making it clear that we have a responsibility to

21 go forward.

22 MR. JONES: May I say one thing before we move on to the next

23 stage of this, which is just that we are not calling 73 witnesses because

24 we think the Prosecution case is strong. My 98 bis submission was this

25 whole case should have been thrown out and I stand behind that 1.000 per

Page 9076

1 cent. We are calling 73 witnesses because we think the account which was

2 presented by Prosecution witnesses is so false in its entirety, and this

3 is Srebrenica and the 10th anniversary of the genocide of which is coming

4 up, that this Tribunal has a truth-finding role which Your Honour has

5 repeatedly emphasised. And to do justice to that, we need to correct that

6 picture. But this is certainly not because we think the Prosecution

7 evidence is strong.

8 JUDGE AGIUS: This is what is worrying me, Mr. Jones, because

9 reading through the lines of Mr. Von Hebel's report, and also listening to

10 what he had to tell me upon questions that I put to him, I got the

11 impression that you think that it is possible for you to turn this trial

12 towards particular direction, which I am telling you straight and plain we

13 are not interested in.

14 MR. JONES: We've repeated -- we've said I don't know on how many

15 occasions, we're not -- we have no political agenda. We're not trying to

16 show anything about 95. My point is this, and it's perhaps --

17 JUDGE AGIUS: What do you mean by 95?

18 MR. JONES: May I, Your Honour? Perhaps it's met by the

19 suggestion that Your Honours will actually make findings. But as things

20 currently stand and as things currently stand we are proposing 73

21 witnesses because we say there is this complete false account from 92, 93,

22 and what was happening in Srebrenica, the whole context of which is

23 absolutely relevant for Article 73. I'm sorry, this isn't a case of "Did

24 our client pull a trigger or not," it's a case of whether he had control

25 over thousands of people. And the context I'm sorry, is relevant to that,

Page 9077

1 and in the context as presented by Prosecution, we say, is completely

2 false. That's why we want 73 witnesses.

3 JUDGE AGIUS: Let's stick to that.

4 MR. JONES: Yes.

5 JUDGE AGIUS: Let's stick to that. We will tell you what you

6 don't need to stick to. And what we will tell you should in your mind

7 rectify what you describe as a perverted description of the events and the

8 real situation.

9 MR. JONES: Yes, we said it from the start.

10 JUDGE AGIUS: What we wanted to make clear from the outset, and we

11 want to send the message loud and clear, that in this trial we are not

12 trying the Serbian forces.

13 MR. JONES: We know no, Your Honour.

14 JUDGE AGIUS: We are not trying the Serbian people. We are not

15 going to issue a certificate of good conduct and of heroism and heroic

16 acts to the authorities in Srebrenica or authorities in Bosnia that lived

17 and fought the siege of Srebrenica. We are not going to hand out any

18 medals. What we have is one single person here, Mr. Oric, that is being

19 charged, stands charged with just four counts now, two relating to

20 inhumane treatment, cruel treatment, and murder which the Prosecution is

21 not alleging that he has committed himself but that he is responsible for

22 under 7(3), and that's the whole thing. I mean whether these people

23 existed, whether these people were inhumanely treated or killed, whether

24 in any case -- in any manner whatsoever, under the law governing 7(3)

25 responsibility, your client could be found guilty or not. We are not

Page 9078

1 dealing now whether your client was the commander of thousands and

2 thousands of troops. We are dealing on whether he had effective control

3 and those two places, over those guards, whether it was possible for him

4 to prevent what happened, if it indeed happened, and if, irrespective of

5 there, whether actually there was a failure on his part to punish, if he

6 was in a position to punish. And that's what we are interested in

7 hearing.

8 MR. JONES: Yes.

9 JUDGE AGIUS: Please don't forget, Mr. Jones, and I'm sure you

10 don't need to be reminded about this, that you don't carry any burden of

11 proof. There is no small item in this case, no issue, which has emerged

12 in such a way that has shifted the burden of proof from the Prosecution on

13 to you, on to the Defence. The same applies to the wanton destruction.

14 If we are talking of military necessity, it's the Prosecution that has to

15 prove military necessity. If the Prosecution has asserted that in the

16 attack on Bjelovac, the following 10, 15 units took part and has not

17 brought one single witness to confirm who was taking part in those units,

18 are you going to bring the evidence yourself?

19 MR. JONES: We were invited to fill in some gaps.

20 JUDGE AGIUS: But are you going to bring the evidence yourself?

21 You don't carry a burden of proof.

22 MR. JONES: We are aware of all these principles, Your Honour.

23 JUDGE AGIUS: The last thing I would want to hear from you is

24 thank you for letting me know this. This is the first time I come to

25 learn about these. I know you know about these things.

Page 9079

1 MR. JONES: Yes. I wonder if I may also call my colleague, we are

2 getting into the substance of these issues now and there is --

3 JUDGE AGIUS: But it will reduce the discussion later in any case.

4 MR. JONES: Yes, but I wonder if my lead counsel could address

5 you?

6 JUDGE AGIUS: No, I was going -- before Madam Vidovic addresses

7 us, we have how many minutes, ten minutes? We can take ten minutes and I

8 will update you on the areas where we are going to tell you that we do not

9 require any evidence from you. So that then you will have the break, you

10 will discuss it amongst you, and you can react afterwards, after having --

11 having, having heard what we have to say. All right? Agreed?

12 MR. JONES: Yes, certainly.

13 JUDGE AGIUS: So these are the areas that we will not require

14 evidence from you. Now, I must make a small caveat. I also said that

15 with regard to certain of these -- some of these matters that I will be

16 mentioning, in actual fact, at the same time we are telling you we don't

17 require evidence. But at the same time we are going to allow you the

18 first two witnesses that are coming next week. I mean, you know the

19 names.

20 MR. JONES: There will be issues of bringing, if it comes to that,

21 bringing different witnesses in the second week.

22 JUDGE AGIUS: Is it Izet Redzic and Eric Dachy.

23 MR. JONES: Yes.

24 JUDGE AGIUS: Okay. So when we read the summary of Izet Redzic,

25 indeed he is going to cover several of the points that we are going to

Page 9080

1 tell you we don't need further evidence from you. In telling you we don't

2 need further evidence from you, we have also taken into consideration the

3 fact that we anticipate this gentleman to testify on those things. The

4 same applies to Eric Dachy, who will be testifying on certain matters that

5 we will be telling you we don't need any further evidence from you. But

6 we are going to tell you we don't need further evidence upon you because

7 already we are satisfied that we don't need further evidence. But we are

8 also satisfied that with the evidence of Dr. Eric Dachy, we will be

9 further satisfied that we don't need any further evidence from you. Did

10 we make ourselves clear?

11 MR. JONES: Yes.

12 JUDGE AGIUS: All right. These are the points. Please make a

13 note of them. I will go through them slowly.

14 Number 1. There is a variation on some of the matters from the

15 way it was communicated to you by Mr. Von Hebel. It's not because

16 Mr. Von Hebel communicated something to you which he was not authorised to

17 communicate, but because we have had discussions, further discussions, and

18 we have had second thoughts about certain issues. We have added a couple

19 of other matters. So let's start from here.

20 The historical and political backgrounds which led to the war in

21 April of 1992. This, we believe we have heard enough.

22 Part of this will also be covered by the witness Izet Redzic and

23 we do not expect you to bring forward any evidence on this.

24 MR. JONES: Your Honour, I'm still confused. Will there be

25 findings?

Page 9081

1 JUDGE AGIUS: Yes, I'm telling you these are going to be

2 findings. These are going to be incorporated in a written decision. It

3 basically means a commitment of this Trial Chamber with Mr. Oric that he

4 will not have to answer.

5 MR. JONES: When I mean a finding [Microphone not activated].

6 THE INTERPRETER: Microphone, please.

7 MR. JONES: When I refer to finding, I mean not just saying that

8 we don't need to hear about it, but saying that we find that the war

9 started when ethnic cleansing occurred in eastern Bosnia, Serb forces and

10 paramilitary, et cetera. A finding to that effect which we could use.

11 JUDGE AGIUS: A finding. For example, you asked about ethnic

12 cleansing. We are going to tell you we don't need any further evidence

13 about ethnic cleansing because we are telling you that we have sufficient

14 evidence in the records of the case, arising from the same evidence of the

15 Prosecution, which shows that there was ethnic cleansing by the Serbs on a

16 large scale in the area relevant to this indictment. Do you want me to

17 say more than that?

18 MR. JONES: We would be grateful to know what the findings are,

19 yes.

20 JUDGE AGIUS: These are the findings.

21 MR. JONES: Okay, well that's --

22 JUDGE AGIUS: We are not going to tell you there was ethnic

23 cleansing in the village of Vlasenica on such and such a date. We are

24 going to tell you there was ethnic cleansing throughout -- before the

25 period relevant to this indictment, during the period relevant to this

Page 9082

1 indictment, and after the period relevant to this indictment because this

2 emerges from the same evidence of the Prosecution. So you don't need to

3 address any -- adduce any evidence to tell us there was ethnic cleansing.

4 We are granting you that there was ethnic cleansing.

5 MR. JONES: I just wish that the findings, those findings being

6 read now so we can actually know what we are dealing with.

7 JUDGE AGIUS: I am going to read them one after the other. There

8 is why I think perhaps we may have been more clear yesterday, but I think

9 we were also not understood completely.

10 So -- so the first is the historical and political background

11 which led to the war in April 1992. In actual fact we are not attaching

12 too much importance to this fact. We find very little relevance for the

13 purpose of this case. But we do have enough in evidence already.

14 The second point is - I go slowly, Mr. Jones - the large number of

15 attacks by Serbs, and when I say Serbs, I mean also Serb forces, all

16 right? By Serbs on villages in the area, including the wanton destruction

17 and plunder of Muslim villages and the laying of mines by Serb forces in

18 and around destroyed Muslim villages and hamlets. This you don't need to

19 address because we are granting it as already sufficiently proved for the

20 purposes of our exercise.

21 The killing and inhumane treatment of Muslims, and that is

22 civilians and non-civilians alike, by Serbs or Serb forces, for whatever

23 it is worth.

24 The policy of ethnic cleansing by the Serbs, and Serbs I mean be

25 it the SDS, the political authorities, and the forces, before, during, and

Page 9083

1 after events in and around Srebrenica, in and around Srebrenica.

2 Next point is general evidence or evidence of a generic nature -

3 that's better English - of positive treatment of Serbs, be they civilians

4 or not, hostages or wounded, in Muslim hospitals, including the one in

5 Srebrenica by Muslims. We don't need to hear evidence on that. But if

6 the evidence that you would like to adduce relates to the persons that are

7 mentioned in counts 1 and 2, then, yes, bring them forward. But if it's

8 in relation to, I don't know which other Serbs, who could be few or could

9 be many, we are not interested to hear more. We have had witnesses from

10 the Prosecution and victims, alleged victims themselves testifying that

11 this was the case. So if you are capable of adducing witnesses testifying

12 about persons that we are interested in, yes. About other persons, we

13 don't want to hear any more. We've heard enough. I hope I am being

14 understood a little bit better than you may have understood yesterday.

15 MR. JONES: Yes, I understand that it's always a positive finding

16 for us when you say [unintelligible].

17 JUDGE AGIUS: Yeah, of course, I mean it's -- otherwise I wouldn't

18 even dare of thinking of telling you, "please don't bring any evidence."

19 Then the situation of Srebrenica during the period relevant to the

20 indictment; namely, that it was cut off from the rest of BiH; that it was

21 under constant siege; that it was sustaining or suffering from air and

22 artillery bombardment. And when I say, I could add "constantly." And

23 also, as regards, as the positioning of the Serb forces in and around

24 Srebrenica. We don't need to hear more about that. And the opportunity

25 that we have had to fly over Srebrenica and even drive around has

Page 9084

1 strengthened our decision to tell you, please, don't bring any more

2 evidence on this. We've heard enough.

3 The refugees problem or problems in Srebrenica, and the critical

4 condition under which the population of Srebrenica had to live during the

5 period relevant to the indictment, and this relates not only to food

6 shortage, which we dealt with for the purpose of Rule 98 bis, but also

7 medical shortages and problems, hygiene issues, security concerns, and we

8 are mentioning security concerns within the context of the

9 macro-understanding of a military necessity. Sporadic electricity and

10 telecommunications shortages. These we are satisfied already with the

11 evidence that we've heard. You don't need to bring us more evidence to

12 tell us that there were thousands of refugees, that they were sick, they

13 were desperate, that -- we know it already.

14 We don't want to hear or receive any evidence on the Srebrenica

15 genocide of 1995.

16 Next, and this is again a little bit different from where you were

17 told -- what you were told yesterday. We don't need to hear more evidence

18 to show that there was a military superiority of the Serbs, namely that

19 the Serbs were better military-equipped than the Muslims and that,

20 furthermore, they benefitted from the support of the JNA, or former JNA,

21 and Serbia, and Serbia. We have enough evidence to put us in a position

22 to tell you and your client you don't need to address this, you don't need

23 to answer this.

24 Next, the Muslim military capability in Srebrenica. This is the

25 conclusion that we come to. The Muslim military capability in Srebrenica

Page 9085

1 was largely dependent on weapons that could be captured from the Serb

2 forces. This is what you were not told yesterday. You are being told

3 today. We don't need to hear more evidence on this. We've heard enough.

4 Then I come to the last point, which is very important and which

5 you need to understand extremely well, not to have any misunderstandings.

6 Reading through your first and second filing, we got, throughout,

7 this -- the impression that you were very much concerned with the

8 importance of proving to us the military necessity that there was to

9 attack these various villages, all of them. We are telling you, you don't

10 need to prove that. We are already granting you that, from all aspects,

11 there was a military necessity and an urgent military necessity. It was a

12 matter of life or death, to go on attack and try to secure food, medicine,

13 weapons or whatever. This we have already told you for the purpose of 98

14 bis, within limited -- a limited context; we are amplifying now because

15 now we are dealing with the entire Defence case. But we also want you to

16 understand very, very clearly that the military necessity that we are

17 interested in for the purposes of counts 3 and 5, 3 and 5, is the military

18 necessity to destroy the houses that the Prosecution alleges to have been

19 destroyed. It's not the military necessity to attack Fakovici or

20 Ratkovici or Kravica or Jezestica. If you lose your time on that, you're

21 free to do it. But you will be missing the wood for the -- the wood for

22 the trees or vice versa, which we don't want you to miss.

23 MR. JONES: We are very clear on that.

24 JUDGE AGIUS: Let's put it clear. We certainly are not telling

25 you, you don't need to adduce evidence or you are not going to be allowed

Page 9086

1 to adduce evidence on the military necessity to burn down or destroy the

2 houses, but we also want you to remember that you don't have the burden of

3 proof, of proving that there was military necessity to do that. It's the

4 Prosecution's burden to prove that there was no military necessity. We do

5 not consider that at any time the onus of proof has shifted from the

6 Prosecution on to the Defence. But you are intelligent enough, both of

7 you and your client is not less intelligent than you are, to realise what

8 kind of evidence the Prosecution has brought forward in this context. So

9 ultimately what we are talking about for the purposes of counts 3 and 5

10 is: Was there indeed the destruction, the wanton destruction, that we

11 have been told by some witnesses of the Prosecution that there was?

12 You're free to address that. Who committed that destruction? Was it

13 civilians? Was it soldiers, fighters? You're free to bring evidence on

14 that, if you feel that you should address it, because you don't have a

15 burden of proof.

16 Were all houses destroyed without any military necessity at all or

17 some of them were the result of collateral damages or some of them may

18 have been destroyed by the Serbs themselves; if you want to bring evidence

19 on that, you're free to bring evidence on that.

20 Was Mr. Oric present during -- at one or more of these actions,

21 you're free to bring evidence on that.

22 Did his presence mean anything for the purpose of 7(1)

23 responsibility or 7(3) responsibility, you're free to bring evidence on

24 that.

25 Was he in command there? Yes, you're free to bring evidence on

Page 9087

1 that. But ultimately, did he have effective control on that? Yes, you're

2 free to bring evidence on that.

3 And then there is of course the question of having failed to

4 punish, which I don't need to address myself. But in reality what I'm

5 telling you is this: When we came to the conclusion that we will be

6 suggesting that there will be so many witnesses and not more, and that you

7 will have so much time and not more, it's because we feel that your case

8 should be limited to what is necessary and not beyond, and we are telling

9 you that as far as military necessity on the macro level, the need to

10 attack Fakovici, you don't need to address it, and the other you don't

11 need to address it. The need to defend Srebrenica at all costs, you don't

12 need to address it.

13 There is one area that was mentioned in your document that I will

14 deal with very briefly. You seem to hint that you want to bring forward

15 and build up the argument that the situation was so bad and became so

16 worse that it seems that people were no longer responsible for their

17 actions, that there was this kind of revenge feeling, and that the people

18 in general behaved in such a manner that they were impossible to control.

19 If that is a submission that you are making, then, okay, feel free to

20 bring evidence, although you don't have a responsibility to -- of proving

21 it. It may at the end of the day remain as a submission, and it's

22 probably better addressed as a submission than by bringing forward someone

23 to present it as a personal opinion. But that's up to you. As I said,

24 the way you conduct your Defence is none of our concern, none of our

25 concern.

Page 9088

1 Then there is one final minor thing that will of course need to be

2 addressed first between you and later on you will inform us. There is one

3 witness that you want to bring forward, allegedly to confirm that he shot

4 a video, a particular video, Pantus [phoen] or whatever. If that is the

5 sole purpose of bringing him over, we don't need him. Especially if the

6 Prosecution accepts the authenticity of that video. If the Prosecution

7 has an objection to the authenticity of that video, yes, then please bring

8 him over. Same applies to someone, some German fellow, who according to

9 you took some photos. Again, if they are being contested as non-authentic

10 by the Prosecution, then bring forward this -- that witness. If not,

11 please don't bring him forward. We don't need him.

12 I will not tell you whether we would need him or whether we would

13 stop you if you brought Mr. Pantus to confirm that, yes, this is

14 Srebrenica that you are seeing in this film. Yes, these are refugees

15 eating in the streets in the cold of the night with fire. I don't know;

16 if you need him to prove what we have already told you we don't need to be

17 proved, bring him over. But it may cost you precious time that you might

18 need for another witness. So at the end of the day this is the exercise

19 that you will need to do. I think we have been more than clear, more than

20 clear.

21 MR. JONES: Yeah, that is clear. We do have to obviously consider

22 various matters and there are additional matters of how the calculation

23 has been done of how many days and hours we sit, how much time we would

24 have for filing a final brief. There are a number of other concerns

25 totally independent from this but we will discuss this issue.

Page 9089

1 JUDGE AGIUS: We will have a break now. I have to put a smiling

2 face to the interpreters and technicians. I have abused of your patience

3 but you realise as much as we do that we have a very important matter

4 today on our agenda that we need to bring to a close. Please bear with

5 us.

6 I know that you are not going to be paid more or that it will not

7 earn you any medals but, please, I thank you and please bear with us.

8 Thank you.

9 I think we can take -- we can have half an hour, half an hour. Do

10 I expect any long interventions from your part?

11 MR. WUBBEN: Not an intervention as such but there will be a

12 response. And we consider it.

13 JUDGE AGIUS: Yes, of course. Thank you.

14 --- Recess taken at 4.00 p.m.

15 --- On resuming at 4.36 p.m.

16 JUDGE AGIUS: So let's continue where we left from.

17 Mr. Jones, Madam Vidovic, would you like to take the floor now or

18 would you also like to know the rest of what -- for the time being we

19 propose to do and that we could change after having heard you? It's up --

20 it's just the same. More or less, you tell me what your preferences are.

21 We could tell you how many witnesses we have in mind, we could tell you

22 what length we consider adequate, and under what conditions. I mean --

23 but it's up to you. I mean, we can leave them until later.

24 MS. VIDOVIC: [Interpretation] Your Honours, perhaps it would be

25 useful for you to hear me first. I'll be brief. I don't wish to repeat

Page 9090

1 anything that my colleague has already said, because what I have heard so

2 far has made things much clearer to me now. First of all, before I move

3 on to the matter in hand, I should just like to mention that yesterday at

4 the end of the session, I told Mr. Von Hebel, and I don't think my

5 colleague, Mr. Jones, was present at that point in time, that we are

6 either going to be given the necessary time for our Defence case or we are

7 not going to go ahead. That is the truth. That is what I told Mr.

8 Von Hebel, and I'm just -- it's not something that Mr. Von Hebel thought

9 up himself. I really did tell him that. I said that. And I said that

10 because I was shocked by the fact that of the 72 witnesses proposed, we

11 were given the proposal of bringing forward 19 witnesses. Of course,

12 Your Honours - and you must understand me - I am very worried because I

13 have a lot of responsibility on my shoulders to bring this case to a

14 close, to see it through, together with my colleagues in the interests of

15 our client, the Accused.

16 I was very much concerned, especially concerned, about the matters

17 that you said you did not wish to hear any more about, the facts you

18 didn't wish to hear any more about. Because at that point we weren't

19 quite clear of your position, what your position was, whether you thought

20 that those matters, up until that point in time, had been clarified

21 sufficiently or not. And, of course, now the situation is much clearer;

22 so I'm not going to go back to those matters.

23 However, linked to what you said here today, I should like to say

24 several things, for example, with respect to ethnic cleansing. This is

25 what can happen. I wish once again to reiterate and underline the fact

Page 9091

1 that at no point was it our intention to present evidence and adduce

2 evidence about everything that happened not only in eastern Bosnia but

3 elsewhere as well, but when it comes to ethnic cleansing what will happen

4 will be that this will overlap and coincide with several attacks are the

5 subject of the indictment that is the first attacks. And so faced with a

6 situation of that kind we are going to have to show you the context of the

7 events themselves, or the event itself, especially as some of those

8 ethnic -- instances of ethnic cleansing and the circumstances surrounding

9 them will have direct consequences on what happened later when it came to

10 the destruction of villages. So please understand us that we will only do

11 this when it is absolutely necessary and relevant to establishing the fact

12 of the military justification for burnings, not attacks but burnings, or

13 if it is linked to any particular individuals, people, who were involved

14 in these concrete attacks, and they were involved in specific ethnic

15 cleansing or if it has something to do with the witnesses' credibility.

16 And the same is true for the Serb attacks, because some of these

17 individual attacks, or rather, the results of individual Serb attacks

18 resulted in a counterattack in individual cases, a counterattack which is

19 considered as an attack and is to be found in a count of the indictment.

20 And I'm sure that you will recall that we presented certain documents on

21 matters of that kind.

22 Also, with the question of siege, we are going to mention some

23 Serbian villages which were listed in the indictment and which are a part

24 of the siege if this is relevant to ascertain and establish the events

25 linked to the burning and arson.

Page 9092

1 Now, what I am worried about at this point in time and why I asked

2 to take the floor before we hear your decisions as to the number of

3 witnesses, is this: For about eight months now we have listened to the

4 Prosecution case and it was presented on the basis, among others, of

5 paragraph 27 of the indictment. We simply cannot close our eyes to the

6 fact that paragraph 27 of the indictment, which is to be found on page 7,

7 states that the Muslim side, or, rather, Muslim forces, from the units in

8 the municipalities of Bratunac, Srebrenica and Skelani, burnt and

9 otherwise destroyed a minimum of 50 predominantly Serb villages and

10 hamlets, and we have heard a series of witnesses here who did not only

11 speak about the problems of these 13 villages listed in the indictment but

12 they also spoke about Zaluzje, they spoke about Podravanje, they spoke

13 about Azlica and Spat, and Obadi as well, and when we objected, and lodged

14 our complaints, I'm sure the Court will remember, when we objected to the

15 relevance of adducing evidence of this Court, the answer we were given was

16 that it was relevant because the Prosecutor has the right to establish and

17 prove like attacks.

18 We cannot forget this part of the indictment and have to respond

19 to it. So that is just one segment which prompted us to propose a certain

20 number of witnesses.

21 JUDGE AGIUS: I have to interrupt you here. Are you putting on

22 the onus of proving what the Prosecution may not have proved? Why do you

23 say that you have to address this? Is your client being charged with

24 this? He's only being charged under 3 and 5 of those -- three, four

25 places with the adjacent hamlets. That's what we are interested about. I

Page 9093

1 don't -- I'm telling you, we don't care about what happened in other

2 places. It's none of our concern. It may come to serve only if it is

3 necessary as a system of conduct. But do you have to address it? Why do

4 you have to address it?

5 MS. VIDOVIC: [Interpretation] Your Honour, what you have precisely

6 said is our concern, because we wish to prove the contrary, except if you

7 are prepared to accept that thus far it was not systematic conduct that

8 was afoot, and that it wasn't an example, the pattern -- as you know, the

9 pattern of behaviour, the pattern of conduct, that's one aspects. The

10 other aspect that I'm even more concerned about is this: It is the

11 question that we cannot bypass. That in some of the attacks, in certain

12 attacks, in the majority of attacks, especially in paragraphs 33 and 34,

13 those there, a whole series of units are mentioned. First of all, the

14 question of the subregion is mentioned and we have to deal with that

15 absolutely because that implies the responsibility and accountability of

16 our client, whether something like that existed and functioned or not,

17 because it places him in command of the whole region, if it does, and

18 within the frameworks of that, a whole series of units for which we claim

19 that a number of them were not there at all, that they were not present

20 where the Prosecutor says they were in the indictment, and concerned in

21 the events. Whereas some other units which perhaps were present have

22 absolutely nothing to do with our client or his subordinates. So that is

23 what guided us to propose a larger number of witnesses, to put them

24 forward.

25 Now, I can agree that it would appear that certain witnesses are

Page 9094

1 being multiplied and appear again and again. But if you look at this more

2 closely, you will see that each witness speaks about his own unit. You

3 saw the area yourselves. It is inaccessible, an inaccessible area, and it

4 would be far easier for me if I would be able to cover all these attacks

5 with just two witnesses, but it is just not possible. Especially for

6 Bjelovac or Kravica or some other region, people who come from different

7 enclaves to testify about one or two events and the possibility of my

8 client to control them, his presence or the lack of his presence there.

9 So please understand us. It would be far easier for us if you were to be

10 able to do this with as few witnesses as possible. But it is not possible

11 to do it with a small number of witnesses and you wouldn't have justice

12 prevail if you did not allow us to show and demonstrate that our client

13 was not in a position to control those units, as my first point, or that

14 they were not under his control at all, or that the units were not

15 subordinated to him in any way. I just cannot allow myself that luxury so

16 please, would you consider the matter again? We are going to study the

17 matter fully and we will do our best, wherever possible, to adhere to Rule

18 92 bis whereever possible. But also you must understand that we have been

19 given very little time and in the space of two months we just will not be

20 able to present our case.

21 And just two more brief points, yesterday we raised the question,

22 we said that we were not able to come by witnesses in the structure of

23 witnesses that were listed, we noticed that we were not able to get two

24 important categories of witnesses. The question of the authenticity of

25 documents at this point in time and in this case is a crucial issue, and

Page 9095

1 you told us in the beginning, when we were not prone to do this, and I

2 don't think we should have accepted it, but we did accept it, that is to

3 say that quite simply evidence is adduced without being confirmed by

4 witnesses. We would like to show a certain number of documents or

5 categories of documents to individual witnesses and for that we will

6 require time. So we do have the 19 witnesses but we don't have the

7 necessary time to adduce documents which we find indispensable to present

8 the authenticity of defence. And the problem of Hamid Salihovic [phoen]

9 and his documents is a very crucial problem, and any judgement without

10 clarifying those issues will not be tenable. So it is in our interests,

11 as it is in the entire -- in the interests of the entire trial, to clarify

12 that particular matter.

13 Also, the question of witness credibility. Now, why, in our

14 cross-examination, we asked many questions about ethnic cleansing?

15 Because with the first witnesses that came in, we noticed that they are

16 giving a completely distorted picture of all this to the Trial Chamber so

17 once again this boils down to the credibility of the witnesses. And

18 apart from that, you will be able to see that we have very concrete and

19 specific pieces of evidence having to do with the credibility of the

20 Prosecution witnesses, and we even have reason to call witnesses back, and

21 we of course know that expediency is an important matter for this trial

22 and that is why we did not insist upon this; we thought we would be given

23 enough time during the Defence case to adduce that evidence. So I now ask

24 you to allot us as much time as possible for us to be able to challenge

25 the credibility of certain witnesses, even if the Prosecutor does not

Page 9096

1 agree with this. But I have many years of experience as a judge and I can

2 say that I never saw as many witnesses lacking credibility as I have had

3 here. And it is our task to challenge the credibility of the witnesses

4 and so please give us a chance to do that. Give us enough time to

5 challenge the credibility of the witnesses.

6 Thank you, Your Honours. That is what I had to say.

7 JUDGE AGIUS: All right. Basically, I think I have got very

8 little to say about what you have mentioned, Madam Vidovic. You will get

9 all the time that we think, in the circumstances, would be sufficient to

10 address whatever you need to address. I repeat that the line of defence

11 that you would wish to adopt, the areas that you wish to contest to the

12 Prosecution, the emphasis on certain issues that you would like to make is

13 your own decision, and it's none of our concern. We are not concerned

14 with that. What we have done, very simply put, is the following. We have

15 examined each witness, one by one. When I say examined, examined your

16 statement of what the witness you propose would be testifying about.

17 We have taken into consideration all those areas that we told you

18 we don't need any further evidence on these. And therefore, at the end of

19 the day, we have made our calculation, how much time would that have

20 consumed? Also, how many witnesses less would we now need, because we

21 won't need the other witnesses to deal with the various areas we told you,

22 you need not address. And we had a long exercise that we did, together

23 with our very capable staff, in identifying the various areas that you

24 raise throughout the two documents, such as the impossibility or

25 difficulties in securing communications with Tuzla, for example. We are

Page 9097

1 not going to tell you, yes, that's important, that's not important. If

2 you feel it is important, then it's included there and we have kept it

3 there. Where we may be in disagreement is that you think, for example,

4 that you can get one and two and three and four to testify about it, while

5 looking at the summaries, we believe that it can easily be covered by one

6 or by two. We are not going to tell you, bring one or two. We are going

7 to tell you, deal with it in the way that you like, but you are going to

8 have a limited number of witnesses that you bring over -- you can bring

9 over or you may bring over, and a limited time. So if -- you have to be

10 diligent, and you have to do a lot of homework, much more than the

11 Prosecution did, because the Prosecution have a burden of proof and they

12 can bring a mass of evidence and they have to bring a mass of evidence

13 trying to prove their case. You don't have to prove anything.

14 If the Prosecution suggested in the indictment, in paragraph 27 or

15 whatever, that the Muslim forces went all out on 50 fronts doing this and

16 doing that and you don't agree with it, at the end of the day, you're

17 going to put a question to you but do I have to do anything about it?

18 Because your client is not being charged with that. And my experience,

19 and I'm sure everybody's experience in this Tribunal, is that, as we go

20 along with the Defence case and the Defence witnesses, we witness a

21 strengthening of the case of the Prosecution, and that is why, as we go

22 along in other cases, with the case for the Defence, the number of

23 witnesses that the Defence purports to bring forward in the beginning or

24 plans, becomes lesser and lesser and lesser and there comes a day when

25 they will tell you we are not going to bring any further evidence because

Page 9098

1 the same thing would happen to your witnesses as happened with the insider

2 witnesses and happens with the insider witnesses that the Prosecution

3 brings forward sometimes, which remain insider witnesses but end up giving

4 evidence much more in favour of the accused much more than in favour of

5 the case for the Prosecution.

6 So this is the risk. I am not going to get involved in your

7 assessments. But I can assure you, Madam Vidovic, if you wants to deal

8 with documents, authentication of documents, I don't know what you were

9 told yesterday but we gave strict instructions to our senior Legal

10 Officers that we are not clear exactly from the documents that you have

11 filed, which documents we are talking about, because it's been put in a

12 pretty vague manner. If we are talking of specific documents to be

13 contested by specific witnesses then, of course, if you think that those

14 documents are important for your case, bring them over. How long is it

15 going to take to ask a witness, look at this document; do you consider it

16 authentic or not authentic? Do you recognise the signature? What do you

17 have to say? If you're considering a whole category of contesting a whole

18 category of witnesses -- of documents, like all documents coming from this

19 collection or from that collection or from that section, it's up to you.

20 It's none of our business how you conduct your defence. But if you of

21 course decide to bring over those witnesses, yes, we have made a

22 calculation of how many of them there are, and if you're talking of a

23 whole category of witnesses, I mean, if you bring one witness who is

24 strong enough or two witnesses who are strong enough, do you need a third

25 and a fourth and a fifth? But then, if you have six, seven, eight, nine,

Page 9099

1 ten, separate documents, that you need to attack because you feel they are

2 vital for your client's case and you need six, seven, eight witnesses,

3 then bring those seven, eight witnesses and make sure that -- do not --

4 they do not consume of your time more than you need for perhaps more

5 important... This becomes a question of management. Mr. Jones, myself,

6 coming from the jurisdictions that we come from, we carry a lot of

7 responsibility in doing this because if you make a mistake there, your

8 client has had it. I mean, when I say "your client," it's not Mr. Oric;

9 but this is something where you have to be extremely careful.

10 Because you've given a number of witnesses, in my jurisdiction

11 you're even told we don't want to hear this witness and we don't want to

12 hear that witness because we do not consider his or her witness as

13 relevant to any point in issue. We are not telling you that except with

14 that young lady of next week, that -- I don't think we need to hear her.

15 But if you want to bring her over, bring her over, but she will only

16 testify on the things that we are allowing you to bring testimony -- to

17 bring evidence upon. Not on a 15 year old telling us about distinguishing

18 between this paramilitary group and that paramilitary group. Come on,

19 let's -- I don't want to say much but you know, and Mr. Jones knows, what

20 are the points in issue in this case. There aren't many. There are quite

21 few, in fact. They are quite few. And some of them are more crucial than

22 others. And there are areas where obviously the case of the Prosecution

23 may be stronger than others. I'm not going to comment on that because

24 that stands to be seen at the end of the day. But I suppose you are in a

25 position to make an assessment just like we are. Now, today, we are not

Page 9100

1 making our decision on the basis of whether we consider the case of the

2 Prosecution strong here or stronger there or weak here or weaker there.

3 That's, again, something, I say, pleasures yet to come. What we are

4 concerned about is that we don't waste our time and our energy and our

5 resources and that we stick to what is important.

6 I told you, for example, authenticity of a video. I'm telling

7 you, there, I am intervening and I'm telling you if it's just

8 authenticity, don't bring him over, we don't need him but if it's

9 authenticity of a department, it's up to you, make an assessment of

10 whether a document is important for your case. Is it important to bring

11 evidence to contest the authenticity of each and every document that you

12 feel in your heart of hearts that is not a genuine, is not an authentic

13 document, is it necessary? Because you don't have to prove the

14 authenticity of these documents or the non-authenticity of these

15 documents. It's the Prosecution that has to prove their authenticity. So

16 again, it goes -- I am perhaps going beyond what I should be saying, but I

17 don't think we are as yet on the same wavelength.

18 There are -- I understand, I fully understand how you feel about

19 certain things that happened in your country. I know, and I fully

20 understand how you feel about certain things that you think are important

21 for the case. If you continue thinking that way, it's up to you. It's

22 your decision because I told you we are not going to get involved

23 ourselves in what is necessary for your client for your client's defence.

24 That's your problem, not ours, but we have made our calculations. Each --

25 we have a list of the various areas that you have mentioned in -- we have

Page 9101

1 identified them and put them in pigeon holes and we have also the number

2 of witnesses and who they are also, who would, according to your document,

3 be testifying on this and on that. Many witnesses that could cover a

4 series much things, a multitude of things. For example -- I mean, just to

5 give you an example, a witness that would cover, for example, the War

6 Presidency in Srebrenica, we are not taking any assumptions therefor

7 granting you anything. It's up to you. I mean, you know -- is it

8 important? Feel free to bring whatever evidence you want. But if you are

9 clever you will find a witness who will deal with the question of the War

10 Presidency, perhaps the question of the diary that we have had, perhaps

11 the question of the military police, perhaps the role or alleged role of

12 your client in all this, the relationship between the war president --

13 the military police, civil police, authority, and chain of -- if you can

14 kill all those birds with one or two stones, that's up to you. You

15 decide.

16 It's a problem. It's a problem for you, it's a problem for us.

17 What I can tell you is that we have made our assessment in -- without --

18 without being attached to the case as you are, because in our self -- we

19 are detached from -- from your interests or from their interests. What I

20 tried to make you understand, that you are dealing with three professional

21 judges. At the end of the day, what you are going to get, and what the

22 Prosecution are going to get, and believe me, we are experts at this, is a

23 clinical, surgical intervention. We are going to pick up the various bits

24 and pieces of the evidence and the law applicable and I can assure you

25 that that is what is going to count, and it will be a neat, clear,

Page 9102

1 surgical intervention.

2 So if you want to go your way, go your way; go whichever way you

3 like. There is the message that I'm trying to convey to you. I know that

4 it is difficult. I know because I was a defence counsel myself for a long

5 time, and I hated when the judges treated me like the way I am treating

6 you. But I also realised that many a time they were right. And as we go

7 along, you will realise that I am right. And at the end, you'll probably,

8 both of you, realise that, that I am right, that there may be areas that

9 you are so concerned about that we basically couldn't care for.

10 So, please, put yourself in our position and prepare -- pretend to

11 be the clinical surgeons that we are going to be, and stick to what is

12 exactly and strictly relevant to the case, and what is relevant to the

13 case, very much so, is yes, effective control, so then put it. So do you

14 think we are going to tell you, on effective control you are limited only

15 to one witness, two witnesses? Please, bring as many witnesses as you

16 like on effective control. But you should also be able to know which

17 effective control are we talking about? Is it Oric's effective control

18 throughout the entire period on a regional level, on a municipal level?

19 What are we talking about? We are talking of some inhuman and cruel

20 treatment and deaths in two places over a very short period of time and an

21 allegation that your client went there with evidence which goes in his

22 evidence and evidence that goes against him. The whole question is -- no

23 one is saying: He did it. No one is saying, Ah, you see, Oric, Oric, is

24 personally responsible for the killing of these guys or for the -- what is

25 being alleged is that ultimately he is responsible under 7(3). So that is

Page 9103

1 what -- that is what you have to fight if you think there is a case to

2 answer. The same as to the -- to the attacks, the wanton destruction

3 attacks.

4 The whole issue is not whether the Bosnian Muslims had a reason or

5 not to attack. We are telling you they had every good reason to attack.

6 They would have been very stupid and very irresponsible had they not

7 attacked. But at the end of the day the question is the following: During

8 these attacks, was it necessary to have these houses and all these houses

9 destroyed? And there, there are various points that are important. Were

10 they destroyed by troops, by civilians, or were they destroyed

11 collaterally? Was there fighting -- they had to be destroyed because the

12 Muslim forces were being attacked from there or whether they were -- I

13 don't know.

14 But if you feel these are relevant, then this is what you -- I

15 mean, to attack that attempt by the Prosecution to prove that there was a

16 systematic conduct on the part of the Muslim forces everywhere, yes, let's

17 say that the Prosecution proved that. Are we going to conclude,

18 therefore, that we don't need to go into the question of what happened in

19 Jezestica or Kravica because, you know, they were on this rampage already

20 from before? No. We would care very little on what happened before and

21 concentrate on what happened which is relevant to our indictment. This is

22 what I am telling you, this is going to be clinical. And if you don't

23 understand that, we are very far from -- from understanding --

24 understanding each other, and this is what I'm trying to avoid by this

25 entire exercise.

Page 9104

1 Is there anything else, Mr. Jones, that would you like to add?

2 MR. JONES: Yes.

3 JUDGE AGIUS: Before I proceed any further.

4 MR. JONES: Yes. And it's a matter of the calculations in

5 arriving at how much time is required. I'll put some statistics forward

6 so that we can all see what we are talking about. The Prosecution case --

7 JUDGE AGIUS: I see that when it suits you, yes, you make

8 comparisons but when it doesn't, no.

9 MR. JONES: This is just for the purposes of --

10 JUDGE AGIUS: Go ahead. I'm ...

11 MR. JONES: It's not -- it's not an equality of arms argument.

12 It's --

13 JUDGE AGIUS: It's okay. I understand that. I mean ...

14 MR. JONES: Yes, no, it's simply to say that --

15 JUDGE AGIUS: One moment, because I lost the paper I had my notes

16 upon. One moment, Mr. Jones. I don't know where I put it. Yeah, okay.

17 MR. JONES: Yes. It's a different point which is that we want a

18 realistic assessment, actually, of what nine weeks or fen weeks means

19 whether it comes to scheduling because the Prosecution case lasted - I'm

20 subject to correction on any of this - but 15.491 minutes. If you divide

21 that by 100 days, which excludes opening speeches and Rule 98 bis, you

22 come to an average of 2 and a half hours per day of sitting. That's very

23 important for really estimating how long the Defence case will need to be.

24 Now, that's -- even if we sat five days a week, if the Trial

25 Chamber sat five days a week, that would only yield 12 and a half hours a

Page 9105

1 week on this average, 12 and a half hours of testimony. But very often in

2 fact -- and during the Prosecution case we didn't sit five days a week

3 and, in fact, the average works out at three days a week. That's 105 days

4 of sitting divided by 35 weeks. So in fact even on the assumption of us

5 having 20 witnesses, we would need twice as long as was predicted in the

6 meeting yesterday. We wouldn't be able to finish by -- on the estimate of

7 us having 3.25 hours or whatever per witness. In fact, that would take us

8 to the beginning of December. It wouldn't take us to the end of October

9 based on what we in fact -- the number of minutes and hours that we

10 actually sit. Our calculation is that if the Chamber continues to sit as

11 it's been doing, in other words an average two and a half hours per day on

12 average three days a week, that gives seven and a half hours per week of

13 testimony. In nine weeks, that means the Defence would have about 33.75

14 hours on the assumption we would have roughly 50 per cent after you add

15 cross-examination by the Prosecution and questions by the judges, and that

16 actually comes out to between an hour and an hour and a half for each

17 witness.

18 And so obviously that -- clearly, I'm not going to make

19 comparisons there that, but Major Mujkanovic was six days, Priors Tucker,

20 four days. I mean, we can't envisage a situation --

21 JUDGE AGIUS: You cannot, you cannot.

22 MR. JONES: We on average have an hour, an hour and a half for our

23 witnesses it's completely unrealistic. So we would ask in any calculation

24 of when the Defence case will end, that it be a realistic one based on

25 actually hours and minutes of sitting and so, for example, if the Chamber

Page 9106

1 is to say we grant you 200 hours or 100 hours or 500 hours, that's a lot

2 more helpful than saying the case should be finished in nine weeks, i.e.

3 by such and such a time. That's one point I want to make.

4 I also do wonder and the Rule obviously -- the Rules provide for

5 number of witnesses being set, but at the same time in light of what

6 Your Honour has been saying about focusing clinically on the essentials,

7 one suggestion comes to minds which is that, let's say, on Bijelovac there

8 are 15 units allegedly involved, and we can bring in 15 witnesses but each

9 of them only coming in for half an hour and saying I was in the Tokoljac

10 [phoen] unit and we weren't anywhere near there, or I was in the Suceska

11 unit and we were there, but we had nothing to do with Oric, or whatever,

12 then it's certainly more useful to have more witnesses. It's more easy

13 for us to be clinical than for us to have a fixed number of witnesses. So

14 that thought springs to mind.

15 I also want to mention two more points, very briefly, that we also

16 felt there wasn't sufficient interval for filing for drafting post-trial

17 briefs. Most cases, I think, again not to make comparisons, but six weeks

18 to two months is normal. We were looking at two or three weeks for --

19 being envisaged for us to file post-trial briefs. And we just -- we

20 consider that would not be enough -- I mean, it would be woefully

21 inadequate for us.

22 And fourthly, I wanted to mention that, of course, Rule 92 bis

23 means that we could also cover a number of areas using that Rule, but

24 again that's subject to the Prosecution not objecting to a large number of

25 92 bis statements being used, and finally --

Page 9107

1 JUDGE AGIUS: Or cross-examination being asked.

2 MR. JONES: Yes, but just indicate that depending of course on

3 what Your Honours decides we may try to make extensive use of 92 bis. And

4 finally for these witnesses coming up, the four we've scheduled we have

5 had to do everything in a rush, and I think it would be impossible for us

6 to bring in other witnesses at this stage. I mean, there's all the

7 arrangements for visas and whatnot. No matter what happens they would

8 have to remain the same.

9 JUDGE AGIUS: I think you will have to make an effort there,

10 Mr. Jones and I'm sure that if you make an effort, you will get there.

11 Let me -- okay, anything else? Before I take the floor again,

12 which will not be the last time, Mr. Wubben, I got the impression that you

13 wanted to say something on --

14 MR. WUBBEN: Yes, Your Honour.

15 JUDGE AGIUS: Yes, go ahead.

16 MR. WUBBEN: First about the last issue regarding the last issue

17 of the witnesses if there is any rescheduling of witnesses, new witnesses,

18 well, my learned friend already addressed the issue of the organising and

19 even if it is hard to do so and to overcome, there is also the issue then

20 of the Prosecution who had to prepare for such new witnesses and need the

21 time for it.

22 JUDGE AGIUS: Definitely.

23 MR. WUBBEN: It's rather hard to overcome if it is even possible.

24 I want to address this. Also, of course, we will cooperate whenever

25 possible and when it comes to the 90 bis strategy, if proposed by the

Page 9108

1 Defence, we will look into the matter then during the trial.

2 What I'd like to underline is I notice the kind of difference

3 between the calculations from the 65 ter conference and today as proposed

4 by Defence. I concede to the matter because I don't have a calculator

5 with me.

6 JUDGE AGIUS: I'm not following you, the calculation in minutes

7 and hours and -- okay, all right.

8 MR. WUBBEN: Dividing by 100. I can understand that it is two

9 times 50.

10 JUDGE AGIUS: We have a much more practical approach.

11 MR. WUBBEN: I will leave that up to your judgement. Anyhow, what

12 the discretion of this Bench is of today the --

13 JUDGE AGIUS: One moment. Yes.

14 MR. WUBBEN: Shall I? Okay.

15 JUDGE AGIUS: Sorry. It's a question on scheduling --

16 MR. WUBBEN: It's okay.

17 JUDGE AGIUS: -- and courtroom availabilities. Never a dull

18 moment, here.

19 MR. WUBBEN: Even on Friday, Your Honour.

20 JUDGE AGIUS: No, on Friday, at least, you have the satisfaction

21 of looking forward to the next couple of hours when it will be all over

22 and you don't have to wake up tomorrow morning for another ordeal. So

23 let's proceed.

24 MR. WUBBEN: Yes, Your Honour. When it comes to the discretion of

25 the Trial Chamber, indeed we have to address today the issue of the

Page 9109

1 witness list and the discretion and decision by the Trial Chamber to

2 clarify whether or not that list should be limited. Now, as I envisaged

3 yesterday, I brought forward that it is appreciated when Trial Chamber is

4 in advance transparent on such areas as defined as clarification to limit

5 the witnesses and to suggest that to the Defence, as we see it in the

6 Rules, to call upon the Defence to limit the case. It's much appreciated

7 if --

8 JUDGE AGIUS: It's -- we can't escape that. We have to do it.

9 MR. WUBBEN: Yeah. That's why it's also appreciated by me when

10 those areas are defined and I noticed that there were a kind of -- a

11 number of 11 of such areas, most of them even falls within roughly

12 speaking the areas that we would like to confirm and to stipulate or

13 concede, and more or less during the trial we have often tried to get

14 along with the Defence and tried to make an agreement and call upon to

15 negotiate further with us.

16 At the same time, Your Honour, when it is a clarification to call

17 upon the Defence to limit their witness, it's of course another matter

18 when those areas are defined as factual findings as such, and let me,

19 please, further identify it for you because it might be a concern and it

20 is a concern by me, but it might also be leading to an answer, a response,

21 by this Trial Chamber that clarifies in such a way that I don't have the

22 concern any longer. Now, when it comes to a factual finding as such, we

23 are aware that we have findings in the 98 bis ruling and we have finding

24 in the final decision-making, so that comes by the end of the year. And

25 when these areas are labelled as factual findings, also a finding in

Page 9110

1 favour of the Defence, we can only understand it in the framework of the

2 clarification to call upon the Defence to limit their witness number as

3 link it to the Defence case and not the overall case. So binding the

4 Prosecution, even if they can cross the witnesses in the Defence case.

5 Let me further underline, a factual finding being the same as such areas,

6 one or more of those areas, might even be considered then, if not

7 clarified further by the Trial Chamber, as being a designing, final

8 finding by this Trial Chamber without being yet in a position to give a

9 final judgement.

10 JUDGE AGIUS: Yeah. I quite understand what you mean, but we

11 tried to make that clear, that this is a commitment that we are making

12 with the Defence.

13 MR. WUBBEN: Yes.

14 JUDGE AGIUS: On these areas, you have our word, you don't need to

15 bring evidence. That's it. We'll confirm our position as you say at the

16 last moment, and we are not binding you. That's where Mr. Jones is

17 completely -- completely right. This is not agreed facts. These are not

18 agreed facts.

19 MR. WUBBEN: M'hm.

20 JUDGE AGIUS: What I have said and the responsibility that we have

21 taken upon ourselves to tell the Defence you don't need to bring evidence

22 on this, we are happy with what we have received already, or, like

23 Srebrenica genocide 1995, because we do not attach to it any importance in

24 relation to what Mr. Oric is standing -- has -- is standing charged with,

25 we are not binding you.

Page 9111

1 MR. WUBBEN: So, Your Honour --

2 JUDGE AGIUS: These are not agreed facts. There is where

3 Mr. Jones is right, but Mr. Jones and the Defence have got the commitment

4 from the Trial Chamber that when we tell them you don't need to bring

5 evidence on this, we are not going back on them and say, but, listen, this

6 is -- this is all your fault because you didn't, after all, address these

7 matters when you could have addressed them. So the bottom line is that --

8 I don't think we can make it clearer than this. We are not deciding the

9 case. We are not even deciding officially these facts. But we are

10 telling -- we are telling -- we are telling the Defence, "You -- you don't

11 need to address these and you have our word that you will not suffer any

12 consequences because you have not addressed these issues." This is

13 basically it, which is done in all jurisdictions. I mean, we stop

14 witnesses and we sometimes we tell them you don't need to testify on this.

15 MR. JONES: May I respond to that, Your Honour.

16 MR. WUBBEN: No, Your Honour.

17 MR. JONES: This raises grave concerns.

18 JUDGE AGIUS: Because ultimately these go, we don't want you to

19 bring forward evidence because with we are satisfied with what we have and

20 we are also satisfied that the evidence that there is, whether he agrees

21 with it or whether he likes it or not is in your favour and not against.

22 MR. JONES: I just have a question in that regard --


24 MR. JONES: -- which is, what if -- if the Prosecution then

25 cross-examines one of our witnesses to show that there was no military

Page 9112

1 necessity for the attack on Bjelovac, then where do we stand?

2 JUDGE AGIUS: Mr. Jones, we are not going to open doors as to

3 whether there was any military necessity to attack Bjelovac. Please try

4 to understand me. What is of concern to us is whether, in the attack on

5 Bjelovac, it was persons for whom he may ultimately be responsible that

6 wantonly destroyed houses there, and whether that was militarily

7 necessary, not whether it was necessary to attack Bijelovac. We are not

8 going to a-- it may be addressed now or later by the Prosecution but ...

9 MR. JONES: But surely that means that the Prosecution shouldn't

10 cross-examine on any of those points.

11 JUDGE AGIUS: We are not going to allow to you to question

12 witnesses on those points and therefore there should be no

13 cross-examination. If they attempt, we will decide what to do. If

14 what -- if our decision means that it reopens something for you that we

15 told you it's closed, then we'll give you the opportunity. This is

16 basically it.

17 [Trial chamber confers]

18 JUDGE AGIUS: That is not -- we are not -- Judge Eser is making

19 this clear. We need to make this clear. We are not telling you in any

20 way you don't need to bring evidence when it comes to the aspect of

21 military necessity to burn or destroy those houses. That is not included

22 in what we said about the absence or the decision on our part not to

23 require from you evidence on the military necessity to attack the various

24 villages. That is one thing.

25 The other military necessity is another. That is, I would say,

Page 9113

1 your problem because I'm short of any other words for the time being. But

2 that is what you need -- what or what I suppose you would need -- need to

3 address if you feel that you should address it. But you don't need to

4 address the question of whether there was any military necessity to attack

5 Jezestica or Kravica or whatever. If the Prosecution brings -- adduces

6 arguments which convinces us that we should open that chapter, then we are

7 going to let you bring evidence on that. This is basically it. I think I

8 made it clear.

9 Mr. Wubben, we are sort of - how can I explain it in better

10 terms? - we are telling the Defence there are some areas which have

11 already been covered, partly because the witnesses of the Prosecution

12 during examination-in-chief gave all the information that we think we

13 need. Secondly, because upon cross-examination, some witnesses or others

14 also gave all the information that we require, and together, we are -- we

15 have reached now a stage where, if you try to bring further any more

16 evidence on this or that particular subject, you will only be redundant in

17 your evidence and in your submission. We don't need it any more. We are

18 not telling that you with you don't need to adduce evidence in any area

19 which we believe calls upon you to answer, sort of. Do you read me? I

20 mean, we are talking of areas where we believe that you don't need, which

21 we believe we don't need to address. Any other area which we may also

22 think have enough -- received enough evidence, but which we think the

23 evidence is such that it -- we would only benefit and increase our insight

24 into the case if you adduce evidence, then it's up to you. We can't force

25 you to bring evidence, obviously. You also have the right to remain

Page 9114

1 silent.

2 MR. JONES: It's very clear to our point of view.

3 MR. WUBBEN: Your Honour, I would like to protest. My learned

4 friend can interrupt you. I have the politeness not to interrupt you and

5 it was my submission in which you asked me a question.

6 JUDGE AGIUS: Yes, okay.

7 MR. WUBBEN: It's not to be rude to my learned friend now --

8 JUDGE AGIUS: No, proceed Mr. Wubben.

9 Please, Mr. Jones, you will have your turn.

10 Mr. Wubben, sorry.

11 MR. WUBBEN: I am obliged to accept that you will indeed have your

12 turn but I would like to proceed. Because when it comes -- this becomes

13 more and more clear to me but I guess the submission standing when finding

14 is so looking like factual finding and the final factual finding. So it

15 isn't. It's a clarification of -- that certain areas are covered and I

16 would like to give the opportunity to Ms. Patricia Sellers to further --

17 JUDGE AGIUS: In fact, let us make it clear, that we may end up

18 ultimately confirming exactly these factual findings, so maybe we won't

19 even need to go into some of them, and in all probability we won't even

20 need to go into many of them, but at the end of the day, if you are

21 unhappy with our decision, with our final decision, we have at no time

22 tied your hand because this is not being presented as agreed facts. It's

23 not even being presented as facts that the Trial Chamber is taking

24 judicial notice of. So please do make the distinction. We are not taking

25 judicial cognizance of these facts. We are just saying,"Mr. Jones, Madam

Page 9115

1 Vidovic, we've heard enough on this. We don't want to hear any more."

2 And we are not going to come back to you and tell you, "Ah, but listen

3 these were the facts, you should have been wiser, you should have not

4 listened to us, you should have brought evidence." So this is basically

5 it.

6 Ms. Sellers.

7 MS. SELLERS: Thank you, Your Honour, just two points of

8 clarification because I think it could be related to terminology. In

9 terms of the attacks on the village, yesterday it was conveyed to us by a

10 Senior Legal Officer that there was a macro-military necessity and a

11 micro-military necessity. If I just might rephrase that I think you're

12 referring to, you've heard sufficient evidence on the macro-military

13 necessity but not necessarily, well, the Defence just in their submissions

14 or evidence that, if they choose to bring it forward, in terms of the

15 micro-military necessity as relates to wanton destruction. It does it not

16 mean, if I understand correctly, that yes, the attack, for example of

17 Bjelovac or Fakovici is legitimate in and of itself. I think you're

18 saying that the attack occurred; that is not a relevant issue here. Our

19 relevant issue is the military necessity as relates to the wanton

20 destruction of the property and that relates back to the 98 bis.

21 That's -- I --

22 JUDGE AGIUS: This is -- basically what we are saying is this:

23 That we don't want to hear any further evidence on whether it was

24 militarily necessary to attack these places.

25 MS. SELLERS: Yes, thank you, Your Honour.

Page 9116

1 JUDGE AGIUS: We've heard more than enough but as to whether there

2 was any military necessity to destroy these houses, we are not saying

3 anything. We are just drawing the attention of the Defence that they

4 don't have a burden of proof, they haven't got the burden of proof shifted

5 on to them. The burden of proof of showing of proving that there was no

6 military necessity to burn down these and destroy these houses, has always

7 been and will always remain with you.

8 MS. SELLERS: Your Honour, we certainly understand that and accept

9 that and proceeded basically in that manner. If I might just ask

10 clarification on a subsequent issue, and that's when we are talking about

11 the facts and having made a pact with the Defence, the Prosecution takes

12 that to mean is that you've -- incognant [phoen] of facts that have come

13 forward have come forward with the Prosecution case via Prosecution

14 witnesses and via the cross-examination of Prosecution witnesses. These

15 are not findings beyond a reasonable doubt which can only be made at the

16 stage of the trial when the judgement is being considered. I believe this

17 is what the Bench is saying to us.

18 JUDGE AGIUS: Well, let's put it like -- I don't think that we

19 have a question now because what needs to be proven beyond reasonable

20 doubt at the end of the day is the guilt of the accused. So all the rest

21 is relevant and relative.

22 MS. SELLERS: Okay, Your Honour.

23 JUDGE AGIUS: So I think you understand.

24 MS. SELLERS: Yes, I think that is our same understanding.

25 JUDGE AGIUS: If we are telling the Prosecution -- sorry, the

Page 9117

1 Defence, that we are satisfied already with the fact that Srebrenica was

2 under siege before, during, after, that this was an intensive siege, it

3 involved the surrounding villages which were also part of the

4 Srebrenica -- that they were being bombarded from the air and from the

5 mountains, that the people were starving, that the hospital was a -- in a

6 state of -- in a critical stage which is unbelievable, we could add

7 what -- what we were told, but this was hell on earth. I'm telling the

8 Prosecution, listen, we've heard enough, please -- the Defence, sorry.

9 Not the Prosecution.

10 MS. SELLERS: I agree, Your Honour.

11 JUDGE AGIUS: Please, don't bring any further evidence on this.

12 The way we are saying it also means that we are not then going on the

13 Prosecution later on and say, listen, after all, this was not clear at

14 all. There was -- there were problems. I mean we are not that sure that

15 the situation in Srebrenica was that critical and frankly you should have

16 addressed this matter. We are not going to do that.

17 MS. SELLERS: Thank you, Your Honour.

18 JUDGE AGIUS: So it is a pact with the Defence. Yes, it is a pact

19 with the Defence because if it's not a pact we cannot tell the Defence you

20 don't need to bring evidence.

21 MS. SELLERS: Your Honour, thank you. We understand that. That's

22 the clarification we wanted, that we would not be limited neither in our

23 cross-examination if any of those areas were touched on by the Defence or

24 tangentially incurred or probably implied toward the credibility of one of

25 the witnesses. But I think we were just trying to stay within the Rules

Page 9118

1 of Procedure and Evidence as relates to the factual findings.

2 JUDGE AGIUS: The thing is this: What I want you to be sure of is

3 that you are dealing with a Trial Chamber that puts its top priority,

4 number one, furthest. So if at any time during cross-examination you open

5 up an area that we tried to close, then you will be opening up the

6 opportunity for the Defence to bring forward more witnesses. Am I making

7 that clear?

8 MS. SELLERS: Your Honour, I think we will be quite alert to that.

9 JUDGE AGIUS: So we may stop you, just like we may stop witnesses

10 of the Prosecution -- of the Defence if they try to go beyond what we

11 consider to be relevant and necessary. And we can stop you, and --

12 provided we make sure that the entire process is fair and just.

13 Now --

14 MS. SELLERS: Excuse me, Your Honour.

15 JUDGE AGIUS: Yes, I'm sorry. I apologise to you.

16 MS. SELLERS: We are still in the midst of our submission and

17 Mr. Wubben conclude. One other issue that we felt that we might raise at

18 this time because we are talking about scheduling, we are talking about

19 facts as they relate to the case, and certainly, the Prosecution might,

20 that depends on the evidence of the Defence, might have a rebuttal case,

21 and so I realise that that has not been up unto this point considered

22 within the scheduling. It rests a possibility, and I just want to alert

23 Your Honour's attention to that since we are on the subject.

24 JUDGE AGIUS: Yes, we are fully aware of that. We are fully aware

25 of that. But we prefer to leave that until later if we need it to address

Page 9119

1 that.

2 MR. WUBBEN: Yes, Your Honour, and that finalised because that

3 issue already covered my final part of this submission. I thank you for

4 that.

5 JUDGE AGIUS: All right. So now, let's -- yes, Mr. Jones.

6 MR. JONES: Yes, now I think I do need to responds on a couple of

7 items there because I'm concerned that the whole edifice upon which there

8 was actually a means of reducing the Defence case, namely that findings,

9 and I use the word "advisedly" because Your Honour said findings

10 repeatedly, which would actually enable us to have something which we

11 could rely upon and not bring evidence is going to crumble if it's diluted

12 in the way the Prosecution is suggesting. If I may just briefly deal with

13 that. For example, the example which my learned friend gave about -- that

14 she understood you to be saying that military necessity in a macro sense

15 was irrelevant, not that there was military necessity, well, I see what

16 Your Honour said at page 46. You give the impression -- "you're very much

17 concerned with the importance of proving to us the military necessity

18 there was to attack these various villages, all of them, the ones in the

19 indictment. We are telling you that you don't need to prove that. We are

20 already granting you that from all aspects there was a military necessity

21 and an urgent military necessity. It was a matter of life or death to go

22 on attack and try to secure food, medicine, weapons, or whatever." Now,

23 there, Your Honour is not saying it's irrelevant. You're saying we found

24 there was military necessity and I want that to be clear.

25 JUDGE AGIUS: Yes, and we are not going back on that. But if the

Page 9120

1 situation arises at any one given moment, Mr. Jones, that the Defence

2 stand up -- the Prosecution stand up on cross-examination and they say,

3 "Your Honours, this has become crucial are, we need to address it," and

4 in our judgement we grant them time address it, then you are going to be

5 granted equal opportunity, if not more, to address it when we had

6 previously told you not to address it. So in other words you have our

7 guarantee that if we are telling you, you don't need to address a matter

8 now, today, today -- I mean not today, as we go along during the Defence

9 case, we mean it. We are not playing any tricks.

10 MR. JONES: That was my second point.

11 JUDGE AGIUS: In other words we are certainly not telling you this

12 is the position today but it will change when we come until the final

13 decision or to the final decision after that we have -- you have concluded

14 your case. It's not the case.

15 MR. JONES: There's my second point, and it's a general one is--

16 my concern is this is a general one. My concern is if the Prosecution try

17 to cross-examine on any of the findings which you made, so, for example,

18 they seem -- they try to suggest to one of our witnesses that there

19 weren't weapons in Fakovici, that the Serbs were not better equipped or

20 any of the -- on any of those matters, then it's not just where we haven't

21 examined in chief on that, then prima facie they should not be putting

22 such questions. If they do, it's not just that we can re-examine on it,

23 but actually we can go back and say, "Right, we want to reinstate five or

24 ten witnesses who are going to deal with those points." I want to

25 safeguard our position very clearly on that.

Page 9121

1 JUDGE AGIUS: Mr. Jones, I think you are all perfectly capable of

2 drawing a distinction. I made it clear that what is relevant for us is

3 not whether there was any military necessity to attack Jezestica, Kravica,

4 Bjelovac, and wherever.

5 And we are saying it because we are satisfied on the basis of what

6 we have heard that, to us, that is no longer in issue to the extent that

7 requires you to address it. If that changes, we ourselves will tell you,

8 Mr. Jones, there is a problem here. We told you that we were satisfied

9 that there was -- that we -- that you didn't need to address the question

10 of military necessity to attack Bjelovac. Now it seems that the evidence

11 that is coming forward is such that we have to open that wide, wide open.

12 And in that case, yes, we are going back on what we have told you, but you

13 will be given the opportunity to bring forward all the evidence that you

14 need.

15 But then you ask me what if the Prosecution in cross-examining a

16 witness in relation, for example, to the events in Fakovici, asks the

17 question: Did you see any weapons in Fakovici? Of course that is a

18 legitimate question. Come on, we are -- we are dealing, as far as I tried

19 to convey to you, with the military necessity to destroy the houses or

20 burn down the houses in Fakovici. So if the question the finding of

21 weapons or the use of weapons in Fakovici during the attack becomes

22 relevant, of course they put question. But there is something that we

23 never told you, you don't need to bring evidence about. In other words,

24 what happened in Fakovici, in Jezestica or in the other places, of course

25 it's of concern to you. So the question -- the question -- the question

Page 9122

1 that arises is whether there was military necessity to burn down those

2 places. Anything that is relevant remains relevant for that particular

3 purpose. But you don't have the burden to prove that there was military

4 necessity. It's their responsibility to prove that there was no military

5 necessity. So how -- that is going to fit -- I mean, what they are going

6 to gain by asking questions whether there were any weapons or a cache of

7 weapons in Jezestica or wherever, I mean, for the time being, it goes

8 beyond me. I may be wrong.

9 MR. JONES: You might need to destroy places where weapons are

10 kept.

11 JUDGE AGIUS: Okay. But there is what I'm trying -- because we

12 did -- we didn't go through this exercise blindfoldedly or in a path --

13 haphazard manner. We gave it a lot of thought.

14 Yes, Mr. Wubben, sorry for having interrupted you again.

15 MR. WUBBEN: No I had finalised my submission.

16 JUDGE AGIUS: Please take your time. We are not in a hurry and

17 what we don't succeed in finishing on today we will carry on to Monday.

18 MR. WUBBEN: Thank you. Your Honour, when I learned your response

19 towards the concerns of my learned friend, again, when you address it in a

20 way like you did, telling the Defence it is -- you shouldn't worry because

21 we grant you this in such a way that you don't have to address it, and if

22 the Prosecution addresses such a question, we have to decide upon -- to

23 allow it, then the final outcome is that, yes, it is a clarification to

24 limit the number of witnesses, and it will lead, perhaps, to that

25 consequence, but also, that it has the same power as a factual finding.

Page 9123

1 JUDGE AGIUS: Well, it may have.

2 MR. WUBBEN: Yes, but if it has the same power as factual finding

3 then it is a factual finding as such, and then -- then I would like to

4 suggest, and advise the Trial Chamber, to be very clear whether or not it

5 is a factual finding and whether or not the Prosecution is allowed to also

6 include in there -- in the Defence case, relevant questions regarding that

7 area.

8 JUDGE AGIUS: Yes, but if the moment you include or you try, first

9 of all, you will only be able to include them if we allow you to. That's

10 number one. And you will have to justify why you want to then reopen

11 those areas that we have closed. And secondly, if we allow you to reopen

12 those areas, then they are going to be allowed to reopen those areas. So

13 this is why I'm telling you these are not factual findings in the way that

14 you are having it in your mind. These are factual findings, yes, to an

15 extent, that we are telling them, telling the Defence rebus sic stantibus,

16 things as they are, you don't need to address these matters for the time

17 being. If the situation changes, yes, we will call upon them to address

18 these matters. This is -- this is it. But as the situation is at

19 present, they don't need to address it, in our judgement.

20 MR. WUBBEN: Okay. So no factual finding as such with a view to

21 the final judgement or the 98 bis and second, I request then Trial Chamber

22 in their written ruling on Monday to be, if possible, to be clear in that

23 respect.

24 JUDGE AGIUS: Mr. Wubben, we will only say these are the areas

25 that the Defence need not address in the present circumstances. If the

Page 9124

1 circumstances change, we are going to call on them -- listen, situation

2 has changed and now you are free -- so now, let me move to the other areas

3 that we have -- first of all, I wish to thank you both, Prosecution and

4 Defence, for your very -- for the very constructive way in which you have

5 cooperated with the Trial Chamber in trying to iron out the differences

6 that resulted after yesterday's 65 ter meeting. It doesn't mean to say

7 that we are reaching an agreement. Far from it. It doesn't mean to say

8 that whatever we decide will go down well with either or both of you but

9 it will be our decision anyway.

10 We revised again, reviewed again, dedicating a lot of hours,

11 which, considering our age, is quite a feat, to your documents again,

12 going through each witness, one by one, taking off those elements that we

13 don't need to hear about, other elements that we think are not necessary,

14 overlapping, repeated, repetitions, and whatever. I told you also that

15 we -- the indication that you had yesterday, two witnesses here, three

16 witnesses there, two witnesses here, three witnesses there, was more or

17 less a reflection of the exercise that we had been doing. There were

18 various aspects that you don't -- it doesn't appear to us that were dealt

19 with yesterday, not because of any fault of Mr. Von Hebel, but because of

20 the electrically charged atmosphere that developed as you went along,

21 which resulted in what I consider may be a premature conclusion to the

22 meeting.

23 We have come to the following conclusion, having again gone

24 through the entire list, going through -- through the very sterling work

25 that our staff did, working long hours with us as well. We have come to

Page 9125

1 the conclusion that the case for the Prosecution can be finished by the

2 end of September. Am I just speaking of weeks? I know that basically

3 sometimes it happens that one particular week we cannot sit because there

4 is courtroom maintenance or one other particular week we cannot sit

5 because of this or because of that. We are drawing a distinction between

6 days when we cannot sit because of reasons beyond our control and days

7 when we do not sit because of reasons that are attributable only to

8 shortcomings on the part of the Defence. We are also aware that if during

9 a particular sitting an hour or two are lost on the submissions on a

10 particular issue, that's one hour or two taken from the time of the

11 Defence. So the position is as follows: We are saying case for the

12 Prosecution ends end of September.

13 MR. JONES: Case for Defence?

14 JUDGE AGIUS: Case for the Defence -- case for the Defence ends

15 end of September but if we have lost three days, four days, five days,

16 through no fault of the Defence and simply because we just couldn't -- we

17 couldn't sit, then obviously those are going to be recovered and given

18 back to the Defence. Similarly, if there are hours lost because of

19 pleadings and other incidents that may arise, those will be accumulated

20 and given back to the Defence. Any time lost because of shortcomings, for

21 example the Defence has failed to bring any witnesses, we will take into

22 consideration any submission that there may be. If we think that there is

23 a justification, that time lost will be recovered. If there is no

24 justification, in our opinion, that will be time lost.

25 After the end of September, there will also be three additional

Page 9126

1 days, during which the Defence will be allowed to bring forward evidence,

2 witnesses, of a mitigatory nature. You know that in our system, we do not

3 finish first the stage of the trial stage arriving at a conviction and

4 then proceed with a separate hearing on sentencing. We don't have that

5 system here. So essentially, the Defence, unfortunately, finds itself in

6 the situation where it has its hands tied. Any evidence in mitigation,

7 including, for example, strangely enough, evidence on remorse, must

8 necessarily be brought forward during the case of the Defence stage. This

9 is how it is. And we are not going to change it. So there will be three

10 further days during which the Defence will be allowed to adduce such

11 evidence, if they want to, because, Mr. Jones, we are making it clear that

12 we are not forcing you in any way to adduce evidence of mitigation.

13 That's something that you need to think about, and Madam Vidovic, and

14 decide upon.

15 We notice, for example, that in your list of witnesses, there are

16 several witnesses that you purport or propose to bring forward to testify

17 on the character of the Accused. At this point in time, the character of

18 the Accused can be important from a substantive point of view or it can be

19 important from just a mitigation -- mitigatory factor. So you will need

20 to do this exercise in your mind, see whether you would prefer to bring

21 these witnesses together in those three days -- in those three days, but

22 the number of witnesses that we are going to grant you is not going to

23 increase or decrease depending on how many witnesses you would like to

24 bring in mitigation. We are going to give you a number of witnesses, some

25 of which you can of course bring in mitigation during those three days

Page 9127

1 which would leave you untouched. The remaining or the preceding period

2 of -- until the end of September, which you can utilise for the remaining

3 witnesses.

4 The number of witnesses that we have come to, having taken into

5 consideration, again, the list, your representations made to our Senior

6 Legal Officer yesterday, and upon revising again the list, we have come to

7 the conclusion that you can address in a more than satisfactory manner,

8 ensuring a fair trial and a good defence for your client, with the number

9 of 30 witnesses.

10 If at any time the situation changes, I cannot for the time being

11 anticipate how and when or why, but if at any time the situation changes,

12 to an extent that we are satisfied that we would need either more time or

13 more witnesses on any particular issue, we will decide on that as we go

14 along. But for the time being, our decision will be that you will have 30

15 witnesses, those will include also witnesses on character and any other

16 mitigatory factors that you need to conclude by the 30th of June -- of

17 September, plus those extra three days plus any days, any time, that we

18 will need to recover to complete the time that we need -- we think that

19 you need to complete your exercise.

20 This will be of course reduced into writing. We hope to be able

21 to have it ready Monday. I am hopeful but of course we also depends on

22 our staff that have been working overtime time throughout the entire week

23 and you need to realise that we also have an interest in making sure that

24 they are not overworked and not overstressed because then the whole team

25 will suffer, but Monday, we hope to be able to hand down this decision.

Page 9128

1 Yes, Mr. Jones?

2 MR. JONES: Yes, Your Honour, this has dramatic implications for

3 us. I would seek certification of leave to appeal on the basis of the

4 oral decision. We have to move very quickly to safeguard the position of

5 our client, which as I said at the outset we think is -- fundamentally

6 compromises a fair trial for our client and we -- I think, I don't know if

7 Your Honour wishes me to address you at length on Rule 73 and the

8 criteria, but I think it's obvious that this -- the decision will have an

9 impact on the fairness of the trial.

10 JUDGE AGIUS: You have every right to appeal and we will consider

11 granting you certification or not but please do file, have it ready,

12 because Monday you will get the decision. And if you file it afterwards,

13 I mean, after we hand down the decision, we promise you we will come down

14 with our decision the following day, at the maximum, and if there is an

15 appeal, exert all the influence of -- that we can, if we grant

16 certification, we'll -- we'll communicate to the Appeals Chamber the need

17 to have this decided with the utmost urgency. However, I also want to

18 make clear that no appeal will stop us from proceeding any further. In

19 other words, be prepared on Monday, this is not going to take from our

20 trial time. Because it was a -- it will be a written decision filed

21 formally. So Monday, be prepared with Edina or whoever you wish to bring

22 forward as your first witness. That is none -- none of our concern. And

23 we will move ahead.

24 MR. JONES: Your Honour made that --

25 JUDGE AGIUS: Obviously, and this is in your interest because if

Page 9129

1 you take the other approach that you hinted at this morning, say, we will

2 not bring any evidence until this is decided by the Appeals Chamber, we

3 will move ahead just the same and if the Appeals Chamber ultimately agrees

4 with our decision, then we are not going to say, yes, but now -- so, we

5 now start the nine weeks counting from today. We are not going to do

6 that.

7 So I think I am being -- I'm sorry, I have to deal with you this

8 way but this is the way which any other judge would have to deal with you,

9 given the circumstances. It has got nothing to do with -- I can -- with

10 Judge Brydensholt or Judge Eser staying here. I can assure you that if I

11 go today to Judge -- to President Meron and tell him we have a problem, we

12 won't finish by end of November, we need -- end of December, he is not

13 going to question it one single moment. But I will not go to

14 President Meron and ask him for an extension to January or to December if

15 I am sure in my heart of hearts having examined that we can easily finish

16 by a certain date. We may be wrong. It may misfire. And if it misfires,

17 I mean I carry the responsibility together with my colleagues and we will

18 go to President Meron and we will say we need more days. But if we don't

19 need more days I am not going to President Meron.

20 MR. JONES: Can I ask that we sit in the afternoon on Monday. I

21 think we're --

22 JUDGE AGIUS: We are sitting in the afternoon --

23 MR. JONES: -- just to give us time.

24 JUDGE AGIUS: On Monday morning, we were sitting in the morning up

25 until about when we were still in Bosnia. That changed when we were in

Page 9130

1 Bosnia.

2 MR. JONES: I know there were moves afoot to maybe have a morning

3 sitting and since we will need the morning for the appeal.

4 JUDGE AGIUS: I tried. Yeah, no, no, no, it's -- we won't be

5 sitting in the morning, but we will be sitting in the afternoon. That's

6 number one. Secondly on Thursday - I think I told you this already, no? -

7 that on Thursday we have to switch to the afternoon, and from Courtroom

8 III to Courtroom I because this courtroom is needed by Judge Liu in the

9 Halilovic case, and he can only hold the sitting in this courtroom. I

10 mean, because of technical reasons. So I took the liberty of saying, yes

11 it's not going to -- it would have been different had it been from moving

12 it from the afternoon to the morning because it may have affected your

13 ability to -- that's the -- that's the -- that's the position. There are

14 a few other things that we need to address. There is a filing by the

15 Prosecution relating to the third amended indictment. There are two

16 filings. One original, one additional.

17 Do you have any comments on your part, Mr. Vidovic -- Mr. Jones or

18 Madam Vidovic?

19 MS. VIDOVIC: [Interpretation] No, Your Honour.

20 JUDGE AGIUS: So we can go ahead on that score. All right.

21 There is the other matter of protective measure. There is the

22 motion by the Defence for the granting of protective measures in relation

23 to certain numbered witnesses. Leaving apart the question as to whether

24 these will ultimately be brought over or not, which is none of my concern

25 for the time being, but it is definitely the concern of the Defence and I

Page 9131

1 need to protect these witnesses for the Defence if they are coming over.

2 Do you have any objection that we grant the protective measures that are

3 being sought by the Defence?

4 MR. WUBBEN: Your Honour, I requested Ms. Patricia Sellers to

5 respond.


7 MS. SELLERS: Your Honour, we are in the course of responding in

8 written form to this motion and we would certainly oppose this motion

9 particularly in terms of the delayed disclosure of five of the Defence

10 witnesses. The reason that we do oppose the delay disclosure is that

11 Defence has proposed to only reveal their identity to the Prosecution. We

12 are not talking about confidentiality within the public realm; we're

13 talking about delaying the disclosure of their identity to the Prosecution

14 at five different time periods, five different intervals, during the

15 Defence case. And we would vigorously oppose that because we do need to

16 prepare per witness, in terms of cross-examination, plus just knowing the

17 identities of all of the Defence witnesses assists us in preparation for

18 cross-examination of the witnesses.

19 In terms of the other measures, Your Honour, for confidentiality,

20 facial and voice distortion, while they testify, with the information

21 that's been furnished to the Prosecutor at this point, we it would oppose

22 it. We do understand it was an ex parte filing and that if there is other

23 information that's before Your Honours that would make your decision

24 different, we would then ask that those protective measures be

25 appropriately tailored. With the information we have at this point we

Page 9132

1 would have to say we oppose it. But I would like to say that it's a

2 two-pronged approach that we had to their motion and we had intended to

3 file that on Monday.

4 JUDGE AGIUS: That's very good to know because if you were not in

5 a position to provide us with a feedback on it today, we were going to

6 insist that you try and respond to the motion as early as possible before

7 the usual time limit that would you have at your disposal under the rules.

8 So I do appreciate that you will be coming back to us on that matter on

9 Monday. The position will be as follows: We will see your response. If

10 we need to address you any further - when I say you, the parties - any

11 further on the matter, we will do so. If we don't, we will proceed with

12 our decision. But this is an area where we cannot sleep on it. Also,

13 because we don't know if any of these witnesses are amongst the ones that

14 the Defence will be -- will be bringing forward, and maybe also at an

15 early stage. So that I don't know. But we need to have this decided.

16 All right? So we expect your response first thing Monday, please, so that

17 we can work on it as quickly as we can.

18 Let me go through the agenda ones more to see if we have left

19 anything.

20 Yes, yes, yes, yes, yes.

21 Now, again, leaving apart this question of -- Mr. Jones, leaving

22 apart this question of appeal or no appeal, that is up to you to decide,

23 and, of course, it's -- we are not going to detract in any way from that

24 right that you have except that, of course, we need to certify it. But I

25 said already that if there is an appeal, it's not going to stop the

Page 9133

1 progress of there case, which also basically means that you will need to

2 provide us with a new witness list, witness list, and we would like you to

3 file that by not later than Monday, the 11th of July. If you encounter

4 problems, then please come back to us with a provisional list on those

5 witnesses that you don't have any doubts, leaving out those witnesses

6 where you are still undecided, and we will give you a further time, which

7 will not be a long time, within which to conclude the list of 30

8 witnesses. Of course, the filing of this list will be without prejudice,

9 and I don't need to explain that or even to say it aloud. You will be

10 filing the list because you need to file the list, and it will not

11 compromise at all your appeal.

12 All right? So, yes, Mr. Wubben?

13 MR. WUBBEN: Your Honour, speaking about appeal, I'd like to

14 put on the record that we also need time of course to respond to that,

15 and --

16 JUDGE AGIUS: Of course, but that -- the position is very simple,

17 Mr. Wubben. I -- maybe I did not make myself clear. What I told

18 Mr. Jones is this: I'm not telling Mr. Jones we are going to certify it.

19 But let's assume for the time being we will certify it. We are telling

20 Mr. Jones the fact that you will appeal will not be of an impediment to

21 the Prosecution of the Defence case. We will start it on Monday, and we

22 will continue. It will also not be an impediment to the Prosecution of

23 the Defence team if you require time to file your response to the appeal.

24 Of course you will file a response. But that will be a problem of the

25 Appeals Chamber to see whether to curtail on your time or not. What we

Page 9134

1 will do is pass on a message to the Appeals Chamber that it is necessary

2 for all of us to have the situation crystallised as early as possible so

3 that both sides, and the Trial Chamber, will know whether we are on the

4 right track or not, because if we are not -- in other words, if the

5 Appeals Chamber comes to the conclusion, which is different to ours, then

6 obviously we have to revise everything, we have to go through all this

7 again, and decide when the case for the Prosecution will finish, how many

8 witnesses they will have, because we still have to do that pursuant to

9 Rule 73 ter. Just like we did with you in the pre-trial stage. You

10 wanted more witnesses and we told you, no, Mr. Wubben, or whoever it was

11 at the time, because it wasn't even myself. You will not be allowed these

12 many. You will not have more than this amount of witnesses for this and

13 this amount of witnesses for that, and that's it.

14 So we are doing the same with the Defence, and in the case of the

15 Defence, we are being extremely more cautious than we could afford to be

16 with you, because with you, our interest is to make sure that you are

17 allowed sufficient evidence to prove your case. With the Defence, there

18 are very crucial rights involved, crucial rights involved, but we are in a

19 situation where two counts are off. So -- yes. Is there any further

20 business that you would like to transact today by way of Pre-Defence

21 Conference?

22 MR. WUBBEN: Yes, Your Honour. And this is with a view to the

23 operational matters for the coming week. Now, there will be a filing of

24 provisional witness list.

25 JUDGE AGIUS: By the 11th.

Page 9135

1 MR. WUBBEN: Yes. And will there also be a modified exhibit list

2 or anyhow, a confirmation that there will be no modification of it?

3 JUDGE AGIUS: Mr. Wubben, I'm sure Mr. Jones is wiser on this.

4 You will have noticed that I did not open my mouth on the exhibits that

5 the Defence wishes to tender. And I am not going to open my mouth on that

6 matter now. That's -- I said the way in which they would like to conduct

7 their Defence is no -- of no concern to us. If they feel that their case

8 is better served by 450 exhibits, that's not going to take from our trial

9 time. It's going to take off time from our time because we will have to

10 read and examine all those documents, which we will, like we will and we

11 have already, examined all the documents that you have brought forward.

12 We will do the same with the -- whether it's wise or not to have all those

13 documents, it's their problem, not mine. So -- don't expect me to comment

14 on that, and don't expect me to put any restrictions on the Defence on

15 documentary evidence. What I would like them to do is to give you a copy,

16 if they haven't, of the photographs and of the video, because I don't know

17 if it's already the video that we have seen. I haven't got a clue.

18 Please show it to the Prosecution so that if they don't have a question

19 with the authenticity, you will also have an indication on whether you

20 need to get those two witnesses over.

21 MR. JONES: Yes, we may first have to decide whether to call them

22 at all.

23 JUDGE AGIUS: Yes, yes, yes, exactly.

24 MR. JONES: Before we show the video.


Page 9136

1 MR. WUBBEN: Your Honour, there is this last minor issue that's of

2 importance for us. There is no, so far, no sequence order of the

3 witnesses for the coming week.

4 JUDGE AGIUS: They will need to do that. No, for the coming week,

5 I think there is. According to me, it is Edina.

6 MR. JONES: Becirevic.

7 JUDGE AGIUS: Then I think it's the ex-SDA politician. Then I

8 think it was that -- the Belgian doctor. Then last was the girl who was

9 15 years old at the time which we are telling you we are not interested in

10 hearing her evidence because we think it is --

11 MR. WUBBEN: That's confirmed by the Defence that that's the

12 orders?


14 MR. WUBBEN: Okay. Thank you.

15 JUDGE AGIUS: And more or less you also have an indication that

16 one will be needed for five hours. That's the second person, the SDA

17 member, five, if not more, and the other one is needed for hour hours, if

18 not more, on examination-in-chief. So more or less you should -- more or

19 less, but I expect you to sit down between now and Monday and organise

20 yourself as to the schedule of witness testimony for the coming week, for

21 the coming two weeks.

22 MR. WUBBEN: M'hm.

23 JUDGE AGIUS: And then of course, Mr. Jones and Madam Vidovic will

24 have to adapt the same procedure we adapted before of handing to you

25 beforehand a list of witnesses they will be showing up the week after or

Page 9137

1 the weeks after, with the names and also the amount of hours they are

2 expected to be in the witness stand.

3 MR. WUBBEN: Thank you, Your Honour. I hope it will be in

4 time.

5 JUDGE AGIUS: Yes, that's a matter of cooperation, but I expect

6 you Mr. Jones and Mr. Wubben, please do meet on Monday and start to thresh

7 these things out, of course without prejudice to your appeal.

8 I thank you all.

9 MR. JONES: Just to say, I think it is clear, but Your Honour has

10 indicated that one of the witnesses you don't think would be particularly

11 necessary, so, of course, we will try and line up another -- another

12 witness.

13 JUDGE AGIUS: You should try.

14 MR. JONES: As long as that's clear.

15 JUDGE AGIUS: You should try. That's your choice is -- will

16 remain your choice. I mean, we are not going to tell you we consider this

17 witness more important than the other because we can't do that. But I

18 think by reading your own list, and by knowing who may be available, it's

19 in your interest not to waste time. And any time lost not to -- due to

20 any fault of your own will be recovered. So if on Monday we need to

21 discuss for an hour urgent matters that may arise, you will be -- are

22 going to be credited with the time lost. This is the position.

23 MR. JONES: Yes, I only clarify it because obviously if we make a

24 great effort to get another witness here in the next week or two, we trust

25 that the Prosecution will bear with us and not of course raise objections

Page 9138

1 that we've added a new witness a week before because of that. Of course,

2 that's the position which we are forced into as of today.

3 JUDGE AGIUS: I will hear what objections Mr. Wubben would have

4 and then both of you would have to abide by our decision. This is -- we

5 are not trying to bully you or to force our way but we are in a situation

6 where we have to put discipline where we feel it is needed. So we may

7 have to end up in that, Mr. Wubben. So you may come up and say, this is

8 not fair, we are -- we may be in a position to say, yes, you are right,

9 there will be no sitting on Thursday and on Friday, and we will credit

10 those days to the Defence. Or else we can say, no, we can proceed, you

11 may have a problem. Try to find a solution. So -- but I can't tell you

12 from now what -- because I don't know who you are going to propose as the

13 next witnesses. I haven't got an idea.

14 MR. JONES: We have an idea.

15 JUDGE AGIUS: So I wish to thank you again publicly, thank you for

16 the constructive way in which you have cooperated with the Trial Chamber.

17 I know that the decision is one which is likely to cause indigestion, but

18 we consider it as a necessary decision and you will receive it in writing

19 on Monday. And then of course we will consider the question of

20 certification.

21 --- Whereupon the Pre-Defence Conference adjourned

22 at 6.17 p.m.